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ART: Law & Practice

ART: Law & Practice | IVG: The New IVF?

By Brian Esser

For decades, assisted reproductive technology (ART) has been at the nexus of science and the law. Doctors and lawyers team up to help an intended parent fulfill his or her dream of having a child who is genetically related to him or her. Now, as the technology side is on the cusp of major advances, it is imperative that attorneys stay up to date on their clients’ newest options.

Perhaps the most exciting—and controversial—recent innovation in reproductive science, in vitro gametogenesis (IVG), has the potential to end infertility as we know it. “Potential” is the key word, as the science is still in the experimental stage. The big breakthrough happened in October 2016, when reproductive biologist Katsuhiko Hayashi announced that his team at Kyushu University had successfully created fertile mouse egg cells entirely from mouse skin cells. Once fertilized, the embryos were implanted into female mice, who then produced mice pups.

The process can be distilled into a handful of steps that are misleadingly simple. First, cells from an individual or organism, often skin cells, are converted into pluripotent stem cells, meaning that they have the ability to become any cell in the body. In the past, it was thought that embryos were the only source of stem cells, which caused some kinds of stem cell research to be banned in the United States. Subsequent advances, however, proved that other types of cells could be the raw material for stem cells. Then the stem cells must be “programmed” to become other types of cells—and thus the breakthrough. Researchers proved that stem cells could be programmed to become egg cells and that the egg cells could then be used to create viable embryos, which resulted in healthy offspring in mice.

In the years ahead, IVG has the potential for human use. A man with no sperm and a woman with no eggs could each have a biological child. A same-sex couple could use stem cells to create a child who shares their DNA without the need for egg or sperm donors. A person anticipating treatment for cancer would no longer need to fear the effects of chemotherapy on his or her future ability to procreate. In further uncharted territory, in solo IVG, one person could have a baby created completely from his or her own genetic material. It is also possible that a person could use the stem cells of a deceased person to create a new life.

Critics have raised the specter of potential IVG misuse. Some have suggested, for example, that an obsessed fan could steal a celebrity’s DNA from a discarded hair to have the celebrity’s child.

These types of advances raise two sets of concerns for the law. The first is whether, and to what extent, the technology should be developed and utilized. Existing U.S. law limits certain kinds of stem cell research. The Food and Drug Administration has similarly prohibited the use of so-called three-parent in vitro fertilization (IVF) technology, where the DNA of a woman whose eggs have deficient mitochondria (subcellular bodies that produce energy for the cell) is inserted into an egg cell with healthy mitochondria. While this technology is permitted in the United Kingdom and several healthy children have been born as a result, the technology remains illegal in the United States, and at least one doctor has faced regulatory enforcement procedures for his role in providing this care to U.S. citizens in Mexico.

Second, for family law practitioners, the concerns relate to the legal parentage of the child. Do existing legal frameworks such as the Uniform Parentage Act or the ABA’s Model Acts recognize that each person in a same-sex couple may be a genetic progenitor of the couple’s child? What are the legal implications of a new capacity to conceive a child from residual cell samples of a person who died months, years, or even decades ago? And does a person have a legal obligation to a child who was conceived with gametes created from cells and tissues that the person was not aware he or she had discarded? And how does a man prove that a child was conceived without authorization if a person—male or female—steals his DNA from discarded samples?

In response to these two kinds of concerns, modern statutory schemes governing ART define what is permissible, not who may use the technique. In other words, sperm donor and surrogacy statutes do not require intended parents to be married heterosexual couples. Unmarried individuals or couples, whether same-sex or different-sex, may use donors or surrogates to conceive. But policy makers and our society will need to make some new determinations. For example, should people who are genetically male be permitted to use IVG to create oocytes? Will it matter if the person is transgender? Will it matter if the person’s partner is also genetically male and can create sperm? Presumably there will no longer be age limits on the ability to create a woman’s genetic child—should policymakers impose age limits? Is it ethical to create a child with oocytes and sperm created from just one person’s DNA? When and how should posthumous conception be permitted? Some states already address the posthumous issue, but IVG could make the question arise more frequently.

IVF technology was, and still is, considered by some to be an inappropriate human tinkering with biology and reproduction. Advances in gene editing and mitochondria donation have been the target of recent criticism. IVG technology raises and compounds these concerns. While its application to humans may still be years away, many bioethicists believe that the time to begin the conversation is now. People pondering the technology may be inclined to immediately reject it as too novel, too scary, and too unfamiliar. Discussing the application to specific scenarios (such as one in which people with an infertility diagnosis create gametes that correspond to their genetic sex) may help alleviate the fear and develop consensus.

Brian Esser of the Law Office of Brian Esser PLLC in Brooklyn, New York, concentrates his practice on adoption, reproductive law, and estate planning. He sits on the Board of Directors of the National LGBT Bar Association’s Foundation and currently serves as Board treasurer. An adoptive dad, he volunteers at the Brooklyn Community Pride Center’s LGBTQ Brooklyn Legal Assistance Project and is a member of the ABA Family Law Section Committees on Adoption and Assisted Reproductive Technology, the New York City Bar, the Brooklyn Bar Association, and LeGaL (LGBT Bar Association of Greater New York).

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