Science is helping more people grow their families through the use of medical technology.  Seeking legal counsel to anticipate and prepare for potential legal issues related to the use of this technology can help you focus on the most important thing—your child.

What is ART?

In general, Assisted Reproductive Technology (ART) refers to medical technology used to help conceive a child.  ART consists of techniques that manipulate eggs and sperm outside the body to attempt a pregnancy.  This definition is intentionally very general, so as to encompass the ever-changing world of medical technology and techniques.

Why does it matter?

As in many areas, technology outpaces the law, which creates ambiguities and uncertainty.  As a result, important legal issues and problems can be difficult to foresee.  The best way to avoid problems in this very personal area is to be informed of possible issues and take steps beforehand to address them.  Dealing with anticipated issues beforehand is much easier than litigating an issue after it appears, especially when statutory law has yet to catch up.  Issues often arise related to how genetic material will be stored, how it will be used, who owns the genetic material, and who can decide how it will be used should circumstances change. 

Navigating these issues is much easier with the advice and counsel of an attorney, and can help avoid problems before they occur.  If you are thinking about using ART to conceive a child and need quality legal counsel, please call our office.  We would love to work with you as you navigate this often complex area of medicine and law. 

Legal Issues Related to ART
  • Embryo storage

In Vitro Fertilization (IVF) commonly results in numerous embryos, often to control costs and increase the likelihood of a successful pregnancy.  However, these factors contribute to potentially difficult legal situations.  For example: Who owns the embryos?  What happens if a genetic donor or intended parent changes her or his mind?  Can one party choose to implant an embryo without the consent of the other party?  Can one party choose to destroy the embryos without the consent of the other party?

New York follows what is often known as a “contractual approach,” under which courts agree to enforce contracts drawn up before the embryos were created.  Other states follow different approaches.

  • Frozen eggs (Oocyte Cryopreservation)

Women can choose to freeze their eggs to prolong fertility for possible pregnancies at a later age and to preserve fertility in cases where upcoming medical treatments may threaten fertility, such as chemotherapy.  If you decided to freeze your eggs, you should decide beforehand what to do with them if you are not around to use them.  For example, would you want them donated to a frozen egg bank or for research?  Do you want your estate to continue to pay for their storage, or do you want them destroyed?  Do you want family members or friends to be able to use them, and if a child is conceived from one of your eggs, would you want that child to inherit from your estate?

  • Sperm donation

Men can choose to freeze their sperm in cases where upcoming medical treatments may threaten future fertility, such as chemotherapy.  If a man decides to freeze his sperm, he should decide beforehand what he would like done with it if he is not around to decide.  For example, would you want it destroyed or available for a spouse or partner to use?  If a child is conceived using your sperm, would you want that child to inherit from your estate?

  • “Traditional” surrogacy

“Traditional” surrogacy is when an individual is pregnant with her own biological child, but the child was conceived for the intention of others. An example would be such as the biological father and possibly his spouse or partner raising the child.  After the birth of the child, the surrogate agrees to relinquish her parental rights for the intended parents to establish their legal parentage of the child.  This method has many legal risks and is prohibited in some jurisdictions.

  • Gestational surrogacy

Gestational surrogacy is when a surrogate is implanted with an embryo that is not genetically her own, and she gives birth to a child she will not raise.  After birth, the child is placed with the intended parents who will become the legal parents.  This method carries less legal risks than traditional surrogacy. The legal agreement between the gestational carrier and the intended parents must be carefully drafted and reviewed.  Sometimes court orders are necessary to secure the legal rights and responsibilities of the intended parents.  In some states, compensated surrogacy is tightly controlled, illegal, or not regulated.  New York law holds compensated surrogacy agreements void, unenforceable, and contrary to public policy.  However, this does not mean that citizens of New York State cannot use surrogacy to grow their families.

  • Posthumous conception

Current medical technology makes it possible for a child to be conceived after a sperm or egg donor’s death.  Under New York law, there are statutory requirements in order for a child conceived with a deceased parent’s genetic material to inherit from the deceased genetic parent.


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