Michigan Custody Law Must be Amended to Encompass Artificial Reproductive Technology

Category: Divorce & Family Law

Michigan is considering an amendment to the Child Custody Act that will enable parents who have children as result of in vitro fertilization from anonymous sperm and egg donors to be legally considered the child’s parents. Based upon current law, a parent, whose child was conceived in this manner, does not have standing to seek custody under the Child Custody Act. A “parent” has been defined by the Michigan legislature as the “natural or adoptive parent of a child.” The courts have interpreted a “natural” parent to be a person who is biologically related to the child. This is problematic for those parents who have been blessed with a child as a result of Artificial Reproductive Technology (ART). The problem is specific to those situations where a child born to a couple is the result of a donor egg and donor sperm.

For example, John and Melissa attempted to have a child for several years with no success. After medical tests were conducted, it was discovered that John has a low sperm count and Melissa has a genetic, hereditary disease that could be passed on to their future child. Melissa wants to give birth to her child. To accomplish this, the couple purchased an anonymous donor egg and anonymous donor sperm and a zygote was implanted into Melissa’s uterus using in vitro fertilization technology. Nine months later, Melissa gave birth to a healthy baby boy.

However, according to the Michigan Legislature, neither Melissa nor John is a parent to the newborn. If the couple were to separate, neither Melissa nor John would have standing to seek custody under the Child Custody Act. No Michigan court has ever found that the procedure of injecting an anonymously donated egg with the sperm from an anonymous donor in order to create a zygote and then implanting the zygote in a gestational carrier, followed by the carrier giving birth to the child to fit within the strict boundaries of the definition “natural”.

Technology has taken tremendous strides in an effort to provide loving couples with a child, it is time that our state legislature did the same.

With more and more couples turning to ART to have children, there is compelling need for the legislature to expand its definition of a “parent”. Most other states have already reformed their custody acts to be more inclusive so that children born as a result of artificial technology have a legal parent. In my opinion, a natural parent should be defined as a “non-adoptive parent, whether biologically related to the child or not, established by proof of having given birth to the child.”

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