A recent article in the NY Post shows the growing legal complications of assisted reproductive technologies when it involves third party parenting. The focus is on same sex couples and specifically when the relationships break up. Ironically the gender bias for custody is complicated if not ironically gone. The child traditionally going to the mother? Not so fast! Which one? Which dad? The legal situation of custody can get more complicated when 4 people are claiming parenting rights.
While the focus on same sex couple is warranted, the article is correct in saying the legal outcomes will influence heterosexual couples as well. The article identifies three types of parents: biological parents, legal parents, or parents through the “assumption of legitimacy,” or in other words the person who is doing the parenting. Multiple categories are always the case for same sex couples, but are also the case with heterosexual couples any time third party reproduction is involved.
Judaism also has a similar spread of parenting definitions although they have different implications. In recent Jewish legal rulings, terms such as “intended parents” before the birth and “social parents” after the fact have surfaced to try to capture the on-the-ground “legitimacy” of parents who assume that role by living it. It is complicated enough, and sometimes sensitive enough, to be reminded of the definitions when one is not a biological parent whether a Jewish or a secular issue. Things are certain to get tricky when the legal system has to make the judgement of “legitimacy” without explicit predetermined definitions and multiple people are claiming the legitimacy.
One item missing from the article is the ability for same sex couples to adopt a non-biological child they are parenting. The article implies that this would solve a lot of problems. However, some couples do not adopt because it is/was legally difficult or impossible. The difficulty is usually not the case for heterosexual couples, although the laws are unclear and vary between states for third party reproduction.
Hasidah often gets asked about criteria for choosing a fertility clinic. Considering the clinic’s legal coverage is an answer that surprises people when we say it should be a consideration. Often the intentions seem obvious and the legality seems unnecessary to people when they are going through the process of insemination or IVF with a donor. The “intended parents” for sure have true intentions and complications down the road can seem to distant or hard to believe in the midst of a dealing with infertility and focusing so much on just trying to have a child.
True intentions may be the case at the start, but life happens and people change their minds.
This article points out an important lesson: if a third party is involved in the reproduction process, make sure the legal aspects are considered and addressed. Before the fact.