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Assisted Reproductive Technology - Family Building

Jeff Sheehan admitted into the American Academy of Assisted Reproductive Technology Law Attorneys (AAARTA)

The American Academy of Assisted Reproductive Technology Law Attorneys (AAARTA) accepted Jeffrey T. Sheehan as a Fellow in their organization effective 2013. AAARTA is a credentialed, professional organization dedicated to the advancement of best legal practices in the area of assisted reproduction and to the protection of the interests of all parties, including the children, involved in assisted reproductive technology matters. Jeff Sheehan is Idaho's only AAARTA Fellow.

Idaho ART Law Update

As many of you know, there has been significant upheaval in Idaho on ART law issues. There are no statutes nor are there any reported cases that address any ART issue in Idaho. When drafting gestational carrier agreements, only general contract principles apply. Seemingly, the Idaho trial courts have expressed willingness to apply general contract interpretation to disputes when they arise between the intended parents and the gestational carrier. This has not changed over the past several years.

In terms of the parentage process, however, there have been significant changes. Prior to February of 2014, the process included the following: (i) The parties entered into a gestational carrier agreement; (ii) At the time of the child's birth, the intended father would sign an Acknowledgment of Paternity Affidavit at the hospital—thus the intended father would be listed on the child's birth certificate in the first instance; however, the gestational carrier would remain on the child's birth certificate as being the child's "mother" until her rights were terminated through a court process.

The Idaho Bureau of Vital Records and Health Statistics (hereinafter "Vital Stats" - through the Attorney General's office) has claimed that Idaho law defines "mother" as the person who physically labored and delivered the child. Frankly, their interpretation of the law is entirely unsupportable. The state argued that though there is no definition of "mother," language from the Vital Statistics Code could be borrowed which provides a definition of "live birth." While arguing this issue with the state in 2012, the response from the Attorney General's office was as follows:

I'm sure you can appreciate that there are no statutory definitions for "gestational carrier," "intended mother," or "intended father." Also while "mother" is not specifically defined, the term is defined by inference and the definition of "live birth" which refers to the "complete expulsion or extraction from its mother of a product of human conception." Idaho Code § 39-241(b). I think until the Legislature provides otherwise, we are bound by that construction.

Vital Stats' interpretation continued until February of 2014. Prior to February of 2014, the only way to have the intended mother's name placed on the child's birth certificate was by way of a step-parent adoption proceeding; however, this was complicated by the jurisdictional requirement that only residents can adopt in the state of Idaho. The result of which was to require intended parents to leave Idaho with only the intended father's name being listed on the child's birth certificate – the couple would need to return to their home state to conduct an step parent adoption. Once the certification of adoption document was provided to Vital Stats, they would amend the birth certificate by processing an adoption, thereby placing the intended mother's name on her child's birth certificate.

In 2014, heterosexual intended parents filed suit against the State of Idaho, and on February 6, 2014, an order was entered granting the intended parents application for writ of mandate. Vital Stats was then required to legally amend the child's birth certificate once a legal determination of parentage was determined under Idaho law. Essentially, the Idaho Office of the Attorney General was not in opposition to amending the birth certificate, but simply wanted a judicial authority to tell them what to do. No appeal was taken.

The parentage process utilized was essentially a declaratory judgment action which allowed the Idaho Court to enter a parentage judgment declaring the intended mother to be the mother of the child. From February of 2014 until July of 2015, we had a very smooth running system where the declaratory judgment action could be filed immediately after the child's birth, and within two or three weeks the intended parents would have both the judgment and amended birth certificate reflecting the true, legal parentage of the child (Note: there has never been any pre-birth process in Idaho). Our efficient new process came to an abrupt end in July of 2015. The Idaho Supreme Court issued an administrative ruling requiring that all ARTs cases in the State of Idaho be assigned to Senior District Judge Darla Williamson. The order provides, in part, as follows:

It hereby is ordered that Senior District Judge Darla Williamson be, and hereby is, assigned to any and all cases involving gestational carrier agreements or the use of a surrogate parent, including but not limited to actions for judgments of parentage, termination of parental rights of a gestational mother, and motion / petitions for the issuance of birth certificates, and appointed to preside in any cases as may be designated by the administrative district judge in any of the seven judicial districts to conduct all proceedings for their final disposition beginning July 14, 2015 and continuing until otherwise ordered by this Court.

It is unclear as to what prompted the issuance of this administrative order, but it may include the fact that most ART cases were being filed in a particular county with Judges who had favorable views on ART law issues. The administrative order was a shock to most of the lawyers in Idaho who practice in the ARTs arena. Simultaneous with this administrative order the Idaho Department of Health and Welfare began again the process of drafting legislation for Idaho's first ART statute. The legislative process is discussed further below.

Following the issuance of the administrative order, three (3) pending ART cases ready for issuance of parentage orders were then assigned to Judge Williamson. Given that Judge Williamson had never been involved in an ART case, a tactical decision was made to be diplomatic and gently work with Judge Williamson's preliminary attitudes and legal analysis. If a parentage judgment could be entered which would accomplish the goal of birth certificate amendment without a fight, why rock the boat? Two of the cases involved single intended fathers who were biologically related to their child. The third case involved a married, heterosexual couple, both of whom were biological parents.

Judge Williamson wrestled with her understanding of the law in Idaho and essentially took an "adoption-like" approach to these ART cases. She has concluded that the best practice is to terminate the gestational carrier's presumed parental rights (judicial consent to terminate process) and enter a judgment directing Vital Stats to remove the Gestational Carrier from the birth certificate. If it can be established through testimony and/or affidavits from physicians that the intended mother and/or intended father are biologically connected to the child, then she will issue a parentage judgment reflecting those "facts of birth." Once such a parentage judgment is entered, Vital Stats will amend the child's birth certificate effectively removing the gestational carrier's information and replacing it with the intended parents' information. Judge Williamson has indicated, however, that she is unwilling to declare parentage for an intended parent who is not biologically related to the child. For those non-biological intended parents, they would need to return to their home states or countries to proceed with a step parent or other adoption process. The bottom line is that for non-biological intended parents, Idaho will not issue a parentage judgment declaring the intended parents' rights.

For AARTA members who may be working with gestational carriers in Idaho prior to contact execution, I would ensure that both parents are biological before proceeding. While outof-state adoption for non-biological intended parents is still available and will ultimately permit amendment of the birth certificate to include the non-biological intended parent, that approach is more costly and cumbersome.

Colleagues of mine here in Boise have collaborated to facilitate a test case to see if the declaratory judgment type approach would work with Judge Williamson. In that case Judge Williamson refused to permit a parentage judgment to be issued for non-biological parents because the intended mother used an egg donor and the intended father was the only parent biologically related to the child. Alternative theories (declaratory judgment, equal protection, etc.) were presented arguing that Idaho law currently has authority to declare the rights of nonbiological parents as parents of the child. On November 9, 2015, Judge Williamson entered a decision rejecting those theories and refused to grant a parentage judgment for the non-biological parent. I have a redacted copy of that decision if anyone cares to read it. Four arguments were advanced, all of them were rejected. The attorneys involved in the case are considering whether they wish to pursue appeal or not to the Idaho Supreme Court.

On the legislative front, there have been several meeting with "stake holders" at the Vital Stats office. Candidly, it is hard to ascertain where they stand on this issue, but generally my sense is that they want clear direction from the legislature rather than have ambiguous directives from the Court. As you can imagine, there are disparate views, but there are seemingly some legislators that are in favor of ART legislation. A draft bill has been circulated and a one representative in particular is has taken the lead.

The direction being taken by the stake holders, Office of the Attorney General, Department of Health & Welfare and, to a certain extent, attorneys participating on behalf of the Idaho Supreme Court is to have a pre-birth process where the gestational carrier agreement can be validated in Court prior to birth. This would allow parentage to be established up front making the process easier for the hospital, Vital Stats, intended parents, and the gestational carrier. Drafting of legislation has been primarily based on the Uniform Parentage Act and Utah ART statutes at the urging of certain legislators. Representative Luke Malek will be moving the legislation forward once it is finalized. While there are quite a few issues yet to be addressed by the parties at the table, it appears legislation will move forward. A second Representative, Lynn Luker, also plans to bring legislation forward that will be a bit more conservative than the legislation being drafted with Representative Malek.

Our legislative session begins in January and normally concludes in late March or early April. Any law that is passed and signed by the Governor will not take effect until July 1st unless an emergency is declared in the legislation. It is impossible to predict the likelihood of success for any ARTs bill given the conservative nature of the legislature. For AAARTA members who have expertise in legislative matters, any guidance would be appreciated.

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