Attorneys need to have a working knowledge of reproductive medicine and understand applications of the law.
By Leslie Schreiber, Attorney
The emerging arena of Assisted Reproductive Technology law (a/k/a ART law) encompasses the creation or extension of a family through non-traditional means; in other words, the utilization of methodology other than sexual intercourse to cause a live birth. Scientific advances in fertility and other related modalities have led to a plethora of legal issues. Attorneys practicing in the area will need to have a working knowledge of reproductive medicine in order to better understand the application of the law. This article will provide a general overview of ART law and identify some “hot topic” areas.
It is essential to bear in mind that to date there is no federal regulation governing this arena in the US. Thus, each state is left to its own devices to carve out clear statutes governing ART procedures and rules used to secure parental rights. ART law also crosses state and international borders since patients utilizing the technology to create family might travel beyond their borders to use doctors or third parties to assist them on their quest. As many state legislatures are reluctant to address these issues, local courts are left to decide complicated matters on a case-by-case basis, thereby creating a patchwork of case law. Internationally, a similar patchwork of laws exist country-by-country.
It is clear that the law has not caught up with the science or medical advances and that as fertility doctors advance their techniques and options, so the law will advance forward. In an effort to provide some guidelines, however, several legal associations have prepared proposals in the hopes that they would be enacted by the states. For example, the American Bar Association Section of Family Law Committee on Reproductive and Genetic Technology proposed a Model Act in 2008. The stated purpose of the Act is “to give assisted reproductive technology (ART) patients, participants, parents, providers, and the resulting children and their siblings clear legal rights, obligations and protections.” Additionally, the National Conference of Commissioners on Uniform State Laws have proposed amendments to the Uniform Parentage Act (UPA) intending to lend clarity to some of the parentage issues as they arise from the implementation of reproductive medicine.
The use of assisted reproduction to cause a pregnancy encompasses many modalities. It can include, but is not limited to, intrauterine insemination, gamete donation, such as egg or sperm, embryo donation, in vitro fertilization, sperm injection and surrogacy. Parties utilizing such modalities might include a single male or female who desire children without a partner; a same sex couple; and/or infertile couples. The reasons can be social, lacking a partner; anatomic, the loss of a reproductive organ; physiologic, an inability for a reproductive organ to function appropriately; or political, traveling to a friendly jurisdiction for medical intervention. The list expands as the science evolves.
Currently, there are several areas that comprise much of the work for an ART lawyer. They include (1) collaborative reproduction (2) agency regulation (3) cross-border travel for ART (4) parentage orders and (5) insurance coverage issues. We will take a brief look at each of these arenas:
This is a broad category where persons who do not intend to be the parent will participate in producing the pregnancy. This scenario is also termed third party reproduction. The scenario arises when a person donates gametes (egg or sperm) or embryos to an intended parent, and which may or may not include a surrogacy arrangement. A surrogate (noun) or surrogacy (verb) comes into play when a woman carries and delivers a child for a person or couple who are themselves called intended parents or IP’s.
There are two kinds of surrogates. A woman who is a “traditional” surrogate donates the egg and carries the pregnancy. A “gestational” surrogate gestates the pregnancy but has no genetic relationship to the baby she carries as the egg is from another source. In all cases, when a surrogate is relied upon, the surrogate is not intending to parent the child.
A lawyer’s goal in third party reproduction is to draft clearly defined contracts so as to define the roles of and between all parties. When cross-border surrogacy arrangements are being done, the lawyer must also balance the drafting exercise to not engage in the unauthorized practice of law in a state or country where they hold no license nor are admitted pro hac vice. Additionally, the lawyer must be cognizant of conflict-of-interest risks as several parties are involved who may have differing roles with shifting legal responsibilities.
There are countless egg and sperm donation agencies in the US and abroad who may or may not facilitate collaborative arrangements by matching intended parents with donors and/or gestational carriers. Although engaged in the business of helping intended parents manifest their dreams, these agencies are often not well versed in the legal aspects of securing parental rights and can foster conflicts of interest because of multiple parties to the arrangements. As there have been disreputable agencies who embezzled or misappropriated client funds, regulation of these businesses in several states, like California, is underway. Attorneys should look closely at the agencies they are working with to ensure transactions are at arm’s length and client funds are secured in separate bonded and insured trust accounts.
Cross Border Collaborative Agreements and Immigration and Citizenship
United States citizens who travel either across state or internationally for third party reproduction or who forum shop for more liberal countries or cost-effective ART procedures run the risk of entering into complex legal territory. Issues involving everything from immigration to citizenship, insurance and medical fees come into play. Similar issues arise for foreign intended parents who enter the US to utilize the medical community and services of domestic gestational carriers and gamete donors or who intend to give birth in the US. It is advisable in most cases to utilize the services of an immigration attorney who can assist intended parents in obtaining the required travel documents to ensure a safe return to their home country with baby. Additionally, the attorney must be well versed in the local laws for obtaining parental rights to the child when back in their home country, if necessary.
Court intervention through a pre-birth or post-birth order may be necessary to establish parentage in surrogacy arrangements. The lawyer should consider whether there is a statute governing parentage in the state where the baby is born. If there is no governing statute, parentage orders may be established through case law. Lawyers should understand the state’s paternity statutes, residency requirements and adoption laws since they all have an impact on whether or not legal parentage of a child born via third party reproduction will be permitted.
Insurance Coverage Issues
Knowing which insurance companies issue policies covering surrogacy or IVF for infertility is suggested. Insurance coverage varies state by state so understanding this interplay might be important to your legal representation. Also, examine the policy contract language since it is all a matter of interpretation. Advise your client to hire an insurance professional to help navigate this area, if necessary.
Charles P. Kindregan, Jr. and Maureen McBrien, Assisted Reproductive Technology, 2nd Ed. , ABA Section of Family Law publication
Center for Disease Control – www.cdc.gov/art
ICMART- www.icmartivf.org – International Committee Monitoring Assisted Reproductive Technologies
Resolve – www.resolve.org – The National Infertility Association
ASRM – www.asrm.org – The American Society for Reproductive Medicine
American Bar Association Family Law Section Committee on Genetics and Reproductive Technologies
Leslie Schreiber is an attorney in private practice and devotes much of her time to the ART arena. She is an active member of the American Bar Association Committee on Genetics and Reproductive Technologies. She is licensed in Florida, New York and Washington, D.C. Her website is www.leslieschreiber.com.