By Steven H. Snyder
Human beings have been naturally reproducing for their entire history, but only in relatively recent history have they been able to do so without sexual intercourse. The first artificial insemination of a woman with donor sperm occurred in 1884,1 and the practice was common enough by the 20th Century that specific provisions for parentage in such cases were incorporated into the Uniform Parentage Act (UPA) of 1973, adopted in Minnesota in 1980 as the Minnesota Parentage Act (MPA).2
Since 1980, however, numerous other methods of assisted reproduction3 have developed, specifically including egg retrieval and in vitro fertilization.4 The advent of intrauterine insemination and reliable in vitro fertilization paved the way for use of surrogacy5 as a means for aspiring parents to have children when they were unable to gestate their own child. The first documented surrogacy by intrauterine insemination was initiated in 1976.6 Since then, surrogacy using in vitro fertilization and another woman’s egg has become the norm. Unfortunately, Minnesota parentage law has failed to keep pace with developing medical technology and the creation of families through these alternative means. As just one example of this, I will discuss the disconnect between the MPA and the establishment of the intended parentage in various surrogacy arrangements.
Surrogacy can be either traditional7 or gestational.8 In both cases, existing Minnesota parentage law presumes the surrogate to be the legal mother at birth by virtue of giving birth and/or bearing a genetic relationship to the child. Depending on the specific circumstances of the surrogacy arrangement, the intended parents may or may not be genetically related to the child, and they will not have any marital relationship to the birth mother. This creates a critical disconnect between the intended parentage of the child and Minnesota law.
How and whether the intended parents who seek to procreate by means of assisted reproduction are presumed to be, or can be made, the legal parents of the child is now governed by laws enacted well before this means of reproduction became viable and common. That law currently requires the asserted legal parent to be related to the child either by having given birth, having some marital relationship to the birth mother and/or a residential relationship to the child, or having a genetic relationship to the child.
In cases in which both heterosexual intended legal parents use their own sperm and egg to create the embryos the surrogate gestates for them, the parents may both be able to establish the necessary genetic presumption of parentage under existing law to have standing to establish their parentage over the resulting child.9 But in various other surrogacy arrangements in which insemination or other donor sperm or eggs are used, it is possible that none of the statutory presumptions will be met by either of the intended parents. Nevertheless, it is solely the procreative intent of the parent(s) that initiates and results in the child who is born.
This article discusses the current disconnect between the intent of the parties in surrogacy arrangements and Minnesota parentage law. It then examines the possible future evolution of surrogacy law in Minnesota based on current trends in case law as well as legislative enactments and proposals that are evolving nationally.
Current Minnesota parentage law
Minnesota establishes parentage of children under the auspices of the 1973 Uniform Parentage Act as adopted, supplemented, and amended in Chapter 257 of the Minnesota Statutes, the Minnesota Parentage Act (MPA). Under those provisions, certain individuals with a recognized orientation to a child based on marriage or other circumstances are granted the right to assert their alleged parental relationship to a child based on limited statutory presumptions.
A child, the child’s biological mother, or a man presumed to be the child’s father under section 257.55, subdivision 1, paragraph (a), (b), or (c) may bring an action:
(a) at any time for the purpose of declaring the existence of the father and child relationship presumed under section 257.55, subdivision 1, paragraph (a), (b), or (c).10
Those presumptions are seen by the court as the complete universe of relationships that grant standing in a parentage proceeding. Without standing, an individual who wishes to assert a legal parental relationship to a child cannot initiate an action to do so. The courts have interpreted this authorization narrowly:
The MPA provides the exclusive bases for standing to bring an action to determine paternity. Whether and when a person may bring an action depends on which presumptions of paternity, if any, apply. Nine presumptions of paternity are set forth in section 257.55, generally divided between those based on marriage... and those based on circumstances other than marriage.... Standing to bring a paternity action with respect to these presumptions is also based on statute.11
A presumption based on proven genetic relationship is also set forth in Minn. Stat. 257.62, subject to an exclusion for donors of genetic material for use in assisted reproduction for the sole benefit of the recipient parent.12
Application of the MPA to surrogacy
The Minnesota Court of Appeals has had one opportunity to apply the MPA to a surrogacy arrangement.13 In A.L.S. v. E.A.G.,14 a gay couple in a committed relationship entered into a traditional surrogacy arrangement with a woman who had expressed the desire to carry their child as a surrogate only. The agreement among the parties was that the woman would be inseminated with the sperm of one of the intended legal fathers, gestate the child, and terminate her presumptive maternal rights as the child’s birth/genetic parent so that the genetically unrelated partner could then establish his parental rights in her place. The surrogate changed her mind after the child’s birth and asserted her presumptive maternal rights. The trial court ruled that the surrogate was not the child’s legal mother and that the non-genetic partner was the child’s second legal father. On appeal, the court of appeals reversed this determination by strictly applying the provisions of the MPA.
In reaching this conclusion, the court evaluated the various presumptions of paternity and maternity. First, it determined that the surrogate was the child’s legal parent by virtue of her two coexisting presumptions of maternity: giving birth and being genetically related to the child. Second, the court determined that none of the statutory presumptions or provisions of the MPA applied to give the non-genetic father a basis for asserting legal parentage over the child. The court reasoned that the non-genetic partner must either be the biological or adoptive parent of the child in order to receive parental rights.15 The court determined that neither of those relationships existed and reversed the district court order making him the child’s father. Essentially, because the non-genetic father could not meet any of the presumptions or requirements of the express provisions of the MPA, he had no standing to assert any legal parental rights even though it was his and his partner’s specific procreative intent to become parents under an express agreement into which the surrogate voluntarily entered.
This same disconnect between the MPA and the intended parentage in some surrogacy arrangements is further underscored in a New Jersey Supreme Court case, In re T.J.S.16 Under essentially the same provisions of the 1973 UPA as adopted in Minnesota, the New Jersey Supreme Court affirmed a court of appeals decision holding that adoption was the only means available for establishing the legal parentage of a person who had no legal presumption of parentage under that statute. Although the facts and arguments are slightly different from those in A.L.S. v. E.A.G., supra, the statutory interpretation of the required parental presumptions—and the outcome—were the same.
In T.J.S., a husband and wife entered into a gestational surrogacy arrangement with a consenting woman. An embryo created by in vitro fertilization using the husband’s sperm and the egg of an anonymous donor was transferred into the surrogate’s uterus for gestation; therefore, the husband had a parental presumption as the child’s genetic father, but the wife had no parental presumption based on either giving birth or having a genetic relationship. The husband and wife applied for a pre-birth order of the trial court to list the husband and wife as the resulting child’s parents on the child’s initial birth record. The trial court issued the requested order on the condition that the surrogate relinquish her presumptive parental rights three days after the birth in keeping with the three-day post-birth waiting period required in adoptions, which the surrogate did. The surrogate cooperated in the proceedings and made no objection.
Upon learning of the pre-birth order, the New Jersey Department of Health moved to vacate that portion of the trial court order listing the intended, non-genetic mother on the birth record. The trial court granted the motion to vacate, holding that the statutory requirements requiring her to have a parental presumption to assert parentage did not violate the intended mother’s equal protection rights under the New Jersey Constitution, and that her sole remedy was to adopt the child. In its detailed analysis of the New Jersey Parentage Act, which is essentially equivalent to the MPA, the court reasoned:
The [New Jersey Parentage] Act defines the “parent and child relationship” as “the legal relationship existing between a child and the child’s natural or adoptive parents, incident to which the law confers or imposes rights, privileges, duties, and obligations. It includes the mother and child relationship and the father and child relationship.” There are several means by which to establish a parental relationship under the Act: (1) genetic contribution, (2) gestational primacy, i.e., giving birth, or (3) adoption. In addition, a rebuttable presumption of paternity derives from the parties’ legal relationship, i.e., marriage or its equivalent, when a child is born during the course of a marriage or within 300 days of its termination. This presumption, that a man is the father of a child born to his wife, extends to a husband who consents to his wife being inseminated with donor sperm under the supervision of a licensed physician.
Nowhere in the Act does the presumption of parentage under Section 43(a) extend to a wife whose husband, while married, fathers a child with another woman, or to a wife who simply acknowledges in writing her maternity of the child. On the contrary, where a husband has a child, born to another woman, while married to his wife, the wife may only establish a parental relationship with the child by adoption. Similarly, the Act contains no comparable analogue to Section 44 that renders an infertile wife, by operation of law, the natural mother of a child born to another woman artificially inseminated with the husband’s sperm and with the wife’s consent. Indeed, as noted in the adoption context, any such provision would conflict with the express legislative enactment affording a birth mother 72 hours to decide whether to relinquish the child before a surrender of her parental rights is deemed valid.
Thus, contrary to the gender-neutral interpretation plaintiffs ask us to adopt, the plain language of the Act provides for a declaration of maternity only to a biologically- or gestationally-related female and requires adoption to render [the intended mother] the mother of [the child]. No alternative construction is plausible and nowhere in the statutory scheme may it be implied that maternity is established simply by the contractual or shared intent of the parties. Indeed, plaintiffs themselves acknowledge that the Act, as written, cannot be extended to confer maternity on [the intended mother] at the moment of the child’s birth, but would have to be rewritten to allow, at the very least, a 72-hour waiting period for [the surrogate] to waive her parental rights to the child born to her. Simply put, the Legislature has determined when a woman is the legal mother of a child, and it does not include the present circumstance.17
This reasoning and the holding based thereon were affirmed by a split decision in the subsequent New Jersey Supreme Court opinion cited above.
Decided in two different jurisdictions under the same statutory scheme, these cases clearly demonstrate that establishing parentage in a surrogacy process is not adequately supported by the current MPA. Surrogacy presents a variety of presumptive relationships to the resulting child, but surrogacy is procreation by intent, not necessarily biology or family relationship as required by the MPA. Under the MPA, the surrogate who gives birth has a presumption by virtue of giving birth. She may also have a presumption based on her genetic relationship to the child in a traditional surrogacy arrangement. If the surrogate is married, her husband will carry the marital presumption of paternity.
The intended parents may or may not hold any of the statutory presumptions. If the intended parents are a heterosexual couple using their own sperm and egg, they will each have a genetic presumption to support their claim for establishing legal parentage. Even in this case, however, their parentage will be established by application of the best interests standard,18 not necessarily the clearly expressed intent of the parties to the arrangement. If one or both of the intended parents uses donor sperm or egg, the non-genetically related intended parent will have no presumption of parentage to grant them standing to assert their parental rights under the MPA. In such cases, the intended parents will only be able to establish their legal relationship to the child through an adoption proceeding with the cooperation and consent of the surrogate. This will always be the case for same-sex male couples, as one of the intended parents will always lack a marital relationship to the birth mother or genetic link to the resulting child.
Hypothetical case19
The deficiencies of existing Minnesota parentage law become clear when one applies the MPA to a surrogacy arrangement in a common situation with an uncommon twist. As noted above, there are many surrogacies initiated by heterosexual couples in which the intended mother can neither gestate the child nor provide the egg to create the embryo (as was the case in T.J.S., supra). In such cases, the husband typically provides the sperm and is thereby genetically linked to the child. The husband has a presumption of paternity to assert under the MPA based on his genetic link, but the wife does not. In order to establish parentage upon the birth, the typical procedure would be to establish the husband’s paternity based on his genetic presumption and then have him initiate (and the surrogate consent to) a step-parent adoption by his wife, as required by the New Jersey court in T.J.S., supra.
Assume the surrogate gets pregnant with twins and calls the intended parents with the good news immediately upon her positive pregnancy test. After celebrating that night, the wife wakes up the very next morning to find her husband—her genetic link to the child and her necessary path to establishing her own parentage—dead of a heart attack. If the surrogate then reconsiders her original intent because she is concerned about the wife’s ability to raise twins as a single mother/recent widow, she may assert her parental presumption to the twins based on having given birth to them.
The wife, on the other hand, has no parental presumption under the MPA to provide standing to initiate a proceeding for parental rights. Despite the intent of all the parties at the outset, the surviving wife could not even get in the courthouse door.20 Without intent as at least a factor in the establishment of parentage in cases of assisted reproduction, these kinds of unexpected and inequitable outcomes remain all too possible.
The role of intent in surrogacy
The proper role of intent in assisted reproduction, particularly surrogacy, is reflected in two California parentage determinations, Johnson v. Calvert21 and In re Marriage of Buzzanca.22
Johnson was a case in which a heterosexual married couple entered into a surrogacy arrangement with a willing surrogate. Because of conflicts between the couple and the surrogate during the pregnancy, the surrogate petitioned for parental rights to the child. Referring to the same presumptions set forth in the MPA, the court noted that the surrogate and the intended mother each held a statutory presumption—the surrogate by virtue of giving birth, and the intended mother by virtue of being the child’s genetic mother. Confronted with the equipoise of presumptions, the court determined that parentage under the California Parentage Act should be determined by a tie-breaker: the expressed intent of the parties.
We conclude that although the Act recognizes both genetic consanguinity and giving birth as means of establishing a mother and child relationship, when the two means do not coincide in one woman, she who intended to procreate the child—that is, she who intended to bring about the birth of a child that she intended to raise as her own—is the natural mother under California law.23
This reliance upon the intent of the parties to a surrogacy arrangement to determine parentage was further expanded in Buzzanca. In Buzzanca, a married couple used donor sperm and egg to create an embryo that was transferred into the genetically unrelated surrogate for gestation. The couple initiated divorce proceedings, and the intended father attempted to avoid both parentage and any child support obligation by asserting he could not be established as the child’s father because he had no genetic or marital presumption of paternity upon which such a determination could be based. As originally agreed, the surrogate did not assert any parental rights and did not want to be the child’s legal mother. The trial court initially determined that, under those circumstances, the child had no lawful parents. In reversing the trial court and finding that the intended mother and father were, indeed, the legal parents of the resulting child, the California Court of Appeals wrote:
Even though neither Luanne nor John are biologically related to Jaycee, they are still her lawful parents given their initiating role as the intended parents in her conception and birth. And, while the absence of a biological connection is what makes this case extraordinary, this court is hardly without statutory basis and legal precedent in so deciding. Indeed, in... our Supreme Court’s Johnson v. Calvert decision, the court looked to intent to parent as the ultimate basis of its decision. Fortunately, as the Johnson court also noted, intent to parent “’correlate[s] significantly’” with a child’s best interests... That is far more than can be said for a model of the law that renders a child a legal orphan.24
Together, these two cases establish an analysis for determining legal parentage of children born pursuant to surrogacy arrangements according to the original intent of the parties—and, as implicitly encompassed therein, the best interests of the child. Most attorneys practicing in the area of assisted reproduction and surrogacy concur that intent should be the cornerstone of establishing parentage in surrogacy and other forms of assisted reproduction.
In such a regime, a woman who provides an egg (whether hers or a donor’s) to create an embryo that is transferred to another woman as her surrogate would be established as the legal mother. Conversely, if a woman provides an egg as an egg donor only to create an embryo that is transferred to another woman for gestation with the intent that the woman gestating the child will become the legal parent, the woman gestating would be established as the legal mother. These similar, but disparate, cases involve the same medical procedure but produce opposite parentage results based on the respective parties’ intent. Unfortunately, intent has not been adopted as a factor under the MPA either by statute or case law. So the parties to a surrogacy agreement in Minnesota continue to face uncertainty regarding the ultimate parentage of a child born via surrogacy if a conflict arises among the parties.
Efforts to update Minnesota parentage law in cases of assisted reproduction
The Uniform Parentage Act of 2000 was proposed in the Minnesota Legislature in 2001. An extensive task force was convened to evaluate the updated version of the Act, which included provisions to reliably and predictably govern all assisted reproduction matters. After due consideration, the task force recommended against adopting the updated version. It was not re-introduced or passed.
Thereafter, every session of the Minnesota Legislature has included some effort to regulate assisted reproduction and create predictable outcomes. Amendments to the artificial insemination statute25 were proposed to include cases of egg donation, for the protection of recipient parents and egg donors. The amendments failed. Thus, egg donors retain an existing presumption that gives them standing to assert legal parentage based upon their genetic link to the child under the MPA should they choose do so. An amendment to Minn. Stat. Sec. 257.55 was proposed to include intent as one of the presumptions to create standing for an intended parent to assert a claim to parentage in cases of assisted reproduction in which they had not given birth and had no marital relationship to the birth mother or genetic link to the child (as in the hypothetical set forth above). It failed.
In 2008, a comprehensive statute to regulate and govern surrogacy was passed in bipartisan votes by both the Minnesota House and the Minnesota Senate. Then-Gov. Tim Pawlenty vetoed the bill. Thus, it remains the case that intended parents with no statutory presumption of maternity or paternity may lack standing to assert their claims to parentage. Some form of legislation to improve the application of Minnesota parentage law to cases involving assisted reproduction has been introduced in every session of the Legislature since 2002; not one has become law.
Various bills have been introduced during the 2019 session that would affect establishment of parentage with respect to certain forms of assisted reproduction. One bill affirms and regulates compensated surrogacy according to well-accepted national legislative trends;26 another attempts to prohibit compensated surrogacy and place other prohibitive restrictions on the process;27 a third attempts once again to amend and expand the artificial insemination statute.28 In addition, a study group has been established to evaluate the newest version of the UPA as amended in 2017 for possible introduction and passage during the next legislative session (or two). This version of the UPA would also establish predictable and equitable parentage outcomes in all cases of assisted reproduction. The fate of all these legislative efforts is unclear, at best.
National trends for legislating parentage in surrogacy
There are three clear indicators of the direction the Minnesota Legislature should take. The first is a striking trend in recent legislation in a mounting number of other states to govern establishment of parentage in surrogacy. The second is the UPA as amended in 2017.29 The third is the recently amended American Bar Association Model Act to Govern Assisted Reproductive Technology.30
In 1988, the New Jersey Supreme Court decided the case of In re Baby M.31 Baby M was the first contested traditional surrogacy case in the U.S., and it was a matter of national attention. Based on the co-existing presumptions of maternity arising from both giving birth and having a genetic relationship to the child, the traditional surrogate was awarded legal maternity.
Immediately following that landmark traditional surrogacy case, eight states moved to legislatively limit or criminalize surrogacy in some manner. This reactionary wave was followed by the affirmative California decisions in Johnson and Buzzanca, supra. In the 25 years following those decisions, 16 states have, by case law and/or legislation, expressly permitted and regulated compensated surrogacy, including three of the states that originally limited or prohibited surrogacy after Baby M. In addition, several other states have implicitly approved surrogacy by exempting surrogacy from the application of their respective adoption statutes prohibiting compensation in an adoption. No prohibitive legislation was passed in any state in that same 25-year period. New York has recently issued an extensive task force report that recommends legislation to permit and regulate compensated surrogacy, and there is a bill currently pending in that state that would overturn its criminalization of that process. Virtually all of these legislative enactments establish parentage in surrogacy and other assisted reproductive methods based upon the original intent of the parties. Clearly the national trend is in favor of expressly addressing and permitting surrogacy and other forms of assisted reproduction and creating reliable parentage outcomes for all the parties in those situations.
Both the 2017 UPA and the ABA Model Act have comprehensive provisions to regulate assisted reproductive technology. Both were formulated by esteemed and diverse bodies of attorneys representing all U.S. states. Each reflects a reasonable national consensus for governing and establishing parentage in assisted reproduction. They address the parentage of both sperm and egg donors, as well as the intended parents in surrogacy. Both the UPA and ABA Model Act permit and regulate parentage in surrogacy. They each affirm the propriety of reasonable compensation paid to women who act as surrogates.
The main difference between the two lies in their treatment of traditional surrogacy. The ABA Model Act provides for enforcement of traditional surrogacy arrangements in the same fashion as gestational surrogacy arrangements, allowing the original intent of the parties to determine the ultimate parentage of the child. The surrogate has no right to challenge or usurp the surrogacy process and keep the child in either scenario. Under the UPA, however, a traditional surrogate is given a period of days following the birth in which she can unilaterally undo the intended surrogacy arrangement and keep the child. The UPA only applies the intent test imported from Johnson and Buzzanca to gestational surrogacy. Nevertheless, there are still clear and consistent rules for the establishment of parentage in compensated surrogacy arrangements in both, and that would be a desirable step forward for Minnesota parentage law.
Conclusion
Medical advancements have separated the process of having children and forming families from the natural procreative process. Minnesota’s outdated parentage laws were passed before many of the current assisted reproductive technologies existed, and the laws should now be updated to contemplate these new ways to form families. Minnesota should be next on the extensive and growing list of states to permit and reliably establish parentage in all surrogacy arrangements and all other forms of assisted reproduction.
Notes
1 A.T. Gregoire Ph.D., Robert C. Mayer M.D., “The Impregnators”, 16 Fertility and Sterility, 130–4 (1965). https://www.sciencedirect.com/science/article/pii/S0015028216354760?via%3Dihub
2 Minnesota Statutes Chapter 257 (Minnesota Parentage Act) (1980).
3 Reproduction without sexual intercourse.
4 The formation of a human embryo outside the human body.
5 The process by which another woman attempts to carry and give birth to a child created through intrauterine insemination or in vitro fertilization using sperm and/or eggs provided by the intended legal parents of the resulting child.
6 Sue A. Meinke, Surrogate Motherhood: Ethical and Legal Issues, The Joseph and Rose Kennedy Institute of Ethics, Bioethics Research Library, Georgetown University, Revised Jan. 1988, at 2. https://repository.library.georgetown.edu/bitstream/handle/10822/556906/sn6.pdf
7 The surrogate is inseminated with the sperm of the intended legal father and is both the gestational and genetic contributor.
8 The surrogate receives and gestates an embryo created using either the intended legal mother’s egg or a separate egg donor’s egg so she is the gestational, but not the genetic, contributor.
9 Even in this “simplest” case, the surrogate will still have a competing presumption of maternity upon which to contest parentage based on her having given birth to the child.
10 Minn. Stat. Sec 257.57, Subd. 1. (1980).
11 Witso v. Overby, 627 N.W. 2d 63, 65-66 (2001). (Emphasis added.)
12 Minn. Stat. Sec. 257.63, Subd. 5(c).
13 In one other unpublished decision, the court of appeals determined that a gestational surrogacy arrangement was enforceable under Illinois law based on the parties’ express choice of law provision in their surrogacy agreement. This case did not apply the MPA to the surrogacy arrangement for its determination of parentage. In re Baby Boy A., 2007 Minn. App. Unpub. LEXIS 1189, 2007 WL 4304448, at 3-8 (Minn. App. 12/11/2007).
14 A.L.S. v. E.A.G., 2010 Minn. App. Unpub. LEXIS 1091, 2010 WL 4181449 (Minn. App. 10/26/2010).
15 Id., at 10, citing Minn. Stat. Sec. 257.52 (1980).
16 In re T.J.S., 54 A.3d. 263 (N.J. 2012).
17 In re T.J.S., 16 A3d 386, 388-389 (N.J. App. Div. 2011). (Citations omitted.)
18 Minn. Stat. Sec. 518.17 (2008); Durkin v. Hinich, 442 N.W.2d 148, 152 (Minn. 1989); A.L.S. v. E.A.G., 2010 Minn. App. Unpub. LEXIS 1091, 2010 WL 4181449, at 16 (Minn. App. 10/26/2010).
19 (Well, maybe it actually happened.)
20 Of course, the wife could present arguments based on equal protection and other grounds outside the MPA, but the New Jersey court in T.J.S., supra, rejected those arguments based on New Jersey’s similar parentage statutes. It is only speculative that the wife would succeed with such arguments against the express terms of the MPA.
21 Johnson v. Calvert, 851 P.2d 776 (Cal. 1993).
22 In re Marriage of Buzzanca, 61 Cal. App. 4th 1410 (Cal. App. 4th Dist. 1998).
23 Johnson v. Calvert, 851 P2d. 776, at 785 (Cal. 1993).
24 Buzzanca, supra, at 1428 (Cal. App. 4th Dist. 1998).
25 Minn. Stat. Sec. 257.56 (1980).
26 H.F. 1140, 90th Leg., S.F. 1533, 90th Leg. (Minn. 2017).
27 H.F. 1000, 91st Leg., S.F. 1152, 91st Leg. (Minn. 2019).
28 H.F. 724, 91st Leg., S.F. 755, 91st Leg. (Minn. 2019).
29 Uniform Parentage Act (2017).
30 American Bar Association Model Act Governing Assisted Reproductive Technology (Feb. 2017).
31 In re Baby M, 537 A.2d 1227 (N.J. 1988).
STEVEN H. SNYDER, Esq., is the founder and principal partner of Steven H. Snyder & Associates, LLC, in Maple Grove, Minnesota. Mr. Snyder is a member of the American Bar Association and previous chair of the Assisted Reproductive Technology Committee of the ABA Family Law Section. He is also past chair of the MSBA Family Law Section. Mr. Snyder is a frequent national and international speaker on assisted reproductive technology topics.