1. Legal Issues: New Reproductive Techniques November 29, 2001

2. Problem 12-5 First Step: Classify Type of Agrmt. Second Step:Identify Parties Genetic Mother/Surrogate:Mary Genetic Father:Jack Intended Adoptive Mother:Jill (Jack’s wife) Surrogacy (AI)

3. I. SURROGATE WANTS TO BE RELEASED FROM K A)Will court enforce agreement? Ban & Criminalize/Declare K void-Permit but Civil PenaltiesNo enforcementRegulate (Minority)Through courts(Growing # - (Majorityrange of of statutes)regulations) MD – Among approx. 50% of states w/out surrogacy legislation State Regulation of Surrogacy (About Half the States Have Some Regulation)

4. Statutory Grounds for Refusal to Enforce? 1.Pre-Birth Consent Invalid / No bases for TPR 2.Fee May Violate Anti-Baby Selling Statute in Most Adoption Laws Public Policy Grounds for Refusal to Enforce? 1.Best Interests of Child Should Govern Child Placement Decision 2.Exploitation of Women, Particularly Low Income 3.Policies underlying anti-baby selling statutes (adoption & criminal law

5. Alternative Type of (More Common) Surrogacy Agmt: Gestational Surrogacy Genetic Mother: Jill (or Donor Egg) Genetic Father: Jack Surrogate: Mary Implications for Statutory or Public Policy Objections to Surrogacy?

6. B)If Court Does Not Enforce Surrogacy Agreement, Classify Dispute Between Mary and Jack? 1) Status of Husband: a) Legal father under most paternity statutes (marital presumption) but DNA testing could rebut presumption in most states. C) How does presence of Mary’s husband change things? Parent v. Parent – Contested Custody Case b) Legal father under most AID statues; c) Most Likely: Stepfather. As such, he may improve Mary’s custody claim under best interests analysis if K not enforced

7. II. GENETIC FATHER WANTS TO BE RELEASED FROM K C)Child Born With Downs Syndrome 1)Jack and Mary could consent to adoption or 2)Mary can assume custody and file complaint to establish paternity and child support against Jack D) Prenatal Testing Reveals Downs Syndrome 1)Contractual Provisions Requiring Abortion: not likely to be enforced 2)Jack’s paternity can be established and his obligations enforced

8. E)Intended Adoptive Parent Gets Pregnant 1)Contractual Provisions Requiring Abortion: not likely to be enforced 2)Jack’s paternity can be established and his obligations enforced F) & G) Unanticipated Expenses 1)Additional payments demanded by Mary legally unenforceable 2)Third party insurer liability unclear

9. PRIVATE ORDERING: AGREEMENTS

10. Prenuptial Agreements Definition: Agreement to dispose of property in contemplation of death or divorce Enforceable? Historically: No – against public policy Modern: Most states enforce but heightened scrutiny: 1) Fair in procurement full disclosure voluntary (counsel, time to review, knowledge of rights) 2) Fair in result (at time of agrmt)/ unconscionability standard (at time of death or divorce)

11. Separation Agreements: Enforcement and Modification A)Provisions Regarding Property Negotiation/Enforcement - “arm’s length” parties No heightened scrutiny No full disclosure unless asked in discovery Result must be fair?No-unconscionability standard B)Provisions Regarding Alimony Negotiation/Enforcement: Parties can waive or agree to any amount if not unconscionable Modification: If K silent, cts can modify amt during per. of pymt. But parties can limit ct’s ability to modify if clearly stated in K

12. MD: “no modification” clause in K enforceable C)Provisions Regarding Children 1) Child Custody & Visitation Negotiation/Enforcement: Yes, but court cannot “rubber stamp” Modification -Parties cannot limit ct’s ability to modify 2) Child Support Negotiation/Enforcement:Parties not free to waive or set any amt – must comply with child support guidelines MD – Incorporate vs. Merge Incorporated but not merged – enforceable as contract & order Merge – only enforceable as court order