It seems as if, more and more, the classic story (boy meets girl, boy falls in love with girl, boy and girl get married, have a house full of babies and live happily ever after) needs a little help from science. The Center for Disease Control reports that as of 2002 approximately eight percent (8%) of women of reproductive age attended an infertility related medical appointment at some point. Given that there are approximately sixty two million women of reproductive age in the United States, the number who are suffering from infertility is staggering.
However, as the numbers of individuals with infertility concerns rise, so seemingly do the numbers of treatments available. The real growth in the field of assisted reproductive technology (“ART”) started in the United States in the early 1980’s with In Vitro Fertilization (“IVF”). Since that time, the options available have expanded to include surrogacy, gestational carriers, and a host of medications.
With the growth in ART has come a whole host of legal and ethical questions, which many states have failed to definitely or adequately answer. As a simultaneous student of Bioethics and Law at the University of Pennsylvania, I had the unique experience of exploring how the ethical issues of ART intersect with the scant “law” which exists on the topic. While the law is equipped to deal with the usual circumstance of IVF (using the gametes of a husband and wife and implanting any resultant embryos in the wife), once you move beyond that scenario and use donor eggs or donor sperm, a surrogate or a gestational carrier, the waters become more merky. It is imperative that before anyone dives head first into the process, he or she reviews all of the potential legal ramifications with an attorney.
For example, what will become of the embryos you do not use? Many clinics require couples to make this decision up front, but what if an individual changes his or her mind? What if an egg donor changes her mind and no longer wants her fertilized eggs to be used? What happens if the intended parents separate while a surrogate is pregnant? What if those separated intended parents have no genetic ties to the expected child? Is it more beneficial to use unknown or known donors? Surrogates?
Until recently, it had not been definitively determined whether a sperm donor owed a right of support to any children which resulted from his donation in Pennsylvania.
In another matter, an egg donor, who wanted nothing to do with the ongoing custody dispute between the gestational carrier and the intended parents, was dragged into court, albeit briefly.
All of these scenarios may require an attorney to represent the individuals involved against the other individuals involved in the realms of custody and support, but may also require representation against the medical professionals and organizations involved. Hospitals may be at a loss as to whom they should release a baby, as to who should be listed as parents on a birth certificate and as to what their responsibilities are in terms of releasing or destroying embryos.
The best way to avoid legal problems when undergoing ART, is to plan ahead and be aware of what legal situations may arise and how to best deal with them. Cleaning up after the fact, when there is a child in the middle, is never ideal.