It is no surprise that the family dynamic around the globe has been changing as societal concepts of the ‘family’ continue to evolve. To help people stay atop the most important changes, Attorney Jacqueline Harounian of Wisselman, Harounian & Associates on Long Island co-authored a recent article — New Frontiers in Family Law - Changing Relationships: Custody, Adoption, Surrogacy, Fertility and Reproductive Technology —with Attorney Faith Getz Rousso. Both women are Board Members of the Nassau County Women’s Bar Association and are Chairs in the Matrimonial Adoption Committees.
Updated Surrogacy Contracts
As Attorney Harounian discusses in the article, one of the most noticeable changes over the past two decades has been an increase in pregnancies accomplished through a variety of fertility treatments, with in vitro fertilization (IVF) being among the most popular. The increase in IVFs is associated with the rise in use by same-sex spouses, single parents, older couples, and has resulted in a need for surrogacy contracts, also in higher demand than ever before.
Surrogacy contracts need to consider a variety of factors that can impact their legality, including whether or not the surrogacy is traditional or gestational. There is also the important question of whether the birth mother intends or expects to keep any sort of parental rights over the child once they are born. Thus raising questions whether parenthood to be defined in the law based on pregnancy and delivery, DNA, parental responsibilities when the child is born, or a mix of these factors.
Spouses in same-sex marriages can face additional potential complications because the parental rules established through a surrogacy contract could be questioned if they divorce or legally separate later. There is the risk that some courts will not see either parent as a ‘true’ parent because they used a surrogate mother and/or a sperm donor to birth their child. In such a case, would the donor and surrogate have more rights than the parents who have been raising the child? All of these questions can be addressed, at least in part, with a properly drafted surrogacy contract, as well as with marriage or domestic partnership contracts.
Using Fertility Agreements Correctly
Some of the “new age” of family law is also centered around the expanded use of fertility agreements. Infertile couples should create a clear and concise fertility agreement with the assistance of a family lawyer before even beginning the process of creating embryos. Questions about who retains rights over the embryos if the fertility process is canceled before it completes need to be addressed as well. Doing so in advance can help avert a fiercely fought issue in a contested divorce. Some of the most prolonged and expensive contested divorces in recent history have involved embryo rights, but legally sound fertility agreements might have been able to prevent these from occurring.
Of course, there remains the issue that fertility agreement laws are hardly set-in-stone. In the coming years or decades, parents and legal practitioners alike can expect to see changes to the laws at both state and federal levels.
Want to know more about Attorney Jacqueline Harounian or the work we do here at Wisselman, Harounian & Associates? You can contact our Long Island law office by dialing (516) 406-8500.