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Assisted Reproductive Technology Law for Practitioners

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Assisted Reproductive Technology Law for Practitioners Assisted Reproductive Technology Law for Practitioners Beth Wolfsong Wolfsong Law PC Robin Pope Attorney at Law Multnomah Bar Association Continuing Legal Education Seminar March 19, 2015 Expose Yourself to ART: The Basics of Assisted Reproductive Technology Law in Oregon Expose yourself to a growing area of law: Learn the basics about family formation law. It is an emerging, collaborative area of law fraught with interesting legal issues. The rights and obligations of Intended Parents, Surrogates and Donors need to be weighed and balanced. This CLE will provide you with the basics to learn the sources of the relevant law, how to protect clients in the process, ensure the fairness of the process and create agreements that help the parties work together to create a life. PREPARED BY: Robin Elizabeth Pope, Attorney at Law and Beth S. Wolfsong, Attorney at Law Robin E. Pope, Attorney at Law Beth S. Wolfsong, Attorney at Law 4500 S.W. Hall Blvd. 9900 S.W. Wilshire St. Suite #100 Beaverton, Oregon 97005 Portland, Oregon 97225 (503) 352-3524 (503) 616-8880 FAX (503) 644-2146 E-mail: [email protected] E-mail: [email protected] DISCLAIMER: These materials were produced by Robin E. Pope and Beth S. Wolfsong and are meant to assist attorneys and adoption professionals in understanding some of the issues involved with Assisted Reproductive Technology Law. This is an evolving area of law and medicine, full of complexities, ethical issues and risks, and the facts of each case unique. Practitioners should consult with knowledgeable professionals regarding the current status of the law and medical treatments. Page 1 – Expose Yourself to ART – Pope and Wolfsong Table of Contents Page A. INTRODUCTION . 3 B. ART TERMINOLOGY . 4 C. TRADITIONAL SURROGACY v. GESTATIONAL SURROGACY . 5 D. LEGAL ISSUES . 5-12 1. General Legal Issues . 5 2. Sperm Donation Issues . 5-7 3. Egg Donation Issues . 7-8 4. Embryo Donation . 8 5. Surrogacy . 9-10 6. Establishment of Parentage . 10 7. Estate Planning Considerations . 10-12 E. PROS AND CONS OF ART . 12 F. INFERTILITY COUNSELING ISSUES . 12 G. PAYMENT FOR SERVICES . 12-13 H. ETHICAL ISSUES ASSOCIATED WITH ART . 13 I. HOW TO MAKE THE PROCESS GO SMOOTHLY . 14 J. INTERNATIONAL SURROGACY CONSIDERATIONS . 14 Page 2 – Expose Yourself to ART – Pope and Wolfsong HOW TO MAKE A BABY IN THE 21st CENTURY SOURCES OF GENETIC MATERIAL = 4 ∙ Intended Mom ∙ Intended Dad ∙ Donor Eggs ∙ Donor Sperm METHODS OF FERTILIZATION = 2 ∙ In the Lab ∙ In the body METHODS OF GESTATION = 2 ∙ In the Intended Mom ∙ In a Surrogate or Gestational Carrier A. INTRODUCTION In July 1978, the first “test tube” baby, Louise Brown, was born in England. Since that time, the new world of reproductive technology has given us in vitro fertilization, egg donation, frozen embryos, genetic testing of embryos, and other types of medical procedures. This new technology has in turn created a multitude of legal, ethical and social issues. Working in this field gives one a strong sense that boundaries are lacking. It is our goal to expose you to some of the issues that have arisen and may arise in the future as a result of the advancements in ART law. In Oregon, there has been an interesting interplay between adoption law and the legal handling of the births resulting from these medical technologies. The number of children being born as a result of assisted reproductive technology keeps increasing. Adoption numbers are declining. In addition, surrogacy has become a gay rights issue. Page 3 – Expose Yourself to ART – Pope and Wolfsong B. ART TERMINOLOGY. It helps to learn and understand some of the terminology: ART: Assisted Reproductive Technology: Using medical technology to achieve a pregnancy. Egg Donor: A woman who donates her eggs for use by another woman in IVF procedures. Embryos: Created in a lab using sperm and eggs provided by and/or belonging to Intended Parents. May be used fresh or may be frozen for later use in subsequent attempts at pregnancy. Embryo Donation: Embryos belonging to Intended Parents may be donated to another couple so the second couple can attempt to achieve pregnancy through embryo transfer. The child will not be genetically related to the woman giving birth and her spouse/partner. Embryo Transfer: Refers to the procedure contemplated under the agreement whereby existing embryos provided by and belonging to the Intended Parents are medically transferred into the uterus of GC for the purpose of creating a pregnancy for Intended Parents. Gestational Carrier or Gestational Surrogate: Also referred to as the “GC” or “GS”; this is the woman who intends to receive embryos which are the product of genetic material provided and belonging solely to the Intended Parents and then to bear and give birth to a child or children for the Intended Parents. She is not genetically related to the child. Gestational Carrier or Surrogate Agreement: Written Contract entered into between Intended Parents and the Gestational Carrier or Surrogate. Intended Parent(s), Intended Mother, Intended Father: The person(s) who is/are the prospective genetic and/or sole intended parent(s) of a child or children contemplated by the agreement. IVF Procedure: Refers to a procedure by which oocyte (eggs) retrieved from the Intended Mother or, if necessary, from a third-party egg donor other than GC, are fertilized in the laboratory by the sperm of the Intended Father or, if necessary, by sperm provided by a third-party donor. Resulting embryos may be the subject of an embryo transfer procedure under the agreement. Sperm Donor: A man who donates sperm for use in IVF or TDI procedures. TDI or Therapeutic donor insemination, formerly known as AID (Artificial insemination by donor: This involves the use of donor sperm to fertilize a woman’s egg, typically through artificial insemination. Traditional Surrogate: Woman who is artificially inseminated with sperm from a man who is not her husband. The surrogate is thus genetically and biologically related to the resulting child. / / / / / Page 4 – Expose Yourself to ART – Pope and Wolfsong C. TRADITIONAL SURROGACY VERSUS GESTATIONAL SURROGACY Traditional surrogacy refers to situations where the surrogate is the genetic mother of the child, meaning it is her egg that was utilized to help create the pregnancy. In a gestational surrogacy, there is no genetic relationship between the surrogate and the child: a donor egg is fertilized in a medical facility using in vitro fertilization. The resulting embryo is then transferred to the surrogate. The current trend in surrogacy law is to move away from traditional surrogacy. This is in part due to advances in medical technology, which make gestational surrogacy a more viable option. In addition, many attorneys and Intended Parents want to avoid the heightened vulnerability and potential for conflict and legal risk associated with traditional surrogacy. D. LEGAL ISSUES 1. General Legal Issues Our constitutional right to privacy protects our reproductive decisions. The U.S. Supreme Court has found that the right to procreate and enjoy reproductive autonomy is a fundamental right. See, e.g., Planned Parenthood of Southeast Pennsylvania v. Casey, 112 S. Ct. 2791, 60 U.S.L.W. 4795 (1992); Stanley v. Illinois, 405 US 645 (1972); Eisenstadt v. Baird, 405 US 438 (1972); Griswold v. Connecticut, 381 US 479 (1965); and Skinner v. Oklahoma, 316 US 535 (1942). A central legal issue in this area of law is how states clarify the parental rights of persons respecting the children born through use of ART. While the rights of sperm donors have long been defined by statute in many jurisdictions, including Oregon, there are few laws to guide us when it comes to egg donors, surrogates and gestational carriers. Other legal issues arising in this area include the termination of parental rights, presumptions of paternity and maternity, determination of paternity and maternity, adoption, employment issues (e.g., is the surrogate an employee of the Intended Parents), child support, ownership of embryos, and issues involving international law when the Intended Parents are from another country. 2. Sperm Donation Issues Therapeutic Donor Insemination, also known as TDI, has been available as a reproductive technique since at least the 1950's. Historically TDI has been used by couples experiencing male infertility, couples where the genetic background of the male is an issue, single women, and non-traditional couples wanting a child who is biologically the child of one of the couple. Oregon law has long addressed the use of donor sperm. ORS 109.239 et seq. This statue specifically allows married opposite sex couples and single women to avail themselves of the process of donor insemination. For married couples using TDI, the child is legally presumed to be the child of the husband. Page 5 – Expose Yourself to ART – Pope and Wolfsong Since 2009, the protections of this statute extend to same sex female couples, provided they otherwise meet the requirements of the statute. However, it is still prudent for the non-birth mother to adopt the child. A single woman using TDI will be the legal parent of the child; the child will have no legal father. There is no need for an adoption. Sperm donors typically remain anonymous. Reputable clinics screen donors for infectious and genetic diseases, STD and AIDS. There are no legal guidelines requiring disclosure of the genetic background of the donor to the person(s) using the donor sperm. Under Oregon law, there is a procedure requiring consent of the parties using TDI. By consenting, the spouse is bound by the presumption that the resulting child is his or her legal child. Should the couple ever divorce, both parents would be legally obligated to support the child. Under current Oregon law, when TDI is used by same sex female couples, the non-birthmother should adopt the child in order to be considered the child’s legal parent in all jurisdictions.
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