This blog post is the first in a three-part series that describes legal issues in assisted reproduction. In this blog, we’ll explore the issue of “consent.”
The law states that if a husband either provides sperm or consents to assisted reproduction by his wife, then he consents to being the father of that child. That statement comes as no surprise. What might surprise some to know is that the husband’s (and wife’s) consent, however, must be in a signed record kept by the licensed physician who provides the assisted reproduction services. So, maintaining documentation of consent is critical. Mostly.
Without a record of consent, the husband can still be found to be the father of the child if the husband and wife openly treated the child as their own. If the husband did not treat the child as his own, then he can bring an action to challenge paternity any time prior to the child’s fourth birthday. Then, a court must find that the husband did not consent either before or after the child’s birth. The husband can bring an action after the child’s fourth birthday only if three elements are present as follows: (1) he didn’t provide the sperm for or consent to the assisted reproduction; (2) he and his wife didn’t live together since the probable time of assisted reproduction; and (3) he never openly treated the child as his own.
In part two of this series, we’ll look what happens if divorce occurs before eggs, sperm or embryos in storage are placed into the wife. Stay tuned.
Author Jim Cramp is the founder and principal attorney at the Cramp Law Firm. The Cramp Law Firm provides a spectrum of family-related legal services in the greater San Antonio Region.