Assisted Reproductive Technology (ART) has been a game changer for how both individuals and couples build their families. Technologies like in vitro fertilization (IVF), egg and sperm donation, and surrogacy offer hope to those facing infertility, genetic concerns, or other reproductive challenges. While the technology has moved forward quickly, the law has been slower to respond: The legal landscape surrounding ART remains complex, and making things more frustrating, regulations are inconsistent across jurisdictions.
One of the most important legal issues surrounding ART involves parental rights and responsibilities. Before the advent of these innovations, the identity of a parentage was determined by biology or marital status. With ART, the biological, gestational, and intended parents can all be different people. In some unfortunate cases, this has raised questions about who the legal parent is. Many jurisdictions require intended parents to apply for and get a court order or to adopt the child so they can officially be recognized as the legal parents. This has proven to be especially important in cases involving surrogacy or donor gametes.
Surrogacy arrangements have introduced a host of well-publicized legal considerations. Surrogates can be either altruistic (unpaid) or commercial (compensated). Some countries and U.S. states allow and regulate surrogacy, while others have outright prohibited it. Legal disputes where either the surrogate changes her mind about letting go of the child she has carried or the intended parents back out are heartbreaking and legally challenging. To prevent against these risks, having a well-crafted surrogacy agreement in place is essential. This document should be detailed, legally reviewed, and signed before conception. Still, not all jurisdictions recognize these agreements as legally binding.
Similarly, sperm and egg donations have raised questions about anonymity, parental rights, and donor responsibilities. Most donors relinquish their legal rights to the resulting child, but legal protections must be in place to prevent future claims of custody or child support. Some countries are beginning to require donor-conceived children to have access to information about their donors once they are adults, and this can impact the privacy expectations and willingness of donors.
Cross-border ART arrangements also raise issues, as many prospective parents have sought ART services in countries with more favorable laws or lower costs. These international arrangements can lead to even more legal uncertainty, especially when it comes to questions about the child’s citizenship, immigration status, and the recognition of who the legal parents are upon return to the home country.
ART is a scientific breakthrough that provides amazing alternative paths to parenthood, but it also raises complex legal challenges. Intended parents, donors, and surrogates all need legal guidance to make sure that they and the intended child are all protected. For information on how we can help, contact us today.