Assisted Reproductive Technology Law – How Surrogacy is Changing the Legal Industry

Attorney Michele Jackson recently returned from the American Bar Association’s (ABA) annual Family Law Conference which was held April 6-9, 2011. The conference was the first time the ABA has offered a section of seminars specifically to address Assisted Reproductive Technology (ART) and its impact on an ever-changing legal landscape.

There are no national policies or laws governing ART and legislation varies widely state to state. Some states are “surrogacy-friendly” such as Illinois, which have clear, defined legislation regarding the process. Some states expressly prohibit surrogacy contracts, making it a criminal act (Michigan, for example), while states such as Indiana and Ohio lack legislation but rely upon case law and other areas of law (paternity, adoption and contracts) to determine procedures.

Interest in ART and surrogacy is growing across the country due to medical advances which provide individuals and couples with more choices to grow their families if they are dealing with infertility issues. Despite the rapid growth of demand, legislation has been slow to adapt, due to some controversies dating back more than 20 years years which continue to cause misconceptions about ART and surrogacy. Some reluctance to support surrogacy or ART practices is linked to conservative or religious ideology. Because of the disparity in the obvious demand for legal services to protect parties and lack of coherent practices, the ABA has spearheaded new legal education to involve attorneys across the US who are interested in developing ART-oriented practices.

At the annual conference, Jackson found that she is one of the few attorneys who had actual experience in working with surrogacy clients. She said many of the attorneys attending the conference had not yet handled surrogacy or ART cases, but were eager to learn due to the growth in demand for services. The seminar topics covered diverse issues, from drafting legal agreements for donors and surrogates to insurance issues. A sample of the seminars:

 How do Clinic Consent Forms, Written Legal Agreements, and Standard State Percentage Laws Interact in Third Party Reproduction?

 What happens When the Legal System and ART Law Intersect?

 Oh, What a Relief It Is: An Analysis of Insurance Issues in Surrogacy
Jackson points out that because there has been lack of legislation, many fertility doctors (a/k/a REI doctors) and clinics have crafted their own forms, consents and agreements to provide to ART patients and clients. Unfortunately, many of those consent forms don’t fully protect the donors or surrogacy patients or intended parents. The consent forms may be incomplete or not fully compliant with some areas of a particular state’s laws. Jackson understands why clinics have created the consent forms, but sees a significant need for cooperation between clinics/REI doctors and attorneys representing ART clients to make sure that agreements meet legal requirements so that all parties’ interests are protected. Simply put, the consent forms aren’t enough to address the full legal ramifications associated with ART.

Jackson shared that there were some consistent messages among the attorneys attending the ABA conference on ways to address inconsistencies in an area that is rapidly changing and developing. ART will continue to impact legislation and more courts will see surrogacy agreements, parentage documents or litigation resulting from ART because people will increasingly pursue third party reproduction to have children. Surrogacy contracts limit the chaos, because clear written intent limits liability and mitigates adverse actions. Jackson is also quick to point out that while so much of the focus is on the intended parents or surrogates, the reality is that children are born from ART and that the priority should always be on protecting the children’s best interests.