Want to make a baby? Options range from the back of your daddy’s Lincoln, to the turkey baster, to the sperm cocktail. Indeed, thanks to the ever-improving science of reproductive technology, more options are becoming available all the time. While the folks able to rely on traditional methods remain on their own, in recent years, I have assisted many clients in navigating the legal issues that arise with respect to a few of the technological alternatives.

Artificial Insemination
The only Massachusetts statute governing any form of assisted reproductive technology is Massachusetts General Law Chapter 46, § 4B. The statute provides that any child born to a married woman as a result of artificial insemination with the consent of her husband shall be considered the legitimate child of the mother and such husband.

Massachusetts, unlike several other states, has no other statutory law governing assisted reproduction. However, Massachusetts case law has created common law doctrines, which are equally enforceable as a statute.

Gestational Carriers and Surrogates
Massachusetts does not recognize a gestational carrier as the parent of a child carried for the intended parents as long as the egg is not from the carrier. This is true whether the egg and the sperm are from the intended parents or from anonymous or known donors. With the proper proof of history of the egg and the sperm, Massachusetts will also allow a pre-birth parentage order in the case of the known donors, if all parties agree.

If the egg is the carrier’s egg, an adoption is required to terminate the parental rights of the carrier, who in such circumstances is commonly referred to as a surrogate, because the egg is hers.

The Cocktail
Often times, same sex couples want to build their family using biological material from adults related to them. For example, a same sex couple may use the egg of a relative and fertilize the egg with the sperm of the non-related partner. In other cases, if the egg is not biologically related to either of the intended parents, the egg may be fertilized with a sperm “cocktail”; a mixture of both partners’ sperm. In either case, it is important and appropriate that both partners adopt the child, so that there is no mistake as to who the legal parents are in the eyes of the law.

These, of course, are just a few of the scenarios for creating a family today. New alternatives, and new legal issues surrounding those alternatives, seem to arrive on a daily basis.