GPSOLO January/February 2010
Fertility Law
Biotechnology is providing the human race with new capacities for altering human reproduction. Third-party assisted reproduction has helped countless couples and individuals have children when the possibility may not have existed for them before. The law, although it has moved at a much slower pace than medical technologies themselves, has adapted to these changes and reflects the often-conflicting responses to these cutting-edge developments.
The science of assisted reproduction officially began in 1790, when Scottish surgeon John Hunter reported the first case of successful human artificial insemination, although most of the world probably did not know it had occurred. Some additional dates worth mentioning are as follows:
1884: First artificial insemination using donor sperm.
1954: First successful pregnancy using frozen sperm.
1977: First successful in vitro fertilization (IVF) pregnancy achieved, although no birth resulted.
1978: First baby born from IVF (Louise Brown, in England).
1981: First IVF baby born in the United States (Elizabeth Jordan Carr).
1984: First baby born from a frozen embryo (Zoe Leyland, in Australia).
1990: First child born following preimplantation genetic diagnosis (PGD).
1992: First successful pregnancy using intracytoplasmic sperm injection (ICSI).
1996: A 63-year-old Southern California woman gives birth using a donated egg.
1997: First successful birth using frozen eggs.
1999: Natalie Brown, younger sister of Louise Brown, becomes the first test tube baby to naturally give birth to a child.
2003: A 65-year-old becomes the oldest known woman in the world to give birth using a donated egg.
As of 2003, more than 1 million babies had been born using in vitro fertilization, including more than 200,000 in the United States.
Who Are the Parties Involved?
According to the American Society for Reproductive Medicine and U.S. Centers for Disease Control and Prevention, one out of every six couples will experience a fertility-related problem at some point. In response, many turn to third-party reproduction. Numerous parties may be involved:
Intended parent(s). This is the couple or individual intending to raise the child born via third-party reproduction. The intended parent(s) may or may not be genetically related to the child.
Egg donor. This is the fertile woman who donates eggs for use by intended parents. Use of donated eggs is an option both for men without a female partner or for women who have poor ovarian response or poor egg quality.
Sperm donor. This is the fertile man who donates sperm for use by intended parents. Use of donated sperm is an option for women without a male partner or for men with low/no sperm.
Embryo donors. These are the individuals whose egg and sperm previously created an embryo that can now be implanted in the womb of another woman. Use of previously created embryos is a relatively new option for couples and individuals who are trying to cut costs in their quest for a child. The process has received support from some religious authorities who hold the view that life begins at conception. Many private agency programs as well as fertility clinics consider the process to be a donation, whereas others consider it an adoption that involves a home study (an investigation of prospective adoptive parents to make sure they are fit to raise a child). The State of Georgia has codified embryo adoption into law.
Surrogate/gestational carrier. Surrogate mothers can be party to the process through two different types of surrogacy:
- Gestational surrogacy (in vitro fertilization). In this option, the intended parents create embryos that are transferred to the surrogate mother. The surrogate mother then gestates the child but maintains no genetic link. The eggs can be provided by either the intended parent (mother) or by an egg donor.
- Traditional surrogacy (artificial insemination). In this option, the surrogate mother donates her egg. The intended parent (father) or a donor provides the sperm that is used to fertilize the egg inside the surrogate’s womb. The surrogate mother gestates the child and has a genetic link to the child.
Use of a surrogate or gestational carrier is an option for men without a female partner or for women who are unable to carry a pregnancy to term.
What Is the Law?
The laws governing assisted reproduction still vary from state to state and often from county to county in those states where little or no laws exist. In my home state of California, the courts provide one of the most favorable legal forums for surrogacy, sperm donation, and egg donation for couples and individuals, regardless of whether they have utilized a surrogate, their own egg/sperm, donated egg/sperm, or donated embryos. Under current California law, a well-drafted agreement will give all parties the confidence that a child born through egg donation, sperm donation, or surrogacy will be free of any legal conflict. All parties can be assured that their intentions under their contracts will be upheld in the state. Other states, such as Florida, Illinois, Texas, and Utah, also have passed legislation defining the status of children born by egg donation, embryo donation, and/or surrogacy.
Practitioners must note that not all of these states handle these matters the same way; some require pre-court approval of the agreement, use of at least one parent’s genetic material, or complete court oversight.
Lawyers advising clients in matters of assisted reproduction should pay particular attention to the status of surrogacy in their jurisdiction. Where surrogacy is concerned, each states falls into one of four categories:
- States where it is a crime to pay for surrogacy (e.g., Arizona, Michigan, New York, and Washington).
- States where surrogacy agreements are unenforceable (e.g., Arizona, Kentucky, Michigan, and New York).
- States where the law recognizes surrogacy through legislation and/or case law (e.g., California, Florida, Illinois, Texas, and Utah).
- States that do not address surrogacy (e.g., Montana and Wyoming). In these states, the parties’ agreements and rights are uncertain.
Internationally, commercial surrogacy is banned in a number of countries, such as France, Germany (which also bans egg donation), Greece, Israel (which has recently legalized noncommercial surrogacy arrangements), Italy, Norway, Spain, Sweden (which also bans the use of donated eggs or sperm), and Switzerland. In the United Kingdom, not only is commercial surrogacy banned, but egg and sperm donors lose their right to anonymity; any child that they help produce can learn their identity at the age of 18 years.
Advice for Practitioners
Dabbling by a lawyer in the field of reproductive and family formation law is absolutely not recommended. It is not as simple as writing a contract and moving on to the next client. You must make certain that potential clients understand the risks and rewards of each case before they execute a contract; don’t let them discover the pitfalls at the time of the birth. As noted above, these risks and pitfalls vary greatly from state to state. It is often better to refer a case to a more experienced practitioner who understands at the outset the risks that a particular client may face either pre-birth or at the time of the birth, regardless of any genetic connection between the client and the child.
This field involves many different aspects of the law; there are potential issues under contract law, constitutional law (abortion/travel/privacy), tort law (injuries/malpractice), tax law, family law (parentage), property law (embryos), and insurance law, to name a few. There are also many potential issues regarding traditional surrogacy, as the surrogate is genetically related to the child to whom she is giving birth.
From the beginning of the process, when clients decide to move forward with reproductive medicine, they are provided informed consents from their physician, which can involve issues of disposition of embryos and how they are to be handled in the event of divorce or death. Many clients only read this material minutes before they undergo a procedure and often do not have any idea of the future repercussions: Can the clinic donate or destroy embryos if they cannot locate the client after a certain number of years? Can the client’s ex-wife implant their embryos, leaving the client liable for parenting and support? Can a client’s family use the embryos after the client’s death? It is crucial that these consent forms are read well in advance and reviewed by someone who understands the issues involved.
The reproductive treatments themselves involve many important and complicated issues:
- Disposition of the embryos when a third party (egg, sperm, or embryo donor) is used.
- Potential and/or inadvertent disclosure to the children born through reproductive technologies.
- The use of third-party agencies to facilitate the process and match the surrogates, egg donors, and sperm donors.
- The rights of the child.
- The maintenance of records for future medical issues.
- Federal and state treatment requirements.
- The use of trust/escrow accounts.
- The politics affecting certain aspects of this technology, such as stem cells and the payment of donors, to name just a few.
If the above warnings have not scared you away, and if you think that this area of law would be a challenging and rewarding addition to your practice, the first place to start is right here at the American Bar Association. The Section of Family Law hosts the Assisted Reproductive Technologies Committee, and you are welcome to join. Find out more at www.abanet.org/family/committees.
If you do decide to enter the field of reproductive and family formation law, I urge you to take to heart the following words, which I have used as a touchstone for my own practice: All families are traditional; some just take alternative paths by using surrogacy, adoption, egg donation, embryo donation, and sperm donation to become a family. And remember, by entering into this field, you will find yourself challenged, rewarded, and fulfilled—albeit emotionally spent at times—each and every day that you work with these individuals and couples who so desperately want a child to make themselves a family.
Theresa M. Erickson, Esq., is managing partner of Erickson Law, PC, a California-based firm that practices exclusively in the area of reproductive and family formation law. She may be reached at www.ericksonlaw.net.