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June 01, 2016

Assisted Reproductive Technologies: A New Hope

Brian Esser

The medical advances associated with assisted reproductive technology (ART) are typically thought of only in relation to people experiencing infertility. The scope of the problem is significant: one in eight different-sex couples is reported to have difficulty conceiving.1 Medicine’s improved understanding of the causes—and solutions—to the inability to conceive and bear a healthy child has improved the lives of these families.

ART has also driven a social revolution as to whom, how, and when people choose to become parents. The United States has seen a trend of men and women delaying the birth of their first child as they marry later and pursue careers. While men are biologically capable of having children at almost any age, a woman’s fertility declines over her lifetime, making it challenging (but not impossible) for a woman over age 40 to conceive a child without assistance. Increasing numbers of single women and single men are pursuing biological parenthood on their own—deciding that the lack of a spouse or partner should not stand in the way of building a family. As the stigma of homosexuality decreases and legal protections for LGBT (lesbian, gay, bisexual, and transgender) people and families increase, greater numbers of same-sex couples are building families. Single people and same-sex couples rely on ART in varying degrees (by, for example, utilizing sperm or egg donors, in vitro fertilization (IVF), and surrogates) because they lack all of the components necessary for conceiving a child.2 As processes and techniques become available for new sets of intended parents, it fuels the interest and increases the social acceptance of new family forms.

Also helped by the advances are families who do not have problems conceiving but may be carriers for genetic diseases. Preimplantation genetic diagnosis (PGD) was developed, in part, to help fertility centers select embryos for transfer that had the highest likelihood of resulting in a successful pregnancy. The technique also allows laboratories to identify whether a particular embryo has genetic markers for conditions that could reduce the resulting child’s quality of life, and therefore not use the affected embryos. Tests can also be performed to ensure that intended parents do not use donors who carry recessive genes for the same genetic conditions as the intended parents—information that is important to know before embryos are created.

The discussions about and debates over the legal and ethical implications of ART—and the new family forms it creates—continue to fascinate as they play out. Ethicists have examined the status of gametes and embryos—and the degree of respect they deserve—as well as questions of informed consent for the participants. Well-meaning people can and do disagree about questions like whether compensating women to serve as egg donors and gestational surrogates is commodification of women and children. The overarching ethical discussion is whether what is possible is also appropriate. Some technologies, like reproductive cloning, have been determined to be unethical and banned. Case law and statutes have grappled with serious questions: Who is a donor versus who is a parent? How does a person acquire legal parentage—by genetics, gestation, marriage, intent, or functioning as a parent? What is the legal status of children who are conceived after their genetic parent has died? And should certain techniques or practices be permitted under the law because of their ethical implications? Different countries have taken very different approaches and reached starkly different conclusions to some of these legal and ethical questions.

These families come to ART through different paths, but all for the same purpose: to fulfill their desire to become parents. Medical and scientific advances have given them a new hope and helped them forge a new path. The articles that follow provide a look into the some of the emerging scientific, legal, and ethical issues around modern family building.

Endnotes

1. Ctrs. for Disease Control, 2006–2010 National Survey of Family Growth (2010).

2. The exception to this statement is if one or both partners are transgender, then the couple, without third-party assistance, may have sperm, ova, and a uterus to gestate a pregnancy.

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Brian Esser

Brian Esser ([email protected]) focuses his law practice on adoption, reproductive law, and estate planning for families of all kinds. He is president of the National LGBT Bar Foundation’s board of directors and a member of the Family Law Institute and the American Bar Association’s Section of Family Law Committees on Adoption and Assisted Reproductive Technologies.