Assisted Reproductive Technology

As medical technology advances more viable opportunities for Assisted Reproductive Technology (ART) treatments and procedures have become available to families. Although the sperm donation process has been available for years, in the last decade, donation of ova and embryo donation have also become available and success rates at some fertility clinics are quite high. It is increasingly common today to have a couple conceive a child by using donor egg or donor sperm which are united in vitro to form an embryo that is then transferred to the intended mother’s uterus such that a pregnancy is achieved. The intended mother then gives birth to a child to whom she may or may not be biologically related to and she intends to parent that child. Also, the same basic medical processes can be used to achieve a pregnancy in a woman acting as a gestational surrogate such that she gives birth to a child to whom she is not biologically related for the benefit of the intended parents. People build families in different ways. Individuals wishing to build a family through ART (assisted reproductive technology) will encounter a number of legal, medical and social issues in the process of building their family.

Assisted Reproductive Technology services are growing in demand because they offer individuals, including lesbian and gay individuals (LGBT), seeking to achieve parenthood additional choices to help achieve that dream. Hawthorne Merrill Law works with a diverse clientele including non-traditional and traditional families. Cases are evaluated on an individual basis free of arbitrary requirements.

Along with legal counseling unique to each situation, Jane provides the following services:

  • Educate and advise parties on rights and obligations under agreements or contracts
  • Review any and all existing documents and/or contracts
  • Draft new documents and/or contracts
  • Negotiate the terms of documents and/or contracts
  • Assist surrogates, individuals and couples with referrals to agencies, physicians, psychologist, genetic counselors, estate planner, insurance agents, and accountants
  • Facilitate communication and correspondence between parties, including intended parents, surrogates, donors, agencies, and physicians
  • Assist with coordinating administrative functions
  • Provide legal service necessary for establishing legal rights to the child or children

The information below provides more about assisted reproductive technology options with which Hawthorne Merrill Law can assist.

Egg and Sperm Donor Legal Services

Egg and sperm donation enables Intended Parents experiencing infertility or other medical problems to build their family. More than forty states regulate the donation of sperm, but significantly fewer states have laws regarding egg donation and they vary greatly in scope. If you are interested in using a known donor egg or sperm, it is critical that you have a detailed contract addressing the rights, responsibilities and relationship of each party, parental rights or obligations and the relinquishment of such rights as related to any resulting embryos or children, the donation procedures, medical risk, confidentiality, and the timing and amount of any compensation.

Egg donation has primarily been an option used by women with diminished ovarian reserve or women over 40 years old with reduced fertility and a poorer chance of success after IVF. An egg donor is defined as a woman normally under the age of 35 who donates healthy eggs using In-Vitro Fertilization (IVF) process. A thorough evaluation or screening of each potential egg donor is critically important, whether the donor is anonymous or known to the recipient. This screening is designed to protect all parties involved (the donor, the recipient and the resulting child or children).

If you are considering sperm or egg donation, contact Hawthorne Merrill Law to discuss your options before entering into a contract.

Embryo Donations and Adoption

Individuals that have undergone IVF will sometimes have unused pre-embryos that will be cryopreserved for future use or because the Intended Parents do not wish to destroy them. These embryos may be donated to (or less frequently, adopted by) an Intended Parent. Although state laws vary, the consensus among courts is that embryos generally fall into an “interim” classification due to their potential to develop into human life. Therefore, those that maintain surplus cryopreserved embryos should address the access, control and disposition those embryos in an agreement and a Will in the event of a divorce or death, including death or divorce during IVF treatment, specifically addressing permissible uses, if any, of the embryos after a divorce or death. Other issues to also consider are the time period for use, whether an after born child inherits, and other parameters of consent.

If you are considering embryo donation or adoption, contact Hawthorne Merrill Law to discuss your options before entering into a contract.

Cryopreserved Embryo Agreements

Individuals that have undergone IVF will sometimes have unused pre-embryos that will be cryopreserved for future use or because the Intended Parents do not wish to destroy them. Those that maintain surplus cryopreserved embryos should address the access, control and disposition those embryos in an agreement and a Will in the event of a divorce or death, including death or divorce during IVF treatment, specifically addressing permissible uses, if any, of the embryos after a divorce or death. Other issues to also consider are the time period for use, whether an after born child inherits, and other parameters of consent.

If you are considering cryopreserved embryos, contact Hawthorne Merrill Law to discuss your options before entering into a contract.

Traditional Surrogacy

Traditional surrogacy is typically accomplished via intrauterine insemination (IUI) with the sperm of a known or unknown donor. A physician with a fertility clinic will introduce a donor’s or the intended father’s sperm into the surrogate’s reproductive organs with the intent of producing a pregnancy using the surrogate’s egg. Therefore, the surrogate has a genetic connection to the resulting child. If you are considering entering into a traditional surrogacy arrangement, whether it is with a recruited surrogate or family member, there are many legal considerations that should be discussed and memorialized in contract.

Traditional surrogacy arrangements should detail all necessary consents and clearly identify the parental rights and obligations of each party to the arrangement. In some traditional surrogacy is illegal, while in other states, statutes and case law are silent.

A surrogacy agreement involves much more than just drafting a document. Contracts involving gestational surrogacy, egg donation, and other reproductive technologies involve issues on the cutting edge of medicine and the law. The contracts are highly detailed and updated to apply the changing legal landscape of this evolving way to build a family. Each legal agreement is carefully drafted to the unique circumstances of your family.

Surrogacy is largely unregulated and contracts typically raise numerous weighty legal issues, including:

  • Confidentiality
  • Consent to medical and psychological assessment of Gestational Carrier
  • Rights and responsibilities of the parties
  • The number of embryo transfers or artificial insemination attempts
  • Storing, donating or disposing of frozen embryos
  • Views on selective reduction, abortion and medical complications
  • The amount and purpose of life insurance coverage to be obtained by the Gestational Carrier
  • What fees and costs will be reimbursed by the Intended Parents
  • Payments for birthing and special circumstances such as a C-section
  • Management of escrowed funds
  • Circumstances in which the contract may be terminated
  • The disposition of unused embryos upon termination of the agreement, divorce or death

Those considering surrogacy should ask themselves some questions before beginning the process of locating and using a surrogate. Some questions to ask follow:

  • Are you ready to move on from current infertility treatments?
  • How do you feel about someone else carrying your child?
  • Are both partners ready to do this?
  • How will you explain the pregnancy and birth to others and eventually to your
  • child?

It is a requirement of some infertility clinics that Intended Parents and the Surrogate Mother speak to a mental health professional specializing in infertility about these and other concerns. A mental health screening can assess whether all parties have considered the matters. It will also help to determine if the Intended Parents and the Surrogate Mother are compatible.

A surrogacy agreement involves much more than just drafting a document. Contracts involving gestational surrogacy, egg donation, and other reproductive technologies involve issues on the cutting edge of medicine and the law. The contracts are highly detailed and updated to apply the changing legal landscape of this evolving way to build a family. Each legal agreement is carefully drafted to the unique circumstances of your family.

If you are considering surrogacy, contact Hawthorne Merrill Law to discuss your options before entering into any surrogacy contract.

Gestational Surrogacy

Gestational surrogacy is a more recent development and is sometimes considered a safer alternative to Traditional Surrogacy from a legal perspective because the gestational carrier has no genetic relationship with any resulting child. Gestational surrogacy occurs where a woman agrees to both be implanted with fertilized embryos via In Vitro Fertilization (IVF) and to carry a child (who is genetically unrelated to her) for the Intended Parents. The Intended Parents may or may not have a genetic connection to the child.

Gestational surrogates can be when the Intended Mother has viable eggs, but cannot carry a child to term. In other instances, when the Intended Parents cannot produce the necessary egg or sperm, then donor egg, sperm or embryos created from donor gametes are used. To transfer an embryo via IVF, the surrogate will follow a protocol involving hormone injections established by a fertility clinic. Most states, including South Carolina, have yet to enact laws establishing parentage in gestational carrier cases, though in some states the Intended Parents are able to obtain a pre-birth order so that their names go directly on the birth certificate. In other states the birth certificate is amended after the child is born.

Surrogacy is largely unregulated and contracts typically raise numerous weighty legal issues, including:

  • Confidentiality
  • Consent to medical and psychological assessment of Gestational Carrier
  • Rights and responsibilities of the parties
  • The number of embryo transfers or artificial insemination attempts
  • Storing, donating or disposing of frozen embryos
  • Views on selective reduction, abortion and medical complications
  • The amount and purpose of life insurance coverage to be obtained by the Gestational Carrier
  • What fees and costs will be reimbursed by the Intended Parents
  • Payments for birthing and special circumstances such as a C-section
  • Management of escrowed funds
  • Circumstances in which the contract may be terminated
  • The disposition of unused embryos upon termination of the agreement, divorce or death

Those considering surrogacy should ask themselves some questions before beginning the process of locating and using a surrogate. Some questions to ask follow:

  • Are you ready to move on from current infertility treatments?
  • How do you feel about someone else carrying your child?
  • Are both partners ready to do this?
  • How will you explain the pregnancy and birth to others and eventually to your
  • child?

It is a requirement of some infertility clinics that Intended Parents and the Surrogate Mother speak to a mental health professional specializing in infertility about these and other concerns. A mental health screening can assess whether all parties have considered the matters. It will also help to determine if the Intended Parents and the Surrogate Mother are compatible.

A surrogacy agreement involves much more than just drafting a document. Contracts involving gestational surrogacy, egg donation, and other reproductive technologies involve issues on the cutting edge of medicine and the law. The contracts are highly detailed and updated to apply the changing legal landscape of this evolving way to build a family. Each legal agreement is carefully drafted to the unique circumstances of your family.

If you are considering surrogacy, contact Hawthorne Merrill Law to discuss your options before entering into any surrogacy contract.

In vitro Fertilization

In vitro fertilization (IVF) is a series of medical procedures used to treat fertility or genetic problems and assist with the conception of a child. During IVF, mature eggs are retrieved from your ovaries and fertilized by sperm in a lab. Then the fertilized egg (embryo) or eggs are implanted in your uterus. One cycle of IVF takes about two weeks.

IVF is an effective form of assisted reproductive technology. The procedure can be done using the intended mother’s own eggs and the intended father’s sperm. Or IVF may involve eggs, sperm or embryos from a known or anonymous donor. In some cases, a gestational carrier — a woman who has an embryo implanted in her uterus — might be used.

With the IVF process comes legal issues that aren’t always addressed by the fertility clinic or physicians office.

If you are considering IVF, contact Hawthorne Merrill Law to discuss your options before entering into any contract.