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ART: The Legal Perspective

An attorney explains what laws apply when you build your family through assisted reproduction. 

by Peter J. Wiernicki, Esq.

Just as it is important to understand the medical procedures involved in assisted reproductive technologies (ART), it is equally necessary to appreciate the legal landscape upon which a family will be built. States' laws governing ART vary, and some do not even have statutes that address parentage.

Donor-assisted conception

Some states have laws that specify that a sperm donor (who usually remains anonymous) is not the legal parent of a child conceived through donor insemination. In other states, the law explicitly recognizes the husband of the intended mother as the child's legal father.

As with sperm donation, state laws governing egg donation and embryo donation 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 in which 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. [Search the American Academy of Assisted Reproductive Technology Attorneys directory.]

Carriers and surrogacy

“We felt that adoption gave someone else (the birthmother) the power to decide whether we would be parents or not, and we wanted to have more control than that over our destiny.”
—A PARENT through gestational surrogacy

In gestational surrogacy, the intended parents are generally also the genetic parents. Alternately, the intended parents may use a sperm donor, an egg donor, or a donated embryo.

While some states have laws that establish parentage in gestational surrogacy cases, the majority do not. In many states, courts have accepted pre-birth orders to recognize the intended parents as the sole legal parents. These petitions must include an affidavit from the physician overseeing the procedure, attesting to the identity of the genetic parents. The resulting parentage order will state that the gestational carrier (and her husband, if she is married) is not a legal parent.

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 U.S. passport for their child before they travel to the U.S. as a family. This option, however, is now closed to many types of intended parents. An Indian government regulation passed late in 2012 bars 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, traditional surrogacy involves inseminating a surrogate 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. Second, 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 gained a clear understanding of the legal ramifications of assisted reproduction, chosen the route that feels right for you, and ascertained how your parentage will be recognized, you'll be ready to embark on your family-building--and child-rearing--journey.


PHOTO: Peter J. Wiernicki, Esq., a principal in the Rockville, Maryland, law firm of Joseph, Reiner & Wiernicki, is a member of the American Academy of Assisted Reproductive Technology Attorneys.

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