Family Law

Guess This Week’s Craziest State In Assisted Reproductive Technology Law: Mississippi Or Arizona?

One of these states' new laws has a number of potential constitutional problems.

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Did you guess Mississippi? Wrong. Your assumptions about the Magnolia State notwithstanding, last week, the Mississippi Supreme Court issued a strong, well-reasoned opinion that reversed a lower court decision that would have created trouble for hopeful parents in Mississippi. The lower court had ruled that an anonymous sperm donor was in fact the legal parent of a child, even though that would have meant displacing one of the women (of a same-sex female couple) who had raised him. Yay, Mississippi! A victory for both families and LGBT individuals.

On the other hand, if you picked Arizona in response to the headline, you win. It’s the Grand Canyon State that’s gone in a perplexing direction, by passing legislation that requires a judge to give all of the leftover cryopreserved embryos of a divorcing couple to the spouse that “is most likely to bring them to life.” I wrote about the legislation when it was still in draft form. And oh boy, does it open the door for some awkward and troublesome outcomes. Let’s talk about the specifics of each state’s developments.

Mississippi Gets Donors Right.

Let’s start with the good legal news. I previously wrote about the case of Christina Strickland and Kimberly Strickland Day. The Mississippi same-sex couple traveled to Massachusetts in 2009 to legally marry. After marrying, they decided to grow their family with the help of assisted reproductive technology, and an anonymous sperm donor. Day carried the baby and gave birth to a child.

Things later turned south for the Southern couple. When the couple ultimately split and filed for divorce, Day argued that Strickland was not really a parent to their son because the sperm donor’s rights had never been terminated, and because Strickland had never formally adopted the child. The Rankin County Chancery Court agreed and determined that the anonymous donor — whoever and wherever he may be — was the true parent of the child. Obviously, that was concerning news for all the thousands of sperm and egg donors throughout the country, as well as all Mississippi couples and singles who had conceived with the help of a donor.

Last week, the Mississippi Supreme Court ruled that the Chancery Court reached the wrong legal result, and that an anonymous sperm donor is not, in fact, the legal parent of a resulting child. So that guy, wherever he is now, can I guess breathe a huge sigh of relief. The court pointed out that under the reasoning of the lower court opinion, if the couple had been a heterosexual couple, the father would have to go through a court process to terminate the parental rights of the sperm donor and adopt his child. Of course, that would likely undermine the stability of hundreds, if not thousands, of Mississippi families. So the state Supreme Court concluded that Strickland was indeed the parent of her son.

Way to go Mississippi Supreme Court. We know your state takes a lot of flak from the rest of the country, but here’s to you for protecting parents and donors alike.

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Legislature Decides Reproductive Fate of Arizona Divorcing Couples.

On the other hand, the news coming out of Arizona is less comforting. Last week, Governor Doug Ducey signed into law Senate Bill 1393, which is designed to address what happens to cryopreserved embryos when a couple divorces.  I wrote about the bill when proposed. The new law states that if a couple divorcing in Arizona have cryopreserved embryos, then the judge must award the embryos to the “spouse who intends to allow the in vitro human embryos to develop to birth.” That’s already a little strange, and not a common practice for courts.  But it gets stranger.  If both spouses claim to want to bring children into the world using the embryos, the judge should resolve any dispute in a manner that provides “the best chance for the in vitro human embryos to develop to birth.” Wow. It’s going to be interesting to see how that analysis plays out.

I understand the motivation for having a legislative answer to the frequent questions posed by divorcing couples with frozen embryos. But this just isn’t the right solution. Indeed, the law provides that even if the couple entered into an agreement as to how the embryos should be handled after a divorce, the court must ignore their agreement, and still go with the “best chance to develop to birth” analysis. But that would mean that it’s literally impossible for a couple to go into IVF together with a binding agreement over what would happen if they later divorce.

Technically, the law doesn’t even require that the embryos be physically within the state of Arizona. So everyone in the country needs to be concerned. If your spouse wants to have children with your frozen embryos against your will, they can now tee up that issue by moving to Arizona and filing for divorce. To prevail, you’d need to assert that you, also, now want to use the embryos, and then prove that you have a better chance of developing those embryos to birth. At that point, you’d have a chance of winning the issue. But of course, you might be subject to your ex’s subsequent legal arguments if you don’t follow through on trying to have those kids. Yikes!

To top it off, Arizona’s new law also provides that the non-consenting spouse must provide their health and genetic history, as well as the health and genetic history of his or her family. Talk about invasive. The small bright side is that at least the non-consenting spouse will not be considered a legal parent to the children. That doesn’t change the fact that they will have become a forced donor to an actual baby though.

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I’m no Supreme Court justice, but I am pretty sure this law has a number of potential constitutional problems. The most prominent problem is the potential violation of the right to reproductive freedom, or to not have kids that you don’t want. Hopefully, this law does not hang around for long.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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