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When the Law Says You're Not a Parent: New York Law on Donors and Second Parent Adoption

a blog by Kim Griffiths, February 6, 2013

Saturday’s New York Times featured the story of Johnathan Sporn, a pharmaceuticals executive who is fighting for parental rights of his son, conceived with late girlfriend, Luann Leutner. Leutner committed suicide on New Year’s Day after a long bout of mental illness and postpartum depression.

Despite trying to conceive with Sporn’s sperm, the couple turned to a sperm donor with in vitro fertilization (IVF) to get pregnant. Since Sporn did not legally adopt the child, baby Lincoln Sporn Leutner was placed in New York City foster care. In the eyes of the law, Sporn is not the father of the child until he can provide some legal documentation proving his intentions to father the child with Leutner.

Given the advanced reproductive techniques available today, like IVF with donor eggs, donor sperm, or even gestational surrogacy, it is crucial for a couple considering third party reproduction to seek legal counsel. Amy Demma, a New York state licensed attorney, says “the laws are pretty clear in New York [regarding gamete donation], but there are ways for intended parents to protect themselves and their parental rights.” When intended parents consider third party reproduction, they should first work with an attorney who understands family building laws and can draft an agreement that clearly defines the intentions of all parties involved. Currently, New York law requires an intended parent to adopt the baby conceived of donor gametes.

“We don’t really know if Dr. Sporn had begun the second parent adoption process, but the second parent adoption was not completed at the time of Ms. Leutner’s death. We also don’t know who is on the birth certificate or what information is on the consent forms at the fertility clinic. With Ms. Leutner’s postpartum depression and hospitalizations taking precedence, we don’t know how far they got in the adoption process if at all," Demma states.

When questioning Sporn's paternity, it comes down to this: What were the intentions of each party involved (Leutner, Sporn, and the donor) prior to the embryos being created?

If the accounts are true that Sporn entered into fertility treatment with Leutner with the intention of becoming a parent, we can only hope that his name is on some binding document and that Sporn can prove clear intent to be a parent before the embryo was created. Demma recommends second parent adoption for all third party reproduction cases in the state of New York to avoid these legal complications and advises fertility patients that they can seek legal counsel even if they are in the midst of a fertility treatment cycle. A donor agreement drafted during the cycle will outline the roles and responsibilities of the parents and donor. A second parent adoption after the child’s birth will ensure the rights of the intended parent are honored.

The cost of drafting a donor agreement is approximately $1,000, which is reasonable compared to the cost of IVF. It is a smart decision to seek the assistance of an attorney, only takes a few weeks to complete, and gives the couple peace of mind knowing their arrangement is legally sound.


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