The Uncertainty of the Increasing Use of Preconception Agreements

March 2, 2016

Depending on how closely you follow celebrity news and gossip, you might have heard that Modern Family superstar Sofia Vergara, although now married to actor Joe Manganiello, is currently in a custody battle with her ex-fiancé, Nick Loeb. But the twist in the story is that Vergara and Loeb do not have children together, instead Loeb wants legal control of the frozen embryos the two had created while they were together.
Assisted reproductive technologies (ARTs) provide many ways for couples to have biological children without partaking in the standard process of conception from heterosexual intercourse. One of the most common ARTs is In Vitro Fertilization (IVF), which is done by manually combining an egg and sperm in a laboratory dish. This creates an embryo, which is then transferred into the uterus of the egg donor (biological mother) or a surrogate (birth mother).
IVF and the births of “test tube babies” are increasing in popularity in the United States and other parts of the world. Some couples choose this method when they are having fertility trouble, such as blocked fallopian tubes or poor sperm quality. Some women use this procedure and a sperm donor to become pregnant when they do not have a partner. Many same-sex female partners decide that one partner will donate the egg and the other will carry the pregnancy to start a family; and many same-sex male partners choose to use a mixture of their sperm, an egg donor, IVF, and a surrogate mother to carry the embryo to term to start a family.

These technological advances are creating many options for family-starting for several types of non-traditional families, but unfortunately, just as with any relatively new and evolving technology, the legal system has trouble keeping pace with the progression.

One way people attempt to make these agreements about ARTs legally binding is by making “preconception agreements” with the help of lawyers. A preconception agreement is a written agreement entered into by prospective parents, which describes the roles and responsibilities each of the parties will have in the prospective child’s life. The key point is that they are formed before conception when all parties are equal. Most states have no statutes regarding surrogacy agreements or preconception agreements, but some do permit them. In addition, some states allow pre-birth orders, which put both of the intended parents’ names on the birth certificate, rather than the biological mother. These are typically used in surrogacy situations. Although there are a few cases that attempt to straighten out some of the inconsistencies and legal mysteries surrounding these non-traditional family situations, there is much uncertainty and inconsistency in domestic courts in the realm of preconception agreements.