Assisted reproductive technology is techniques that individuals can use if they are having trouble conceiving a child. As the number of individuals and couples using these techniques continues to increase, the laws are growing to address issues related to basic parental rights.
There are numerous different types of assisted reproductive technology, including:
- In vitro fertilization (IVF);
- Gamete intrafallopian transfer (GIFT);
- Zygote intrafallopian transfer (ZIFT); and
- Frozen embryo transfer (FET).
There are also other techniques that may be used, such as medications used to increase fertility or surrogate mothers carrying a child and then the parents adopting the child. These techniques can create many legal issues related to parentage and custody.
What Are Types of Assisted Reproductive Technology?
There are different types of assisted reproductive technologies that individuals can use. In vitro fertilization (IVF) is a medical procedure where an egg is fertilized by sperm outside of an individual’s body in a laboratory.
The fertilized egg, now an embryo, is implanted into a surrogate’s uterus in an attempt to establish a successful pregnancy. Surrogates are females who carry a child or children on behalf of other parents.
Egg donation usually involves the Intended Parents (IPs) obtaining all the eggs from one or several egg retrieval cycles that become their property. Sperm banks, or cryobanks, are facilities that collect, freeze, and preserve donated sperm samples for use in artificial insemination and other assisted reproductive technologies.
Before being made available to potential parents, sperm is often tested for genetic and viral disorders. There are two categories of sperm donations, anonymous and known.
Surrogacy is used when an embryo is implanted in a female other than the genetic mother who carries the child for the parents. Surrogacy may be used when a female is not able to carry a child themselves.
What Are the Legal Considerations of ART?
There are numerous legal considerations of ART. These concerns are always expanding along with the technology being used for infertility treatments.
Examples of frequent legal challenges associated with infertility treatments include:
- Personal injury from treatments for infertility: Assisted reproduction does involve some hazards. There have been rare cases of injury to the unborn child or the mother during pregnancy;
- Concerning insurance, federal laws do not require that infertility treatments be covered by insurance. The issue then becomes whether ART insurance is required by state law. The regulations governing the necessity of insurance differ greatly between states;
- Disclosure of private information: The use of private information of donors and other participants private information has been debated, especially in cases involving adoption or surrogacy;
- In general, disclosure laws forbid the illegal distribution of client information;
- Wrongful birth: Fertility treatments have led to unwanted birth defects or unintended pregnancies, for example, after the couple has already conceived the desired number of children; and
- Denial of work benefits or wrongful termination: Infertility treatments typically require time off from work, which may lead to disputes over employment conditions.
Technological advances commonly create novel legal issues. With ART, the process involves creating multiple embryos.
Implantation of an embryo in a uterus is attempted for only a small percentage of the embryos. An individual may be successful with a pregnancy and have embryos that remain unused and frozen.
If embryos remain, an individual must decide what to do with them. They will typically remain frozen in storage, for a fee, until the individual makes their decision.
If an individual chooses to use a surrogate, they will typically sign a surrogacy contract, that covers a variety of topics, including, but not limited to:
- The right of the biological parent to attend a surrogate’s medical exams as well as review the surrogate’s medical records;
- Testing of all parties involved for any sexually transmitted diseases;
- Evaluation of the surrogate mother’s genetic history;
- Signing an anti-disclosure statement that prevents the surrogacy from being made public;
- Psychological counseling for all parties involved;
- A determination of parental rights;
- Whether any compensation will be provided; and
- Termination of the agreement.
An individual should consult with a local attorney to obtain an understanding of the current laws that govern surrogacy legal agreements in the state where they reside.
What Are the Ethical and Moral Issues with ART?
There are numerous ethical and moral issues related to ART, including, but not limited to:
- Children born by these techniques;
- The extra human embryos that are frozen along with the issues that may arise from the treatment given to those embryos;
- The loss of embryos that occurs in IVF;
- The embryo selection that is done using preimplantation genetic diagnosis (PGD) to transfer only the embryos of the best quality;
- Gamete donation, especially the right to privacy of the donors and the right of the children to know their parents;
- The production of savior siblings; and
- The possible use of these techniques for social purposes, unrelated to the woman’s own fertility, such as gestational surrogacy and social freezing.
Another issue related to ART is the cost of and the inequitable distribution of access to care. In other words, IVF may be more available to individuals who are in a position of financial strength.
There are also religious issues with ART, which may vary across religious groups. According to Christianity, an embryo is a human at conception, making most ART technologies unavailable.
Other religions may allow IVF and embryo transfer, but only for a married couple.
How Can Child Custody Be Affected by ART?
Child custody issues can arise when ART is used. For example, there may be custody issues related to frozen embryos if a couple divorces before the embryos have been implanted.
In these types of cases, one of the spouses may want an additional pregnancy at a later time while the other may not because of the divorce. If a child was born, both parties would still be legally obligated to support the child, as they would be the biological parents of the child.
In general, a provider will require a couple to sign an agreement and consent form before beginning the ART process that clearly indicates what the clinic should do with any stored frozen embryos in the event the couple separates or divorces. There are three approaches courts take on this issue, the contractual approach, the mutual consent approach, and the balancing approach.
The contractual approach follows the agreement that specifies how the embryos should be used, donated, or disposed of in the event of a divorce. With this approach, the court will uphold any agreement made by the parties and will enforce it if one of the parties challenges its provisions.
The mutual consent approach requires mutual consent from both of the parties before a ruling is made. Even if the parties had an agreement regarding how the embryos would be treated, the court will not automatically rule based on what that agreement says.
With this approach, the court will require the parties to agree regarding whether the embryos should be used, donated, or disposed of. If the parties cannot reach an agreement, the court will likely order that the embryos remain frozen until the parties can agree on a resolution of the issue.
With the balancing approach, the court determines what it deems is the appropriate treatment of frozen embryos. In these cases, the court will weigh the interests and circumstances of both parties in an effort to reach a fair outcome.
The court will examine several factors, including the outcome each spouse prefers. It is important to note that a court may give more weight to a party whose last chance at parenthood lies with the embryo.
What Are the Global ART Laws?
There are some laws governing the use of ART in the United States and across the world. The Uniform Parentage Act (UPA) was enacted to “ensure that all children and all parents have equal rights concerning each other, regardless of the marital status of the parents.”
The UPA was updated in 2017 to provide rights to children who were conceived using assisted reproductive technology to access medical and identifying information related to any gamete providers. There are also laws being enacted around the world that apply to ART, such as the Indian 2021 Assisted Reproductive Technology (Regulation) Act.
It is important to be aware that these laws will vary by country and are being updated, especially as technology advances. It is always important to consult with an attorney for the most current laws on ART.
How Can You Ensure Legal Protection When Using ART?
It is important for an individual to take steps to ensure their legal rights are protected when they are using ART. An individual should seek legal advice to determine what types of agreements and contracts they can use during the process and how they may be enforced at a later day.
It is also important for an individual to obtain legal advice because the regulations and technologies are always changing. Getting up-to-date advice will help ensure an individual has the best protections possible.
Should I Consult with an Attorney?
If you have any issues, questions, or concerns related to assisted reproductive technology, it is essential to consult with a family lawyer who can provide you with detailed information to guide your decision making and protect your rights. Having a child is one of the biggest decisions you will likely ever make, so it is important to consider every possibility and outcome when using ART.
It is also very important to have legal safeguards for yourself and your future child when using ART. Your lawyer can help you draft any needed contracts or agreements that will be valid and enforceable in your state.
