Ask the Legal Expert: Assisted Reproductive Technologies
An attorney offers an overview on the laws that apply when building your family through assisted reproduction.
Q:"We're exploring assisted reproduction options to start our family, but we're wondering about the legal ramifications. Will we need a lawyer? What laws would apply?"
A:Today, options for family formation extend beyond adoption. Advances in medical science offer intended parents a number of new pathways to parenthood. Some of these paths, such as sperm donation and traditional surrogacy, have long been in existence. Other procedures, such as egg donation, embryo transfer, and gestational surrogacy, are more recent developments in the field now referred to as "assisted reproductive technologies," or ART. Just as it is important to understand the medical procedures involved in ART, it is equally necessary to appreciate the legal landscape upon which a family will be built.
In sperm donation, the intended mother is inseminated with sperm from a donor (who usually remains anonymous). Some states have laws that specify that a sperm donor is not the legal parent of a child conceived through artificial insemination. In other states, the law explicitly recognizes the husband of the intended mother as the child's legal father.
If the intended mother is capable of carrying a pregnancy, the intended parents may use donor eggs, and, with the intended father's sperm, participate in in-vitro fertilization (IVF). The resulting embryo is then transferred to the intended mother, who carries the pregnancy to term. Embryo transfer, sometimes referred to as embryo donation or adoption, occurs when intended parents make use of a cryo-preserved embryo that was donated by another couple. The donated embryo(s) may be transferred to the intended mother or to a gestational carrier.
As with sperm donation, state laws governing egg donation and embryo transfer vary. For instance, some specify that a woman who has donated an egg or a couple who has donated an embryo are not the legal parents of any resulting child. Other states recognize the woman who gives birth to a child conceived through ART as that child's legal mother. In cases where state law does not specify parentage, the donor(s) and the intended parents should draw up a written agreement, in which the donor relinquishes any parental rights.
In any case where the genetic material of a third party is used in family building, it is important that each party be represented by his or her own attorney, and that everyone sign a written document specifying parentage. [Find an attorney experienced in ART at adoptionattorneys.org. Click on your state's member directory and search for an attorney who lists assisted reproduction as a specialty.]
Carriers and surrogacy
In gestational surrogacy, a woman (the "gestational carrier") carries an embryo that is not genetically related to her. The gestational carrier literally offers the use of her womb to carry a child for the intended parents. Generally, the intended parents are also the genetic parents. An embryo created through IVF, with the mother's egg and the father's sperm, is transferred into the gestational carrier's uterus. Alternately, the intended parents may use either a sperm or egg donor, or a donated embryo.
While some states have laws that establish parentage in gestational surrogacy cases, the majority do not. [See an interactive map with surrogacy laws and practices.] In many states, courts have accepted petitions to recognize the parentage of the intended parents. These petitions are usually filed pre-birth and must include an affidavit from the physician overseeing the procedure, attesting to the identity of the genetic parents. The resulting parentage order recognizes the intended parents as the sole legal parents of the child and will also state that the gestational carrier (and her husband, if she is married) is not a legal parent. Again, parents should work with an attorney experienced in assisted reproduction.
An increasing trend today is the use of gestational carriers who reside in other countries. For example, many Americans have chosen to work with gestational carriers who reside in India. In these cases, the IVF procedure and the embryo transfer take place at a medical facility in India. The child is born in that country, and, in most cases, the Indian government will issue a birth certificate for the child listing the intended parents. The parents then obtain a United States passport for their child and travel back to the U.S. as a family. This option, however, is now closed to many types of intended parents. A government regulation passed late in 2012 barred gay couples, single men and women, nonmarried couples, and couples from countries where surrogacy is illegal from hiring a surrogate in India.
In contrast to gestational surrogacy, in traditional surrogacy, a surrogate is inseminated with sperm from the intended father. The surrogate provides the other half of the genetic material and carries the child to term. If the intended parents are married, the wife can adopt the child after birth through a stepparent adoption. Traditional surrogacy carries a number of inherent risks. First, the agreement between the surrogate and the intended parents is frequently not enforceable. If the surrogate gives birth and chooses to parent the child, the custody of the child will be disputed. Additionally, if the surrogate accepts compensation, the parties may run afoul of state adoption laws prohibiting the payment of monies to a birthmother.
Once you have a clear understanding of the legal ramifications of assisted reproduction, choose the route you're most comfortable with, and know how your parentage will be recognized, you'll be ready to embark on your family-building--and child-rearing--journey.
Peter J. Wiernicki, Esq., a principal in the Rockville, Maryland, law firm of Joseph, Reiner & Wiernicki, is a member of the American Academy of Adoption Attorneys.
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