Assisted Reproductive Technology

Family Building Alternatives: Assisted Reproductive Technology

Family formation occurs in a variety of ways through reproductive technology (ART). Sometimes, families need the assistance of gamete (sperm or egg) donors to conceive a pregnancy. Another option is to seek out embryos donated by persons who have completed their families, but have extra embryos. Or, hopeful parents-to-be might be working with a surrogate ( a woman who carries a pregnancy for someone else, and does not intend to be the parent of the child). Sperm donation, as a recognized medical treatment for male infertility, has been practiced for well over 100 years. The newer medical techniques, and the use of donated sperm for single women who wish to be parents, are relatively new developments. Egg donation and gestational surrogacy became medical possibilities shortly after the emergence of in-vitro fertilization IIVF).

Family building treatments in ART may be categorized as follows:
Sperm donation: to treat male infertility, to avoid genetic disorders carried by the male partner, or for single women. Sperm may be obtained through a sperm bank, or by a known donor. Fertilization may be accomplished through insemination of the woman, or via IVF.
Egg Donation: for ovarian insufficiency, premature ovarian failure, age related problems with egg or embryo development, surgical or congenital absence of the ovaries, and a number of other medical issues, including the avoidance of genetic disorders carried by the female partner. The fertilization of the egg takes place outside the body, through IVF.
Embryo Donation: embryos created through IVF are donated by the progenitors to another person or couple for reproductive use, and the recipients of those embryos become the parents of the child.

Surrogacy: there are two types of surrogacy. The first is traditional surrogacy which occurs when a woman, who does not intend to be the parent, is inseminated with the sperm of the intended father and upon the birth, agrees that the father (and his spouse, if applicable) will be the custodial parent and, through whatever process is available in the pertinent state, the surrogate is relieved of all parental rights and responsibilities. In most traditional surrogacy situations, the termination of the surrogate’s rights occurs post-birth, which can legally be quite problematic.

The second is gestational surrogacy, where a woman, who does not intend to be a parent, receives the IVF-created embryo(s) of the intended parent(s), gestates the pregnancy and agrees that the intended parent(s) will be the legal parent(s) of the child. In many jurisdictions, the parental determination in gestational surrogacy matters can be made pre-birth, which is preferable. 

All of these options are legally and emotionally complicated. Best practices require written agreements, even if the parties are anonymous to each other (as they are in many egg donation cases). Each party (or each set of parties) should have experienced legal counsel representing their interests and protecting their respective rights. A mental health consultation is also an important part of the arrangements. Fertility centers generally recommend, and might require, these steps before completing medical treatment in ART where donors and surrogates are involved. Any attorney who acts as counsel to parties in an ART case should have the qualifications and experience to offer solid, informed advice and counsel.  For more information go to the American Academy of Assisted Reproductive Technology Academy website.