Assisted Reproductive Technology
Assisted reproductive technology (ART), also known as assisted reproductive treatment, refers to technologies and associated methods used to assist people in achieving a pregnancy. ART is used:
- as infertility treatment for couples
- by women who cannot become pregnant without treatment
- by women who cannot carry a baby in pregnancy or give birth without treatment
- to reduce the chance of a child inheriting a genetic disease or abnormality.
There are a lot of potential legal issues that can arise in assisted reproductive technology cases.
Traditional Surrogate vs Gestational Carrier
With rapid advances in technology, couples are now afforded the opportunity to have a child by way of surrogacy. Surrogacy might be an option for your family if you are a same sex couple, if a woman has had a hysterectomy, or if there are other mitigating medical conditions. Surrogacy has been increasing in popularity. The Center for Disease Control and Prevention (CDC) reported that in 2013 that 2.5% of babies born from surrogacy.
In Virginia, a traditional surrogate is a woman who carries a child created with her own egg. The sperm is either donated or from the intended father. When donor sperm is used, then neither intended parent is genetically related to the child.
A gestational carrier is a woman who carries a child for someone else. When the intended parents are genetically the parents of the child, or when one parent is the genetic parent and the carrier is not genetically related, then the woman carrying the fetus is considered a gestational carrier.
Intended parents refers to a man and a woman, married to each other, who enter into an agreement with a surrogate under the terms of which they will be the parents of any child born to the surrogate through assisted conception regardless of the genetic relationships between the intended parents, the surrogate, and the child.
Drafting of Surrogate/Carrier Contract
Why Legal Representation is Critical for Your Case
Although surrogacy can be extremely rewarding, the process can be very complex with many legal intricacies. Therefore, it is highly recommended to have a legal contract in place before the surrogate process begins. Surrogate/carrier contracts are beneficial to ensure validity and enforceability of an agreement if your case falls outside of what current statutes protect and if something unexpected happens. Moreover, having a contract ensures that tough conversations are had upfront, in order to prevent disputes later into the pregnancy.
There are two types of contracts used in assisted reproductive technology (ART) situations: court approved or non-court approved. Generally non-court approved contracts are used because they are less expensive and less complex, however they still have to be in compliance with Virginia Code in order to be enforceable.
Court approved contracts must be finalized before the surrogacy process starts. Additionally, if you have a court-approved contract you will have a guardian ad litem appointed to your case, you and your surrogate will both have a home study, all intended parties have to meet the standards of fitness and undergo counseling, the surrogate has to have at least one pregnancy prior, at least one of the intended parents has to be genetically related to the child, and will have to appear in court several times for various hearings.
Once the baby is born, it is imperative to amend her/his birth certificate. If the parties are operating under a court approved contract, then upon proof that the child is in fact genetically related to one of the intended parents, the court will order the State Registrar of Vital Records to issue a new birth certificate with the amended information.
If the parties are operating under a non-court approved contract, then upon expiration of three days of the child being born, the surrogate may relinquish her parental rights and the birth certificate has to be amended. If she chooses to not relinquish her rights, then she will be the parents of the child and the intended parents will be responsible for 50% of the medical expenses.
In the cases where at least one of the intended parents is genetically related to the child and the intended parents, then the intended parents need to submit the surrogate consent form, a copy of the surrogate contract, and a statement from the physician who performed the assisted conception stating the genetic relationship between the child/intended parents need to be submitted to the court within 180 days after the child’s birth.
However, if the intended parents are not genetically related to the child or the intended parents or if the parties involved do not classify as “intended parents,” then the parties will have to formally adopt the child in order to have the child’s birth certificate amended.
Legal representation is critical for any case in order to avoid adverse outcomes. Depending on your family’s situation, you might need a formal donation agreement, legal adoption/step-parent adoption, order of parentage, help amending a birth certificate, or representation in a custody dispute. Some family’s fall within Virginia’s assisted reproductive technology (ART) statutes, yet many do not. For instance, only heterosexual married couples will typically fall within the statutes. Therefore, same-sex parents, a couple not married, or if the intended parent is single will typically fall outside of the statute. Although surrogacy can be an extremely rewarding experience, it is very complex and legal representation is vital in order to ensure that your family’s desires are met.
Click here to access The US Surrogacy Law Map ™ to learn more information on surrogacy law in other states.
Contact an experienced Virginia Assisted Reproductive Technology Law attorney for a consultation
Ernest Law Group, PLC assists clients throughout Virginia with Assisted Reproductive Technology Law matters. Please call 757-289-2499 or contact us online to schedule a consultation at our Virginia Beach office.