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Assisted
Reproductive
Technologies
(ART)
Topics Covered on This Page
Artificial Insemination and the Legal Status of
Each Party
Egg Donation and the Legal Status of Each Party
Paying Sperm and Egg Donors
Surrogacy and the Legal Status of Each Party
Paying Surrogates for Their Services
In vitro fertilization and the Legal Status of Each Party
Legal Issues Raised by Cryopreserved Embryos
Availability of Embryos for Research
What Happens to Embryos In a Divorce
Legal Issues Around Posthumous Reproduction
By
Susan B. Apel
Vermont Law School
The law regarding assisted
reproductive technologies (ART) is in the earliest stage of development.
In some states there is some, although little, case law. Some state
legislatures have passed laws covering some aspects of ART; many states
have virtually no law on the subject. Vermont has little if any law on
any aspect of ART. Therefore the information contained in this section
is a general overview of the law throughout the United States. This
information is not to be construed as legal advice and is provided for
purposes of information only.
What is artificial
insemination and what is the resulting legal status of each of the
parties?
Artificial insemination occurs when the sperm of a known or unknown
donor is introduced into the reproductive tract of a female for the
purposes of conception. Sperm may be fresh or frozen, but is usually
frozen in the case of anonymous donors. A sperm donor is generally held
NOT to be the father of any resulting children, with no parental rights
or responsibilities (such as child support) toward the child. It is
important, however, for the insemination to be done through a medical
professional, not simply between the parties. If the latter, it is
harder for the sperm donor to retain his status as that of a donor only,
and not as the legal father of the child, even if the parties agree or
contract otherwise. If the woman is married at the time of the
insemination procedure, her husband is deemed to be the legal father of
the child.
What is egg donation and
what is the resulting legal status of each of the parties?
In egg donation, a female egg donor receives medical treatment to
stimulate her ovaries to produce multiple eggs, which are then harvested
for use. These eggs are used in in-vitro fertilization procedures, often
with the sperm of the intending father. Egg donors, like sperm donors,
are generally held NOT to be the legal mother of any resulting
children.
Can sperm and egg donors be
paid for their donations?
Paying sperm donors has been the practice over the last several
decades and continues, although amounts per donation are minimal.
Because of the risk and complexity of the medical procedures regarding
egg donation, payments have tended to be higher than that for sperm
donation, sometimes in the thousands of dollars. Professional
organizations like the American Society of Reproductive Medicine made
recommendations limiting the amount of money that should be paid to
gamete donors, particularly egg donors. Advertisements for “designer”
gametes, i.e, gametes from persons at Ivy League schools, or persons
with high IQ scores or some other highly-valued attribute can be found
on the Internet and in many national and college newspapers. These
“designer” gametes are offered at inflated prices, often starting at
$50,000 or more.
What is surrogacy and what
is the resulting legal status of the parties?
There are two kinds of surrogacy: traditional and gestational. In a
tradition surrogacy, the surrogate mother contributes her own ovum,
either naturally through artificial insemination with intending father’s
sperm, or through in vitro fertilization. She thus has a genetic
connection to the child. A traditional surrogate has a good chance of
being declared the legal mother of any resulting child should there be a
disagreement between the parties during the pregnancy or after the
child’s birth. As such, she may be awarded custodial or visitation
rights with the child.
Some states give traditional
surrogates the right to change their minds about their surrogate-only
status following the birth of the child. New Hampshire, for example,
allows any surrogate to change her mind for a period of time following
the child’s birth, and to retain legal rights to the child. In contrast
to traditional surrogacy, a gestational surrogate is a woman who carries
the child to term but who has no genetic tie to the child because the
intending mother’s (or a separate donor’s) egg had been used. A
gestational surrogate is less likely to be able to claim successfully
that she is the child’s legal mother.
Can surrogates be paid for
their services?
In most states surrogates can be reimbursed for medical and related
expenses, needed supplies related to the pregnancy, and loss of wages if
applicable. If payment is excessive, the arrangement may run afoul of
prohibitions against the selling of children.
What is in vitro
fertilization and what is the resulting legal status of each of the
parties?
In vitro fertilization is simply an outside-the-womb method of
conception. Sperm and egg are placed together in culture and
fertilization is allowed to occur. A special kind of in-vitro, known as
ICSI, can be used in which a medical professional injects a single sperm
into an egg for the purpose of fertilization. The fertilized egg is then
planted into the uterus of the mother. In either case, the egg and sperm
could be those of the intending couple or one or both of the gametes
could be donated. Regardless of the source of the gametes, the couple
who caused the process to occur -- often referred to as “the intending
parents” -– are most often deemed to be the legal mother and father.
What are cryopreserved
(frozen) embryos and what legal issues does this process raise?
The in-vitro fertilization process results in excess embryos, i.e,
more embryos than can be used in a single cycle for conception. These
excess embryos are frozen for further use. Embryos can remain frozen for
many years and perhaps indefinitely. Frozen embryos are stored in
clinics and hospitals for use in additional fertility cycles, either
because the first cycles were not successful, or to accomplish
subsequent pregnancies. Frozen embryos can also be donated to another
couple or woman for implantation.
Are embryos available for
research?
Yes. The individuals to whom the embryos belong may donate them for
research. These frozen embryos are in fact a prime source for embryonic
stem cell research. Under current law, they may be used only in private
research on stem cells, i.e., non-federally funded research.
What happens to the embryos
if a couple divorces?
Prior to beginning fertility treatment, couples ought to enter into
contracts that deal with what should happen to embryos in the event of
the couple’s divorce. Despite these contractual provisions, one or both
of the parties may change their minds during the divorce. One party may
wish to have the embryos for the purpose of procreation and the other
seeks to avoid becoming a parent under these circumstances. There have
been only a handful of states in which divorce courts have had to decide
what will happen with the these embryos. At least one state has decided
to uphold the parties’ agreement. The other states have decided that
contracts such as these are against public policy, and have sided with
the party who does not want to procreate.
What is posthumous
reproduction and what legal issues does it raise?
Posthumous reproduction occurs when the gamete of one party is used
after his or her death to procreate. This can happen in a variety of
ways. While still alive and capable of consent, parties can choose to
have their gametes frozen and stored for a later use. Sperm can be
frozen easily and for lengthy periods of time; freezing eggs is a much
newer phenomenon and is much more difficult to do successfully. This
procedure is done most often by persons who may be about to undergo
chemotherapy or other medical treatment that could cause sterility, and
to a lesser extent, by some armed services members prior to their
leaving to go to war. Should the individual then die, the gametes are
available, usually to a spouse or partner, for use in ART procedures.
Another form of posthumous
reproduction is more controversial, and involves the harvesting of sperm
from an already deceased man, usually at the request of a partner or
spouse, for the purpose of using the sperm to procreate. Some hospitals
will perform this procedure, which must be done within a short time
after death; medical literature suggests 72 hours. Many hospitals refuse
to do this, citing the inability of the deceased to consent to the
procedure and to the subsequent reproduction. There have been some cases
in which someone other than a spouse, e.g., parents of the deceased,
have made the request.
Children who
are born as a result of these forms of posthumous reproduction must
sometimes fight to be recognized as the legitimate offspring of the
deceased for purposes of government benefits, life insurance, and estate
purposes.
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Home Page
About the
Author
Susan B. Apel
is a professor of
law at Vermont Law School, where she has taught since 1982. She
specializes in family law and gender issues, and is also the director of
Vermont Law School's nationally recognized General Practice Program. She
holds a position as clinical professor at the Dartmouth Medical School
in Hanover, NH, where she teaches a course in law and medicine, with a
concentration on artificial reproductive technologies. Among her
publications are "Cryopreserved Embryos: A Response to Forced
Parenthood and the Role of Intent," 39 Fam. L. Q. 663 (2005), "Privacy
in Genetic Testing: Why Women Are Different," 11. So. Calif.
Interdisciplinary L. J. (2001), "Genetic Testing: Speaking Up for
Women's Privacy Interests," J. Gender-Specific Med., Vol 6, No. 2, 1
(2003) and "Disposition of Frozen Embryos: Are Contracts the
Solution?", Vt. Bar. J, March 2001. Her article, "Access to
Reproductive Technologies" will be published by the Michigan State Law
Review. Professor Apel received her B.A. in 1974 from the Pennsylvania
State University and her J.D. in 1977 from Northeastern University
School of Law.
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