Guest post by Rachel Wexler, Partner Attorney
When you’re thinking of building your family through assisted reproductive technology (ART), the best way to make sure you understand the risks involved, potential legal issues, and most effective methods to protect your rights is to work with an ART attorney.
What is an ART attorney, you may ask? ART attorneys work with surrogates, intended parents, and egg/sperm/embryo donors to draft agreements that protect the interests of each party. We also guide our clients through the court process of recognizing parental rights, when needed. In addition, many of us help our clients establish financially and legally stable futures for the families they’ve worked so hard to grow through estate planning.
Here are 5 reasons why an attorney is more important than ever for your fertility journey:
- Current ART law varies from state to state and country to country.
If ART law was, well, art (see what we did there?) it would probably look like a mixed-media collage. In other words, it’s all over the place.
Some jurisdictions, including California, D.C., New Jersey, and most New England states, are very friendly towards many forms of ART, including surrogacy. These states expressly permit paid gestational surrogacy arrangements (where the woman giving birth, the “gestational carrier” or “surrogate,” is not biologically related to the child and is compensated by the intended parents). The best reason to work with an ART attorney in these states? The law may require you to do so. Most states that have legalized surrogacy through legislation require each party to have their own attorney.
An ART attorney can also help you understand your options if you want to work with a surrogate and you’re from Michigan, Nebraska, or Louisiana. These states all have current laws on the books banning the practice of paid surrogacy.
In states like Colorado, New Mexico, Ohio, and Pennsylvania, few, if any laws regulating ART exist. Often donor and surrogacy arrangements are allowed in these states because no statutes explicitly prohibit them. In these states, judges look to previous cases, if any, or general state statutes on parentage to determine outcomes. A judge in one county may interpret ART cases differently than a judge in a neighboring county. An experienced ART practitioner will have a deep understanding of the local landscape and can counsel you about how to continue your fertility journey without exposing your family to unnecessary risk.
Different countries also have vastly different approaches to ART. If you are an intended parent looking to travel to the US as a part of your family building journey, working with a seasoned ART attorney is crucial. Your attorney can work with counsel from your home country and assist you in preparing the required documentation to ensure that you are recognized as legal parents and that your baby’s citizenship is acknowledged.
- ART law changes often due to technological innovation and the charged political debate about reproduction.
New legislation regulating ART is introduced on a frequent basis because this area of law is intrinsically connected to reproductive science, which is constantly advancing. Additionally, ART law sits at the center of some of the most important political issues of our time—namely, reproductive choice, whether life begins at conception, and the acceptance of singles and same-sex couples as parents. The changes in ART law are often responsive to shifts in the political consciousness.
Lawmakers and courts differ in their acknowledgment of new methods to create families. Some states are moving in the direction of embracing ART. In April 2020, the New York legislature moved to overturn its 30-year-old ban on paid surrogacy. On the other hand, Louisiana, Mississippi, and South Carolina have all introduced laws seeking to establish the “personhood” of embryos, which could potentially limit the availability of in-vitro fertilization (IVF).
States grapple with other relevant issues too, like whether to mandate that health insurance policies cover a certain number of IVF cycles and regulating how frozen sperm, eggs, and embryos are stored. On your family building journey, you want to be informed by the most up-to-date understanding of laws affecting ART in your jurisdiction. The best way to do this is to work with an ART attorney, who already has their fingers on the pulse of these issues.
- An ART agreement must be comprehensive and legally enforceable to protect your rights.
Jurisdictions have different rules for what must be included in a donation or surrogacy agreement. Working with a local ART attorney to draft and review your agreement is the best way to ensure that it meets legal requirements. It is also the most effective way to make sure that your rights, and those of your family, are legally protected. An experienced attorney will know how to customize the agreement to reflect your particular circumstances, mitigate risks, and address potentially difficult topics, such as:
- Responsibilities of each party in case of an unforeseen medical emergency
- Designation of parental rights and responsibilities
- Disposition of embryos
- Expectation of future contact between the parents and surrogate or donor
- How a surrogate or donor is reimbursed for expenses and/or compensated
- Whether the parties can discuss the arrangement publicly, including posting on social media
- The last thing a new parent wants is to learn that their parental rights are not secure.
States have different laws governing how to determine parental rights. The most straightforward process involves filing a parentage petition with the court. A judge will decide whether the petition conforms with legal requirements, waive the parental rights of surrogates/donors, and recognize the rights of the intended parents.
Of course, this process varies by state and courthouse. In your fertility journey, you may need to know which judges will grant an order of parentage early in the pregnancy or which counties will allow orders to be granted without requiring you to attend a hearing. An ART attorney can help you understand the common practices in your jurisdiction.
Experienced practitioners will also be able to advise intended parents who live in states where parentage proceedings are not available. Parents in these states should work with attorneys to learn about the most appropriate adoption process for their families.
Of all things in life to take seriously, the process which determines your parental rights is at the top of the list. And if you are a surrogate or donor, this process is just as critical for you. Five years from now, do you want to learn that you owe years of unpaid child support for a child you assumed someone else was legally responsible for? The importance of working with an attorney to help secure parental rights cannot be emphasized enough.
- Unfortunately, family formation is still more complicated and cumbersome for non-biological parents and LGBTQ+ families.
Although same-sex marriage is legal across the country, same-sex parents are still treated differently than opposite-sex parents by our courts and legislators. Many same-sex parents who used ART are not biologically related to their children because they have to use an egg or sperm donor (of course, there are plenty of heterosexual couples who use donors too). Depending on the jurisdiction, a non-biological parent may not be listed on a birth certificate (even if they are married to the biological parent) and must depend on the whim of a judge to grant a parentage order.
To make things more difficult, some counties do not issue parentage orders to non-biological parents, forcing them to travel to friendlier states to establish rights or adopt their own children. Practices vary so much that parents may not realize adoption or other steps to secure parentage are necessary. Additionally, in the event of divorce or dissolution of a relationship, a non-biological parent who has not secured their parental status may, in some counties, be considered a legal stranger to their child with no standing to seek a custody arrangement.
These are worst case scenarios, but we’ve seen them happen in real life. Protect yourself from these risks by working with an ART attorney who understands the legal and administrative challenges non-biological and LGBTQ+ parents may face in your area.
Long story short: Having the family of your dreams is possible! Just be sure to work with an experienced ART attorney licensed in your jurisdiction to safeguard your rights, prevent avoidable pitfalls, and counsel you regarding all of your options.
Think you need the assistance of an ART attorney? Call the Trachman Law Center, LLC for a free consultation (303-243-5014) or click here to visit our website. Interested in learning more about assisted reproductive technology? Tune in to our podcast, I Want to Put A Baby in You.