§1966.__Effect of dissolution of marriage or withdrawal of consent

1.__Prior to placement.__If a marriage is dissolved before placement of eggs, sperm or embryos, the former spouse is not a parent of the resulting child unless the former spouse consented in a record that, if assisted reproduction were to occur after a divorce, the former spouse would be a parent of the child.

2.__Withdrawal of consent.__The consent of a woman or a man to assisted reproduction may be withdrawn by that individual in a record and by delivery of a written notice of withdrawal of consent to the woman who intends to give birth to the child born of assisted reproduction at any time before placement of eggs, sperm or embryos. An individual who withdraws consent under this section is not a parent of the resulting child.

Comment

(This is section 706 of the UPA.)

This section is entirely new to the Parentage Act, but its logic is derived from the policy stated in § 707, infra. Subsection (a) applies only to married couples and posits that if there is to be no liability for a child conceived by assisted reproduction after death, then there should be no liability for a child conceived or implanted after divorce. If a former wife proceeds with assisted reproduction after a divorce, the former husband is not the legal parent of the resulting child unless he had previously consented in a record to post-divorce assisted reproduction. If such were the case, subsection (b) provides a mechanism for him to withdraw that consent, i.e., by so stating in a record (presumably to be filed with the laboratory in which the sperm or embryos are stored).

An amendment in 2002 extends a similar right to an unmarried man. Although there is no automatic cancellation of consent via divorce in the unmarried context, the man may withdraw his consent to ART before the woman conceives or is implanted, and thereby avoid being determined to be the legal parent of the resulting child.

In either fact scenario, a child born through assisted reproduction accomplished after consent has been voided by divorce or withdrawn in a record will have a legal mother under § 201(a)(1). However, the child will have a genetic father, but not a legal father. In this instance, intention, rather than biology, is the controlling factor. The section is intended to encourage