Assisted reproductive technologies

• Pages: 341-385
• Date: 01 January 2025
• Published date: 01 January 2025
• Author: Shannon Tryon,Kylie Swinmurn,Anna Wells,Elaine McCabe,Taylor-Ryan Nedd

ASSISTED REPRODUCTIVE TECHNOLOGIES

EDITED BY SHANNON TRYON, KYLIE SWINMURN, ANNA WELLS,

ELAINE MCCABE, & TAYLOR-RYAN NEDD

I. INTRODUCTION.......................................... 341

II. ASSISTED REPRODUCTIVE TECHNOLOGIES: A BRIEF OVERVIEW ........ 343

A. PROCEDURES EMPLOYED IN ASSISTED REPRODUCTIVE TECHNOLOGIES 343

B. POTENTIAL RISKS TO OFFSPRING ......................... 344

C. ATTEMPTS TO CREATE A UNIFORM LEGAL CODE .............. 345

III. LEGAL ISSUES GENERALLY ................................. 347

A. OWNERSHIP OR CONTROL OF THE EMBRYO .................. 347

1. Binding Agreements Between Parties .................. 347

2. State Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 348

3. Adjudication. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 349

B. DETERMINING PARENTAGE ............................. 352

C. DETERMINING CITIZENSHIP FOR CHILDREN BORN ABROAD USING

ASSISTED REPRODUCTIVE TECHNOLOGIES ................... 355

D. INHERITANCE RIGHTS ................................. 356

E. SURROGACY CONTRACTS .............................. 359

1. Permissive Jurisdictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 360

2. Restrictive Jurisdictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 364

3. Prohibitive Jurisdictions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 366

F. INSURANCE COVERAGE ................................ 367

IV. SAME-SEX COUPLES AND ASSISTED REPRODUCTIVE TECHNOLOGIES . . . . . 372

A. SURROGACY CONTRACTS AND SAME-SEX COUPLES ............ 373

B. INSURANCE COVERAGE AND SAME-SEX COUPLES.............. 375

C. PARENTAGE AND SAME-SEX COUPLES ..................... 377

1. The UPA and State Statutes .......................... 377

2. Judicial Tests for Parentage . . . . . . . . . . . . . . . . . . . . . . . . . . . 379

D. THE IMPACT OF DISCRIMINATION ......................... 382

V. FUTURE REGULATION OF ASSISTED REPRODUCTIVE TECHNOLOGIES

AND EMERGING TRENDS ................................... 383

VI. CONCLUSION ........................................... 384

I. INTRODUCTION

The U.S. Code defines Assisted Reproductive Technology (ART) as any treat-

ment or procedure that includes the handling of human eggs (“oocytes”) or

embryos.

1

ARTs have made parenthood possible for individuals and couples who

1. 42 U.S.C.A. § 263a-7(1) (West, Westlaw through Pub. L. No. 119-1).

341

are unable to reproduce through traditional sexual intercourse. However, the cur-

rent doctrinal issues affecting ARTs were not contemplated by scholars until the

emergence of a field combining U.S. law and human reproductive medicine in

1981.

2

The emergence of ARTs has led to novel legal disputes, and, in the ab-

sence of comprehensive federal regulation, states have struggled to adapt existing

legal theories—such as contract, tort, and property law—to the emerging scenar-

ios presented by advances in ART.

3

Unlike the strict regulations associated with much of the medical and health

care industries, the federal government currently plays a modest role in directly

regulating innovative medical procedures such as ARTs.

4

In total, ART proce-

dures are divided into five sources of regulation: (1) self-regulation by the indus-

try; (2) indirect regulation by the federal government through statutes and federal

agencies indirectly overseeing reproductive medicine;

5

(3) indirect regulation by

the state government under various common law doctrines and licensing require-

ments; (4) direct regulation by the federal government; and (5) direct regulation

by state governments under state statutes.

6

The sole federal law that explicitly

regulates the infertility industry is the Fertility Clinic Success Rate and

Certification Act of 1992.

7

The Act creates a system by which clinics must sys-

tematically report their pregnancy success rates—calculated by live birth rates—

to the Centers for Disease Control and Prevention (CDC).

8

This information is

then made available to the public.

9

Ultimately however, the only real conse-

quence a clinic faces for not reporting their data is that the clinic’s name is

included in the CDC’s annual pregnancy success rates report.

10

The Food and

Drug Administration’s (FDA) legal recommendations concerning tissue dona-

tion, and by implication ART, have been promulgated through guidelines created

by the Uniform Parentage Act (UPA),

11

the Uniform Probate Code (UPC),

12

and

2. The first live birth from IVF in the United States was Elizabeth Carr, born in 1981 in Norfolk,

Virginia per H.W. Jones, Jr. and his team. See SUSAN L. CROCKIN & HOWARD W. JONES JR., LEGAL

CONCEPTIONS: THE EVOLVING LAW AND POLICY OF ASSISTED REPRODUCTIVE TECHNOLOGIES 4, 14

(John Hopkins Univ. Press 2010).

3. While the federal government did enact the Fertility Clinic Success Rate and Certification Act,

which addresses the ART industry, the Act explicitly bars federal regulation of the “practice of medicine

in assisted reproductive technology programs.” Delores V. Chichi, Note, In Vitro Fertilization, Fertility

Frustrations, and the Lack of Regulation, 49 HOFSTRA L. REV. 535, 545 (2021). States have largely

declined to directly regulate ART in the absence of federal regulation. See id. at 554.

4. See id., at 555; see also Valarie K. Blake, Michelle L. McGowan, & Aaron D. Levine, Conflicts of

Interest and Effective Oversight of Assisted Reproduction Using Donated Oocytes, 43 J.L. MED. &

ETHICS 410, 411–12 (2015).

5. See Blake, McGowan, & Levine, supra note 4, at 411–12.

6. See id. at 412.

7. See 42 U.S.C.A. §§ 263a-1–a-7 (West, Westlaw through Pub. L. No. 119-1).

8. See id. § 263a-l.

9. Id. § 263a-5.

10. Id.

11. See Unif. Parentage Act (Unif. L. Comm’n 2017) [hereinafter UPA].

12. See Unif. Prob. Code §§ 2-115, 2-118–121, 2-705, 3-703, 3-705 (Unif. L. Comm’n amended

2019) [hereinafter UPC].

342 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 26:341

a Model Act adopted by the American Bar Association (ABA40).

13

States are not

required to adopt model acts or uniform codes, and none have adopted the ABA

Model Act. State legislatures and judges have attempted to clarify some of the

legal issues surrounding ART, but state-by-state variations in statutory language

and judicial precedent persist. This Article will focus on the legal landscape sur-

rounding ARTs. Part II provides an overview of ARTs and describes the medical

procedures employed and any potential risks to offspring. Part III will discuss the

general legal uncertainty in various areas of state and federal regulation concern-

ing ARTs, as well as implications surrounding insurance for the procedures. Part

IV will discuss specific challenges same-sex couples face regarding utilization of

ARTs. Finally, Part V will discuss the legal issues associated with future regula-

tion of ART.

II. ASSISTED REPRODUCTIVE TECHNOLOGIES: A BRIEF OVERVIEW

A. PROCEDURES EMPLOYED IN ASSISTED REPRODUCTIVE TECHNOLOGIES

Assisted reproductive technologies involve combining sperm with ova that

have been surgically removed from the body, creating an embryo, and returning

the embryo to the uterus, or donating the produced embryos to another person or

couple.

14

See 2019 ASSISTED REPRODUCTIVE TECHNOLOGY FERTILITY CLINIC SUCCESS RATES REPORT,

CTRS. FOR DISEASE CONTROL & PREVENTION, U.S. DEP’T OF HEALTH & HUM. SERVS. 2 (2019)

[hereinafter CDC 2019], https://perma.cc/FRL9-PK9J.

ART procedures include in vitro fertilization (IVF), gamete intrafallo-

pian transfer (GIFT), zygote intrafallopian transfer (ZIFT), and intracytoplasmic

sperm injection (ICSI).

15

See id.; see generally Surrogacy Dictionary, WORLDWIDE SURROGACY SPECIALISTS L.L.C.,

https://perma.cc/547P-2NAB [hereinafter WORLDWIDE SURROGACY SPECIALISTS].

IVF is the dominant form of ART and involves the combination of the egg and

sperm to achieve fertilization outside of the body, usually in a glass petri dish

under a microscope.

16

The embryo is then transferred to the person’s uterus

through the cervix.

17

GIFT and ZIFT are variations of IVF that involve placement

of the egg and sperm in the fallopian tubes instead of the uterus. In GIFT, unfertil-

ized eggs and sperm are placed in the fallopian tube and fertilization occurs inside

of the body.

18

ZIFT, on the other hand, involves placement of a pre-fertilized egg

in the fallopian tubes.

19

With ICSI, an embryologist uses a micropipette to inject

a single sperm into the center of an egg; the fertilized egg grows in a laboratory

for one to five days before being placed in the uterus.

20

See Fact Sheet: What is Intracytoplasmic Sperm Injection?, REPRODUCTIVEFACTS.ORG (2021),

https://perma.cc/SB49-E9T9.

Artificial insemination

13. Am. Bar Ass’n., American Bar Association Model Act Governing Assisted Reproductive

Technology, 42 FAM. L.Q. 171, 175 (2008) [hereinafter ABA Model Act].

14.

15.

16. CDC 2019, supra note 14, at 51.

17. Id. Many of the sources discussing this topic refer to people who can give birth as women, though

many people with other gender identities are capable of giving birth.

18. Id. at 50.

19. Id.

20.

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