By Eric Harvey, J.D. | Legally reviewed by Aviana Cooper, Esq. | Last reviewed July 21, 2023
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Modern medicine and science have given hope to those who could not conceive children. New opportunities for conceiving children have emerged through artificial insemination, in vitro fertilization, and embryo transplantation.
These new techniques have also created legal questions and disputes about the child's status and the rights and designation of the parents. The following is an overview of artificial conception's science and legal implications.
People use assisted reproduction for various reasons, where traditional reproduction is not working for conception. A variety of laws affect assisted reproduction. Assisted reproduction can involve traditional surrogacy or non-traditional varieties of surrogacy where gestational surrogates or gestational carriers are used.
Reproductive medicine, via assisted reproduction, gives options to people who cannot have children on their own. People wishing to have children but who use assisted reproduction will opt to do so for various reasons. Struggles with infertility are a common example. Or perhaps someone has had a hysterectomy and cannot carry a fetus on their own.
Surrogacy arrangements are a good way to handle these situations. But it is important that you consult with an attorney to help prevent disputes over parentage after the birth of the child.
Gestational surrogacies are often used as an alternative. In these processes, many of the procedures involved happen at fertility clinics. In cases where prospective parents use gestational surrogacies, all parties must agree to a well-drafted surrogacy agreement.
The parties include a gestational mother, a gestational father, and the intended parents. Parties can also include the surrogate mother, as well as the intended parents, too. After the surrogacy, The intended mother, father, and intended parents will take on legal and physical custody of the resulting child under most circumstances.
Under many of these circumstances, parents must use either a sperm donor or an egg donor. Egg donation typically occurs at fertility clinics. Donated eggs may be purchased. But sometimes, family members or friends donate eggs. A fertility clinic can also provide donated sperm. But it is, of course, required that the egg and sperm donors not be related to each other.
Sperm donation may occur at fertility clinics, as well. It is also possible that these processes involve embryo transfers. In any assisted reproduction process, procreation happens by a variety of means. But keep in mind that it's important to consult an attorney to prevent possible disputes over the parentage of the resulting child. It's important to have a well-drafted surrogacy contract.
Artificial insemination is a technique that can help treat certain kinds of infertility in both men and women. In this procedure, a clinician inserts sperm directly into a woman's uterus. Ideally, it makes pregnancy possible where it wasn't before.
But there are a few factors that can reduce your chance of successful artificial insemination, including:
Artificial insemination raises legal concerns. Most states' laws provide that a child born from artificial insemination using the husband's sperm is the husband's legal child.
Most states have "presumption" laws, which presume that a child born to a married woman is the child of her husband, and the designation of the husband as the father in a case involving artificial insemination derives from those laws.
When a child is born after artificial conception using the sperm of a third-party donor, the law is less clear. Some states stipulate that the child is the legal child of the mother and her husband. But others leave open the possibility that the child could be illegitimate.
The process of in vitro fertilization (IVF) and egg transplantation involves the fertilization of the egg outside the womb. This procedure has caused several questions about the rights of the parties and remedies available to them if wrongful acts occur related to the procedure. It is one of the more commonly used processes within assisted reproductive technology.
Many legal issues can arise when the egg donor is not also the woman who will be the biological mother. In many IVF cases, couples use their own genetic material and thus avoid these legal issues.
When another woman donates the egg, the birth mother is the legitimate mother of the child in the eyes of the law. There are special concerns for same-sex couples when it comes to establishing parental rights for children born as a result of IVF. Many issues may arise around the procedure of in vitro fertilization. This is especially true if the egg is from a donor who will not be the child's parent, including:
It is important to recognize that laws across the United States relating to IVF are fairly inconsistent. Before considering IVF, you may consult an attorney to determine what relevant state statutes or regulations are applicable in your jurisdiction.
The laws surrounding reproductive rights are constantly changing. Artificial insemination and IVF laws vary by state. If you need more information about your state's laws or are concerned about artificial conception, an experienced family lawyer can help.
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