On behalf of Ronald H. Kauffman, P.A. posted in Assisted Reproductive Technology on Friday, January 17, 2014.

There has been a big increase in divorce (ART). ART involves removing eggs from ovaries, combining them with sperm in a lab, and returning them to the woman or donating them to another. ART now accounts for 3 of every 100 children born in the U.S. ART offers opportunities for parenthood, but is also a ripe area for fraud.

The majority of ART usage involves couples undergoing in vitro fertilization – this is called 1st Party assisted reproduction. A growing number of procedures though use third-party collaborators who act as sperm donors, egg donors, and gestational carriers.

Most 3rd Party ART procedures are done without complication or incident. However, a recent article from the American Medical Association confirms what we already know, that we must be aware of and plan for potential misconduct.

Donor Misconduct

Donors may go through extensive screening, but, they may not be truthful when filling out their profile. Two large areas to be aware of are:

(1) Donor’s intention to claim parental rights over resulting child.

Parents intending to solicit donors shouldn’t presume donors will waive their parental rights. There have been a few cases where donors change their minds. Florida is a leading state in the enforceability of gestational surrogacy agreements.

(2) Donor health histories.

What happens when a donor reveals to a doctor a previously undisclosed health problem, such as a family history of cancer, depression, or prior meth addiction? Lies in a profile about health-related matters threaten the well-being of a potential child.

Surrogate Parenting Misconduct

Surrogate parenting allows a married infertile couple to contract with a woman to gestate a child, and then relinquish it after birth. We memorialize this in detailed gestational surrogacy agreements. Two big areas of concern include:

(1) The intended parents hide the fact that they are getting divorced when the agreement calls for the child being born into an intact marriage.

(2) A surrogate fails to comply with the contractual ban on coffee, chocolate, or alcohol use on a regular basis.

Infertile parents have an unprecedented opportunity to enjoy the rewards of parenting. Florida has set itself apart as a haven for ART, as our laws make the process less prone to legal problems. Some states and countries ban these practices altogether.

Florida is very advanced in this area of law, and is one of the few states that permits intended parents to establish the parental status to a child born through assisted reproduction without a paternity/adoption process.

However, Florida statutes make detailed provisions that must be followed for a contract for it to be enforceable. If you’re thinking of slapping together a “do it yourselfer” contract, think again, you could face legal risks

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