Family law is a complicated area of law, even when the subject is a nuclear family in which the two people involved are both biological parents of the children in the family. However, even more complications can arise when venturing into areas of law that are different from what most people in our society have come to think of as “the traditional family”. Specifically I am speaking of situations involving assisted reproduction, surrogacy, gestational agreements, and donors.
The biggest risk comes from situations in which “everyone is friends” and so it is thought that there is no need for a legal agreement and no need to use a doctor or clinic. Here are the most common:
- A woman desires to have a child and a male friend agrees to be the donor. They both agree orally in advance on all the details of what will happen when the baby arrives. Often, the man will agree not to be involved in any way and the woman will promise not to seek child support. They draft an informal agreement (which is later found not to be legally binding) or they decide not have a written agreement at all, because they “trust each other”
- A woman agrees to bear a child for a friend (or couple). She plans to give the baby to the person (or couple) after the birth and promises to “sign away” her rights.
- No matter what the situation, and how good and trustworthy the involved parties are, people change their minds. They do so for all kinds of reasons, and having a child brings out some of the deepest emotion that humans experience. (see this article from the Houston Chronicle, Sept 20, 2012, showing just such a situation, “Court may define what a mother is”).
- It isn’t just up to the adults who are involved. The child will have rights, the biological parents have rights, and unless a court agrees to terminate someone’s parental rights, it will not happen. The two people who are the biological parents (plus their mates and families) may well end up bound to each other for at least 18 years, like it or not! A judge can order child support, even if one parent doesn’t want to pay it and the other parent doesn’t want to receive it!