The use of assisted reproduction can create children for a family and bring much joy to an aspiring parent. This is the intended happy outcome. Unfortunately, medical advancements are still far outpacing our legal system, and this can lead to unhappy outcomes for those who turn to assisted reproduction to make their dreams of a family come true.
The Monroe, Michigan Case
This case arose from the union of two Lambertville, Michigan women who were co-parenting two children conceived through in vitro fertilization. The couple had entered a civil union and decided to raise a family. Hopps underwent embryo transfer using donor sperm with her own egg to conceive their daughter and both donor sperm and donor egg to conceive their son. Hopps then gave birth to both children.
The lesbian couple began co-parenting their children in Michigan prior to the landmark U.S. Supreme Court decision that legalized same sex marriage all across the union. While they were together for more than five years, Jennifer Zunk and Carin Hopps and were both raising the children as their joint mothers.
For co-parenting and benefit purposes, Zunk, the non-biological mother, was awarded limited guardianship of the kids in early 2011 during the couple's ongoing civil union. Michigan law did not allow Zunk to adopt the children. Unfortunately, the couple decided to split in October 2014. Thus arose a legal quagmire and dispute that continues to this day. Hopps has filed to terminate her former partner's guardianship over their two children, while Zunk has countered, seeking custody, parenting time and child support.
Assisted Reproductive Technology (ART) and the Law
Although the law in numerous other states that have adopted the Uniform Parentage Act might allow both women to claim parentage by virtue of co-parenting the children, Michigan has not adopted that Act and only allows a biological parent or an adoptive parent to claim parentage of a child.
It is unclear whether biological means connected by genetics or birth, but the law has been previously construed to mean genetically-related. The law on parentage upon using assisted reproductive technology is murky not only in Michigan, but in numerous other states and in numerous other ways across the U.S. The Hopps-Zunk case highlights the need for cohesive laws and standardization in this area.
As to the daughter who is Hopps' genetic child, she is certainly a parent under Michigan law. Zunk will not attain parental status or rights unless the court expands Michigan law to include parenting by intent or "holding out" a child as her own while living with the child. It is unclear whether the court has the authority or inclination to do so, but courts in other states, such as California, have done so in similar cases.
Most distressing this case is the status of the younger son, who may have no "biological" ties to either woman since a donor egg and donor sperm were used in his conception. Now that his parentage is at issue, the law doesn't necessarily recognize either woman as his parent.
If neither woman is his legal parent under the law, the child could be placed in the care of the state. Such an outcome would seem absurd, but it is technically possible! This situation cries for clarity as there should never be a situation where a child who is loved and wanted by two parents should be declared a child of neither and placed as a ward of the state.
While this case has drawn the attention of those inside and outside of the ART community, it is not an anomaly. There are many couples throughout Michigan and other states in the U.S. who are struggling with these and other uncertain parentage outcomes, as well.
If you are considering starting a family with ART, an experienced assisted reproduction law attorney can answer your questions and offer guidance in navigating this complex legal issue and preventing unintended legal consequences.