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When you think of the typical situations that lead people to turn to lawyers, you may think of getting into a car accident, executing a will, or getting divorced. Talking about in-vitro fertilization (IVF) cycles and embryo transfers might seem like discussions reserved for your doctor. However, it is just as important to speak about these issues with an ART attorney if you are considering fertility treatment with third-party reproduction (surrogacy or egg, sperm, or embryo donation) to build your family.
With multiple parties, a lot of money, and human emotion involved, it’s essential to make informed choices and memorialize all aspects of a fertility agreement in writing. This provides peace-of-mind and lessens the chances of disagreement in the future. And in some jurisdictions, you are required to have independent legal counsel.
The most important job of any ART attorney is to protect the rights of gestational carriers (or surrogates), egg/sperm donors, and intended parents when they opt to engage in an ART arrangement. These arrangements include the donation of eggs, sperm, or embryos to an individual or couple, or a surrogacy agreement between an intended parent(s) working with a gestational carrier (a woman, not genetically related to the child, who will carry and give birth to the baby). ART attorneys work with single parents, married and unmarried couples, opposite and same-sex couples from the US and around the globe to ensure that their path to parenthood is smooth and legally sound.
Here are some of the many hats that ART attorneys wear:
1. State law experts.
Whether or not surrogacy is a legal practice depends entirely on state law. In the US, some jurisdictions, including California, New Jersey, D.C., Nevada, and Washington, expressly legalize and protect gestational surrogacy in state-wide statutes. In other states, like Colorado, New Mexico, Ohio, and Pennsylvania, few, if any, laws regulating surrogacy exist. In these states, surrogacy arrangements may be allowed, but the process to secure parental rights is not established by statute and may lead to different outcomes depending on the county or courthouse.
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Michigan outlaws surrogacy entirely, while Louisiana has a strict ban on paid surrogacy and limits uncompensated arrangements to heterosexual couples only. Nebraska has different restrictions that create a risky environment for surrogacy. Nebraska’s statute declares that surrogacy contracts will not be enforced by state courts and that the biological father is the sole legal parent of the child, leaving mothers of children born via surrogacy without any legal rights.
These are only some examples of the varying, sometimes conflicting (and in Louisiana’s case, downright discriminatory), approaches that states take towards surrogacy. It goes without saying that ART attorneys must have deep knowledge of the laws in the states where they are licensed. But, because of the wide spectrum of laws state to state, ART attorneys often dedicate time to developing relationships with attorneys in other states who can help advise on inter-state surrogacy arrangements.
Additionally, ART law changes often due to technological innovation and the charged political debate surrounding reproduction. Because of this, attorneys need to be up to speed on legislative efforts to overturn or modify state statutes. Currently, this is particularly relevant in New York, which recently overturned its decades-long ban on surrogacy due to a hard-won struggle by attorneys, LBGTQ+ advocates, medical professionals, and legislators. New York ART attorneys need to become experts in the requirements established by this new law, the Child-Parent Security Act, and the process it lays out for affirming parental rights.
2. Equal rights and infertility advocates.
Some parents who have gone through ART may need to complete a second-parent (or step-parent) adoption to secure their parental rights. This process involves a parent who is not biologically related to the child adopting the child to establish legal parentage. ART attorneys understand which clients this process may be most helpful for, what this process entails in each jurisdiction, and how to use this process to strengthen parental rights. In some states, though not all, this process is long and arduous, requiring home visits, background checks, and extra fees.
The need to legally bolster parental rights disproportionally falls upon same-sex couples who have to work with an egg or sperm donor to have children who are biologically related to one parent. ART attorneys counsel clients regarding the risks presented by a nonbiological parent merely having their name on their child’s birth certificate, which, without an adoption, is not sufficient to create a legal relationship in many states. Guiding LGBTQ+ clients through the realities of an antiquated, unfair system is one of the tasks that turns many ART attorneys into equal rights advocates. ART attorneys are frequently involved in organizations focused on LGBTQ+ family-building and efforts to broaden the legal confines of family.
Because this area of law is intrinsically linked to reproductive science, which is constantly advancing, new legislation regulating ART is introduced on a frequent basis. ART attorneys are often critical in pushing new laws through state legislatures, and, in the process, they work to raise awareness of the challenges of infertility and assisted reproduction. Some ART attorneys are also involved in advocacy regarding the accessibility of reproductive technology and convincing more states to mandate that health insurance providers cover a certain number of IVF cycles.
3. Contract wizards.
Drafting and reviewing contracts are daily projects in the life of an ART attorney. Every provision is reviewed to make sure it adheres to state law and reflects the consensus of all parties. After years of practice, ART attorneys are experts at creating contracts that balance several factors: safeguarding the rights of the parents, protecting the health of the baby, and preserving the autonomy of donors and surrogates.
In these contracts, ART attorneys layout how intended parent(s) will (or will not be) compensating a donor or surrogate, including any reimbursement for lost wages, legal fees, health insurance, and life insurance. A donor agreement will lay out how the parties would like to store or dispose of any genetic material remaining after the transfer. In a gestational carrier agreement, ART attorneys will establish the surrogate’s rights, including her ability to make her own healthcare decisions, like choosing doctors. Tricky issues ART attorneys must address while they draft include the potential of termination of the pregnancy due to a medical risk. Though this only happens in rare instances, it is crucial that ART attorneys work to make sure that both sides are on the same page about such a sensitive issue. Setting expectations regarding the relationship between donors and parents after birth can also be delicate, in addition to addressing a surrogate’s behavior during pregnancy to protect the health of the baby. In some contracts, this gets as granular as what the surrogate can eat, where she can travel, and even who she can sleep with. And due to the COVID-19 pandemic, provisions regarding travel restrictions, changing clinic/hospital rules, and vaccines have become even more important.
4. Fellow infertility survivors and compassionate supporters.
The beauty of this area of law is that many attorneys decided to work in ART law due to their own experiences with reproductive technology. Some ART attorneys have been donors for family members, while quite a few have struggled with infertility, gone through IVF, and worked with gestational carriers to build their families. In addition to serving as legal counsel, ART attorneys are compassionate supporters for clients going through difficult journeys because they have a deep personal connection to the work they do.
Rachel Wexler, Esq. is an attorney at the Trachman Law Center, LLC, a law firm specializing in family formation law, including adoption, artificial reproductive technology (ART), and estate planning. Trachman Law Center represents clients in California, Colorado, New Jersey, New Mexico, and New York. Rachel represents individuals, couples, and families of all backgrounds and sexual orientations in every step of the surrogacy and egg, sperm, and embryo donation process, in addition to providing clients with a full suite of estate planning services customized to clients using reproductive technology.