By Denise Seidelman, Esq.
Both adoption and collaborative reproduction (fertility options that involve third parties, such as gamete donors and gestational surrogates) provide the means to create or expand your family. While it is great to have a choice when it comes to family building, having choices can also make it difficult to come to a decision. This blg will compare and contrast some important considerations surrounding both family-building options in the hope it will guide you toward the path which is right for you.
THE LEGAL PROCESS:
The “legal” goal in both adoption and collaborative reproduction is to ensure that you will be the legally recognized parent of your child. However, that’s often where the similarities end.
Adoption has a long history in the United States. As a result, every state has a highly regulated statutory scheme and detailed body of case law governing the process. Adoption laws determine how the rights of the birth parents will be extinguished and what steps adoptive parents must take to become recognized as the legal parents. Because of this long history and statutory framework, the legal process in adoption is predictable and settled.
By contrast, in collaborative reproduction, medical advances have far outpaced the law. It is often the case that there are simply no laws on the books (no statute and no case law) which provide guidance on how Intended Parent(s) can become securely recognized as the legal parents of their child or how the potential legal rights of third party participants ( gamete donors and/or gestational carriers) can be effectively terminated. In many states the law is evolving as each new fact pattern is presented to the courts. The very definition of what it means to be a mother can differ dramatically from state to state with some states defining the legal mother as the woman who gives birth and other states defining the legal mother as the woman with the genetic connection to the child. The law relating to collaborative reproduction is evolving on a national scale. For this reason, Intended Parents are urged to obtain the guidance of legal counsel with particular expertise in the field of collaborative reproduction before undertaking this process.
ARE AGREEMENTS BINDING?
In an adoption, adoptive parents learn of the child after conception. Although many adoption plans are made before the child is born, the birth mother still has the right to change her mind after the birth. Simply put, there is no legal document which a birth mother can sign before the child is born which contractually compels her to follow through on her planned adoption.
Collaborative reproduction, on the other hand, relies in large part on agreements that are intended to bind the parties even before conception is achieved. Whether and to what extent agreements relating to gamete donation, embryo donation and gestational carrier agreements are enforceable is subject to wide divergence among the states. In some states such agreements effectively terminate the rights of the donors and/or surrogates, while in other states such agreements may not be legally unenforceable. In states where surrogacy agreements are not enforceable, the Intended Mother may have to adopt the child in order to create a legally recognized parent/child relationship – even where the Intended Mother is the genetic parent of the child!
Both adoption and collaborative reproduction can be expensive. The actual cost varies depending on a wide range of factors.
In an adoption, there are often costs associated with identifying a pregnant woman who chooses to place a child with you. Whether one hires an agency to assist in the search or undertakes the search on one’s own, this aspect alone can sometimes be costly. Once a “match” occurs, adoptive parents are responsible for the pregnant woman’s allowable expenses which can include: legal fees; counseling fees; uncovered pregnancy related medical expenses and living expenses. With few exceptions, all monies paid on behalf of the potential birth parent(s) are at risk until after the birth parents’ rights are terminated or their consent to the adoption becomes irrevocable.
While regulations governing permissible adoption expenses vary from state to state, these regulations have the effect of limiting the funds which are at risk in the process. In addition, the Federal Adoption Tax Credit, which currently exceeds $13,000, can provide tremendous financial relief to those adoptive parents who meet the income eligibility criteria (the credit is fully available to those families with an adjusted gross income of less than $185,000.00 and tapers off as income increases).
The costs associated with collaborative reproduction vary enormously depending on what procedures are required and the extent to which the medical procedures are covered by medical insurance. Because third party participants are making a choice to assist, rather than dealing with an unplanned pregnancy, they expect to be compensated for their time and the medical risks they assume. While there are guidelines which suggest appropriate payments to third party participants, few state laws regulate the amount of those payments. This lack of regulation results in there being a large variance in the costs incurred by the participants in this process. Currently, there is no Federal Tax Credit which offsets the expenses incurred in the collaborative reproduction process.
LEVEL OF CONTROL
Another major distinction between adoption and collaborative reproduction relates to the degree of control one can exert over the pregnancy. In adoption, the pregnancy is almost always unplanned and the pregnant woman may not realize she is pregnant until her pregnancy is advanced. As a result, the pregnant woman may have engaged in high risk behaviors during her pregnancy such as smoking, drinking and the use of drugs. In some cases the pregnant woman may have received very limited or even no pre-natal care. Depending on her background and circumstances, the pregnant woman may even continue risky behaviors after learning of the pregnancy. While adoptive parents can always decide not to adopt the child if they are uncomfortable with the child’s pre-natal history, or if the child suffers from a medical problem or disability, adoptive parents have little or no ability to control the conduct of the woman during her pregnancy.
By contrast, every aspect of the pregnancy achieved through collaborative reproduction has been medically planned and controlled. Third party participants usually sign detailed contracts agreeing to undergo medical screening and monitoring which contractually compels them to take all measures necessary to protect the health of the child and the pregnancy. In turn, and contrasted with adoption, Intended Parents are contractually compelled to assume full legal and parental responsibility for the child even if the child is born with a serious medical condition or disability.
This article touched on only a few of the important considerations which may lead you to choose one form of family-building over another. There are many other factors to consider before undertaking either process including issues of disclosure to the child and others about the means by which your child entered your family, future contact with birth parents and third party participants; and the child’s right to know his or his genetic information. There is a lot of controversy about the extent to which adoption and collaborative reproduction are the same or different in these regards.
While the distinctions between state laws are critical to understanding the risks you confront as you undertake either family building method, I have attempted to put state differences aside in an effort to highlight some of the major similarities and differences between these two methods.