By Megan Monsour –
The Wild West
Kansas, like many other states, does not have any statutes governing third party reproduction, with the exception of a brief provision regarding sperm donation. Assisted reproductive technology (ART) is a relatively new and still developing area, both legally and medically. ART has been controversial since the first successful birth by a carrier, a little over 30 years ago. Its controversy and the lightning pace at which the technology has progressed, has made it difficult to legislate.
Unlike some states where gestational carriers are banned, with no statutory framework, gestational carriers in Kansas are legal and intended parents are free to work with their doctors and lawyers to determine the best plan for building a family. Although no law is better than bad law, the lack of legislation does leave the door open to potential costly and emotional litigation should things get off track and require court intervention.
You Say Potato
The word surrogacy has become the accepted term used when referring to third party reproduction in which a woman, not genetically related to the child she is carrying, becomes pregnant through the IVF process for the purpose of making someone else a parent(s). However, surrogacy (or surrogate when referring to the woman) does not accurately describe that set of facts, despite the common use of the word. A woman who carries a child she is not genetically related to is a gestational carrier. A surrogate, or a traditional surrogate, is a woman who becomes pregnant, for the purpose of making someone else a parent, typically through artificial insemination, but is genetically related to the child. Her egg is used, and so she is biologically and legally the mother of the child. Traditional surrogacy is very uncommon today. Conceiving using a gestational carrier is becoming more and more common.
Who’s on First
The number of people involved in third party reproduction may not be limited to the Intended Parents and Carrier. While the Intended Parents can, and commonly are, the biological parents of the child, having provided all the genetic material (egg and sperm), ART has many more possibilities. The embryo could be formed from donated genetic material as well. One of the intended parents may not be able to provide the needed genetic material. Donor egg and sperm can be used in part, where one of the intended parent’s genetic material is paired with donor material, making one of the intended parents a biological parent, either the mother or the father. Or, if donor material is needed for both the egg and sperm, the child may not be genetically related to either intended parent. Some intended parents choose to use all donor material.
As an attorney who helps families navigate the world of third party reproduction, ART leaves me in awe. The medical technology that allows a couple to become parents of a child created with their genetic material by way of a gestational carrier is remarkable. No less remarkable, is the woman who takes on the awesome responsibility of carrying and delivering a child so that someone else can become a parent.
This article was originally published on Wichita Mom on May, 16, 2017.