In-Vitro Fertilization Raises Custody Rights and Family Law Questions

Oct 12, 2012

By Barbara Atkinson, staff writer – October 12, 2012

The first successful use of in vitro fertilization (IVF) created a new world of possibilities, a world the law is still struggling to come to terms with almost 35 years later.

In 1978, Louise Brown made history as the world’s first baby to be conceived by IVF in England. Her successful conception and birth was a monumental event for science and an extraordinarily hopeful occasion for parents struggling with infertility. Critics of the time decried IVF as a moral quagmire, destroying the special structure of the family, ending the nuclear family, and promoting ethically dubious medicine. [1] What critics didn’t seem to anticipate was the extent to which society would be unable to determine definitively how IVF re-defined the concept of “parent.”

Currently, some 350 clinics in the U.S. perform more than 40,000 IVF procedures each year. [2] More than thirty-four years later, and an estimated 50,000 IVF babies and counting since Louise Brown, the law seems still to be grappling with how definitely to determine what it means to be the parent of a child in light of this no-longer-new technology. What is the current legal definition of “parent?” According to, a legal parent is someone “who [has] the right to live with a child … and to make decisions about the child’s health, education, and well-being.” But how to determine who gets that legal status seems to change with every case before the courts. And there are a lot of cases going before the courts. [3]

In one such case, the U.S. Supreme Court heard arguments in March to test whether children conceived via IVF after the death of one of the genetic parents are eligible for Social Security survivors’ benefits. The case began in 2011, when cancer patient Robert Capato deposited sperm with a fertility clinic prior to chemotherapy treatment. After his death, his wife, Karen Capato, carried out their plan to have children and conceived twins, using Robert’s sperm. She gave birth in 2003 and filed for survivors benefits for the twins in Florida, where she and the children resided. The Social Security Administration contended that the children could not inherit under Florida state law, that the children were ineligible for the survivors’ benefits, and denied her claim. Karen Capato challenged the denial of benefits, arguing that the word “child” as the biological offspring of a married couple was clearly stated in the 1939 Social Security Act, and that the section of the law which links benefits to state intestacy statutes only applied when biological parentage was in dispute. Though the federal appeals court sided with her, the U.S. Supreme Court unanimously ruled against her. [4] There are more than 100 additional similar cases currently pending before the Social Security Administration, and there may soon be countless more before the courts: military personnel are reportedly freezing their sperm before deploying to the front lines. [5]

In California, Governor Jerry Brown just vetoed legislation that would have enabled a child or children to have more than two legal parents. Senate Bill 1476, introduced by State Senator Mark Leno, proposed the recognition of more than two legal parents by a judge in cases where a third parent, such as a biological or previous custodial parent, was “in the best interests of the child.” The bill was spurred by a case where a same-sex couple were unable to parent their child; the child’s biological father sought custody. The juvenile court granted the man custody, ruling that he was, in effect, the third parent. The child had a biological mother, a custodial mother legally married to the biological mother, plus the biological father. He later lost on appeal. The child was slated to be sent to foster care, but was later placed with other relatives. [6]

In his veto, Governor Brown said he was sympathetic to Leno’s intent in crafting the bill, but that the bill had ambiguities and needed to be redrafted. Senator Leno had stated that he hoped to get California’s law caught up to modern families, which now may include same-sex marriages and parenting, assisted reproduction and surrogate births. California currently extends the definition of parent to someone who is a biological (either mother or father) parent, adoptive parent, legal foster parent, legal guardian, step-parent, or grandparent who is a primary and legal guardian. While opponents stated that the bill would erode “traditional parental roles,” Leno’s proposed legislation for California, he stated, would not have changed the current legal definition of a parent, but would simply change the number of parents a court could recognize, as needed. [7]

Some other states, including Pennsylvania and Maine, have similar laws in place for custody cases, allowing judges to recognize more than two parents. [8]

While the law would potentially save the courts time and money and help relieve pressure on an overburdened foster system, opponents of Senate Bill 1476 argue that the bill did not consider the implications for the Social Security system, including survivors’ benefits, taxes, inheritance and probate and child support, among other issues. [9]

Meanwhile, a landmark fight for parental rights in Texas currently taking place involves a surrogate mother of twins not genetically related to her who is claiming custody. Cindy Close gave birth in July to twins, a boy and a girl, via donor eggs. Close stated that she and the man who fathered them, Marvin McMurrey, planed to raise the twins together in a platonic relationship. Only after giving birth, Close states, did she discover that McMurrey was gay and actually planned to raise the twins with his partner. McMurrey, meanwhile, states that Close is not the mother of the twins as she has no biological connection to them, and wants her stripped of any rights to see them. [10] Close has stated that there was no surrogate agreement and she wishes to share custody, as was their original plan. Close’s attorney argues that “Because she gave birth, she is therefore the mother of her two children.” [11] Before custody can be determined, the court must decide whether Close is legally a “mother” or not. [12]

In Florida, Supreme Court justices heard recent arguments about parental rights. Two women who were partners decided to have a child. One woman provided the egg which was fertilized and placed in the other woman, who gave birth to a child. The relationship later ended, and the woman who gave birth blocked her former partner, the egg donor, from parental rights to the child. [13]

The Brevard Country trial court stated that, as state law requires donors to relinquish parental rights, custody was granted to the mother who gave birth to the child. An appellate court later ruled that both women should have parental rights, as the biological mother was not “just” a donor as contemplated by the law. The case is now before the Florida Supreme Court, which as of the time of this writing, is considering returning the case to the trial court. The argument may hinge on whether biological parental rights were terminated by a signature on the donor consent form at the fertility clinic. [14]

Meanwhile, in New York, biology was ruled irrelevant in Family Court this month when Manhattan Judge Gloria Sosa-Lintner awarded full custody of a child to her adoptive mother, instead of her biological mother. Judge Sosa-Lintner said, in part, that “Although … [Brook] Altman is the biological parent, this does not give her an automatic priority over the adoptive parent. This is analogous to a father getting custody of his own child, where only the best interests of the child are paramount.” [15]

While many gay rights activists applaud the court viewing each same-sex parent as equally “deserving” of custody, opponents of the decision point out that in the case of a biological custody battle between, as the judge’s example cited, a man and woman, full custody is usually given only in cases where the other biological parent (as in Sosa-Lintner’s example), is deemed unfit for custody. Was this biological parent, Brook Altman, deemed unfit to share custody? [16]

What has been stated by Judge Sosa-Lintner in her ruling was that Altman’s parenting was more informal, while Scollar acted as the primary parent. Biology was not as important as relationship, as interpreted by the court. [17]

Advances in reproductive technology have sundered the age-old connection between the biological aspects of parenthood and the social relationships that define family. How the law will reflect and shape the impacts of this fundamental change is emerging as we watch, case by case.