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The child was created with her husband’s sperm and a donor egg.   The resultant embryo was then transferred into a gestational carrier who gave birth to the child.   The married woman argued that if she was artificially inseminated with donor semen, her husband would be considered the legal father pursuant to New Jersey statute.   While the statute does provide for legal recognition of the husband, the Court distinguished this case and required an adoption.

http://www.adoptionblogger.com/adoption_law_blog/2011/02/new-jersey-appellate-division-intended-non-biological-mother-must-adopt.html

See   http://adoptionlawyer.typepad.com/adoption_law_blog/2011/01/parentage-for-gay-men-granted-without-adoption-by-connecticut-supreme-court.html

After creating a family with a few of the embryos, many of those couples (or single parents) choose to donate the excess embryos to other individuals for conception. This is a real alternative to destruction and donation to scientific research.

The legalities of donating embryos to another infertile person(s) is relatively simple: it involves a contract between the donating and recipient parties. The parties’ identities may be guarded by the respective attorneys. It is viewed as any other donation of genetic material. However, some intermediaries call this process “embryo adoption.” That is a misnomer – no adoption is necessary. As the ASRM stated this month, the correct term is, in fact, “embryo donation”. “Home visits, judicial review and other adoption procedures are not necessary and not appropriate for a patient whose case entails what is most accurately characterized medically as a tissue donation,” stated in December issue of the journal Fertility & Sterility.

Parties with excess embryos should not be dissuaded from giving their unwanted embryos to another infertile person and couples should not be discouraged from receiving them because of inaccurate beliefs that they would have to undergo an adoption.

These latest developments give realistic options to patients who have leftover embryos stored at clinics around the country. When patients go through IVF to create embryos, whether with their own genetic material or that of a donor, they often have leftover embryos. With the increasingly successful IVF rates, doctors implant fewer embryos with better results. That means there are more leftover embryos of which to dispose.

Patients may choose to keep the embryos in storage, but that can cost hundreds of dollars a year in fees, and isn’t a final answer. They may choose to donate them to another person, but are often hesitant as the embryos would be the genetic siblings to their own children. Finally, they may choose to destroy them. However, after years of infertility, and the emotional and financial struggles that go along with that, patients have a philosophically hard time in doing so. A more popular option, therefore, may be to donate them to medical research with the idea that they are then helping society as a whole, even if the embryos are ultimately destroyed.

However the patients feel, they should speak with a fertility counselor, their doctor and an attorney in making their decision.

Some counties will just not release a birth certificate if there is a slight inconsistency in spelling, even though they know full well about whom the request pertains.

Are others dealing with this?  Any ideas?

All seem to agree the children were created in vitro, opening the possibility that donor material was probably used , at least in part. Just think of all the possible scenarios:

• Michael Jackson sperm; Debbie Rowe’s egg
• anonymous donor sperm; Debbie Rowe’s egg
• anonymous donor sperm; anonymous donor egg
• Michael Jackson sperm; anonymous donor egg
• known sperm donor; Debbie Rowe’s egg
• known sperm donor; known egg donor
• etc!

Debbie Rowe insists that she is the genetic mother and wants custody; DNA tests will prove this one way or the other eventually. But she already forfeited custody to Jackson: does she have any legitimate claim (if she is the genetic mother or not)? And what if the children are not related to Michael Jackson genetically? Does this strengthen Debbie’s Rowe’s claim for custody? And what if the sperm donor was known (his identity was known to Michael Jackson)? Does the donor have any claims?

Here’s what we do know: the State of California is arguably the most progressive in the US regarding surrogacy; more surrogacies take place in California than in any other state.  California case law shows that courts consider the intent surrounding the conception as the primary factor in determining custody. So if Debbie Rowe basically agreed to bear Michael Jackson’s kids for him, with the intent of his achieving full custody eventually, a court may very well rule in favor of Jackson’s estate, no matter the source of the genetic material.

However, it is unknown whether any parentage proceedings during the course of the pregnancies (if eggs to form embryos did not come from Rowe) culminated in Orders allowing the original birth certificates for the children to list only Michael Jackson as parent.  As Rowe and Jackson were married at the time of the births, absent such proceedings, Rowe’s name would be listed as mother on the birth certificates and she could not have voluntarily terminated her parental rights without an adoption and another parent stepping-in to assume them.

There may have been a surrogacy contract as well as sperm and egg donor contracts; we would assume that these would have been drafted by Jackson’s lawyers and that Rowe and any donor(s) would have had independent review by competent counsel. But we cannot know for sure at this point.

ACARAL will keep a close watch on these fascinating developments.