Assisted Reproductive Technologies
As Assisted Reproductive Technologies (“ARTs”) have made collaborative reproduction a viable and popular option for family building. New to collaborative reproduction? What does it all mean? In the simplest of terms, it means more than two people working together to bring a baby in to the world.
In many states, including Missouri and Kansas, the law has struggled to keep up with medical science advances. It is therefore critical for intended parents and gestational carriers to protect themselves legally in this emerging area of the law. Mary Beck fielded her first surrogacy case around 2000. Having taught in Schools of Medicine and Nursing for 13 years before law school, Mary celebrates reproductive medical advances and uniquely understands and enjoys its intersection with the law. Joanna Beck Wilkinson is licensed in three states—Missouri, Kansas and Illinois. She has thrice presented at the American Academy of Adoption & Assisted Reproduction Attorneys conferences on state-by-state collaborative reproduction law.
Mary and Joanna have now helped hundreds build their families with collaborative reproduction. Because they are fellows in the Academy of Adoption & Assisted Reproduction Attorneys they are able to stay current with the issues emerging in this intersection of medicine and law. Additionally, Mary and Joanna have more than 40 years collective experience in adoption law. They are therefore knowledgeable about multiple issues in establishing legal parentage both domestically and internationally.
LMB’s ARTs practice is largely dedicated to surrogacy. There are essentially five broad steps to having a baby via surrogacy:
- Matching: Matching between intended parents and gestational carrier (and/or egg or sperm donor) are accomplished by agencies or the parties themselves.
- Clearance: Achieving medical approval, mental health evaluation, and criminal background clearance is time consuming. Reproductive Endocrinology AKA Fertility clinics generally address and asses the parties’ medical fitness. Here are some resources for fertility clinics. Licensed mental health providers conduct mental health evaluations and clearance. Agencies typically seek Criminal background checks.
- Contract: Negotiating to reach a consensual written agreement between the parties about prenatal support and compensation, medical insurance, confidentiality and decisions during the pregnancy. Some states have legal rules about contracts. Other states make them unenforceable or even impose criminal penalties. This map is an excellent resource for the status of the law in various states. Experienced attorneys can help navigate states with difficult law.
- Parentage: Establishing the intended parents as legal parents, dis-establishing the gestational carrier (and her husband, if applicable) as legal parents and, if applicable, overcome any presumption that the egg or sperm donor is a parent. Some states have law that specifically outlines the process for establishing parentage in surrogate pregnancies. This map is a good resource for summaries on state parentage law.
- Vital Records: Attorneys obtain birth certificates, and passports/visas, if desired, that reflect intended parents as a child’s legal parents.
The matching and clearance steps may overlap. The contract, parentage and vital records steps happen in order. LMB represents intended parents, gestational carriers and their spouses and gamete donors in the contract, parentage and vital records steps.
Assisted Reproductive Technology Definitions
Simply put, collaborative reproduction is when:
- a person donates his sperm or her eggs for use by someone else (commonly referred to as sperm or egg donation), and/or
- a person carries a baby for someone else (commonly referred to as surrogacy)
Assisted Reproductive Technology
Collaborative reproduction usually involves ‘assisted reproductive techniques’ AKA ‘assisted reproductive technology’ (ARTs) to achieve a pregnancy.
Simply put, ARTs are when a doctor, often a specialist called a reproductive endocrinologist:
- harvests eggs/ova, and/or
- collects sperm, and/or
- alternative/artificial inseminates, and/or
- performs in vitro fertilization of egg and sperm, and
- transfers embryos into a woman’s body.
An intended parent is the person who intends to be the parent of a child created by collaborative reproduction—whether or not s/he is married and whether or not s/he is genetically related to the child. In Missouri, it is the parent’s intent, and not her genetic relationship, that allows her to legally establish her parentage.
Simply put, surrogacy is when a woman (commonly called a ‘gestational carrier’) carries a baby for an intended parent. In order for a gestational carrier to get pregnant with an intended parent’s baby, a physician uses ARTs, as described above, to form the embryo and then implant it.
A so-called ‘traditional surrogacy’ is when the gestational carrier is also the genetic mother of the child. Traditional surrogacy is fraught with legal risk.
Egg & Sperm Donation
Gamete is a handy term that refers to both sperm and egg. Gamete donation is when a person donates her eggs/ova or his sperm for use by an intended parent. The intended parent can then (1) find someone else to donate the other requisite gamete, or (2) use his/her own other gamete, or (3) use his/her own spouse’s gamete to create an embryo. After that, the intended parent can either (A) carry the embryo herself if she is medically able, or (B) arrange for a gestational carrier to carry the embryo.
Embryo donation is when a person or couple donate embryo/s previously created, with the assistance of a doctor, to an intended parent. The intended parent can then (A) carry the embryo herself if she is medically able, or (B) arrange for a gestational carrier to carry the embryo.
This is just a written agreement between a gestational carrier (and her spouse, if she’s married) and an intended parent (or intended parents, if they are married) that spells out, as accurately as possible, what everyone is promising to do. From a legal standpoint, the point of a contract is that if anyone breaks a promise, a court will get involved. Some states’ laws provide an actual streamlined process for establishing parentage if the parties have properly negotiated and signed a surrogacy contract. Other states strictly forbid surrogacy contracts.
From a personal standpoint, having a surrogacy contract helps eliminate differences in what the parties are expecting—because it’s all written down. From a logical standpoint, reputable ARTs clinics require that the parties hire separate lawyers and negotiate and sign a surrogacy contract.