Assisted reproductive technologies

• Author: Leanne Aban/Jenna Pickering/Kira Eidson/Reema Holz/Chunhui Li/Olivia Luongo
• Pages: 337-379

ASSISTED REPRODUCTIVE TECHNOLOGIES

EDITED BY LEANNE ABAN, JENNA PICKERING, KIRA EIDSON, REEMA HOLZ,

CHUNHUI LI, AND OLIVIA LUONGO

I. INTRODUCTION.......................................... 337

II. ASSISTED REPRODUCTIVE TECHNOLOGIES: A BRIEF OVERVIEW ........ 339

A. PROCEDURES E MPLOYED IN ASSISTED REPRODUCTIVE TECHNOLOGIES . . 339

B. POTENTIAL RISKS TO OFFSPRING ......................... 340

C. ATTEMPTS TO CREATE A UNIFORM LEGAL CODE .............. 342

III. LEGAL ISSUES GENERALLY ................................. 343

A. OWNERSHIP OR CONTROL OF THE EMBRYO .................. 343

1. Binding Agreements Between Parties. . . . . . . . . . . . . . . . 344

2. State Statutes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 344

3. Adjudication . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 345

B. DETERMINING PARENTAGE ............................. 348

C. DETERMINING CITIZENSHIP FOR CHILDREN BORN ABROAD USING

ASSISTED REPRODUCTIVE TECHNOLOGIES ................... 351

D. INHERITANCE RIGHTS ................................. 352

E. SURROGACY CONTRACTS .............................. 355

1. Permissive Jurisdictions . . . . . . . . . . . . . . . . . . . . . . . . . . 355

2. Restrictive Jurisdictions . . . . . . . . . . . . . . . . . . . . . . . . . . 360

3. Prohibitive Jurisdictions . . . . . . . . . . . . . . . . . . . . . . . . . . 361

F. INSURANCE COVERAGE ................................ 362

IV. SAME-SEX COUPLES AND ASSISTED REPRODUCTIVE TECHNOLOGIES . . . . . 367

A. SURROGACY CONTRACTS AND SAME-SEX COUPLES ............ 368

B. INSURANCE COVERAGE AND SAME-SEX COUPLES.............. 369

C. PARENTAGE AND SAME-SEX COUPLES ..................... 371

1. The UPA and State Statutes . . . . . . . . . . . . . . . . . . . . . . . 372

2. Judicial Tests for Parentage . . . . . . . . . . . . . . . . . . . . . . . 373

D. THE IMPACT OF DISCRIMINATION ......................... 377

V. FUTURE REGULATION OF ASSISTED REPRODUCTIVE TECHNOLOGIES AND

EMERGING TRENDS ...................................... 378

VI. CONCLUSION ........................................... 379

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

1. 42 U.S.C.A. § 263a-7 (West, Westlaw through Pub. L. No. 117-168).

337

who, for a variety of reasons, are unable to reproduce through sexual intercourse.

Despite enabling the creation of new families, ARTs present doctrinal issues that

were not contemplated before the emergence of a field combining U.S. law and

human reproductive medicine in 1981.

2

These new risks have led to novel legal

disputes, and, in the absence of comprehensive federal regulation, states have

struggled to adapt existing legal theories—such as contract, tort, and property

law—to the emerging scenarios presented by advances in ART.

3

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

which does address the industry, the Act explicitly bars federal regulation of the “practice of medicine in

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

Frustrations, and the Lack of Regulation, 49 HOFSTRA L. REV. 535, 545 (2021), https://perma.cc/74AT-

8P9K. States have largely declined to directly regulate ART in the absence of federal regulation. See id.

at 554.

Unlike the strict regulations associated with medications and medical devices,

the federal government plays only a modest role in directly regulating innovative

medical procedures such as ARTs.

4

In total, ART procedures are divided into five

sources of regulation: (1) self-regulation by the industry; (2) indirect regulation

by the federal government through statutes and federal agencies indirectly over-

seeing reproductive medicine;

5

What You Should Know – Reproductive Tissue Donation, U.S. FOOD & DRUG ADMIN. (Apr. 25,

2019), https://perma.cc/6HRZ-D5Q4.

(3) indirect regulation by the state government

under various common law doctrines and licensing requirements; (4) direct regu-

lation by the federal government; and (5) direct regulation by the state govern-

ment 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 systematically report their

pregnancy success rates—calculated by live birth rates—to the Center for

Disease Control (CDC).

8

This information is then made available to the public.

9

One criticism of the Act is that the only real consequence of non-reporting of the

data is that the non-reporting clinic’s name is included in the annual report, result-

ing in potential reputational damage.

10

The Food and Drug Administration

(FDA)’s legal recommendations concerning tissue donation have been promul-

gated through guidelines created by the Uniform Parentage Act (UPA),

11

the

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.

4. See id., at 555; see 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.

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

7. See 42 U.S.C.A. §§ 263a-1–a-7 (West, Westlaw through Pub. L. No. 117-168).

8. See id. § 263a-l.

9. Id. § 263a-5.

10. Id.

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

338 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. 24:337

Uniform Probate Code (UPC),

12

and a Model Act adopted by the American Bar

Association (ABA).

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, but state-by-state variations in

statutory language and judicial precedent persist. This Article will focus on the

legal landscape surrounding 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 lurking in various areas of state

regulation concerning ARTs, as well as implications for insurance for the proce-

dures. 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 regulation 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, and returning the fertilized eggs 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 intrafallopian transfer

(GIFT), zygote intrafallopian transfer (ZIFT), and intracytoplasmic sperm injec-

tion (ICSI).

15

Artificial insemination (AI) and surrogacy, while not technically

ARTs, implicate similar legal issues by assisting individuals and couples in

achieving pregnancy, and thus will be considered in this discussion.

16

See generally Surrogacy Dictionary, WORLDWIDE SURROGACY SPECIALISTS L.L.C., https://

perma.cc/547P-2NAB (last visited Mar. 9, 2023) [hereinafter WORLDWIDE SURROGACY SPECIALISTS].

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

IVF is the dominant form of ART. “In vitro” in Latin translates to “in glass.” A

fairly literal name, IVF involves the combination of the egg and sperm to achieve

fertilization outside of the body, usually under a microscope in a glass petri

dish.

17

The embryo is then placed in the uterine cavity for implantation.

18

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, unfertilized eggs and sperm

are placed in the fallopian tube and fertilization occurs inside of the body.

19

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

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

2019) [hereinafter UPC].

13. AM. BAR ASSOC., Model Act Governing Assisted Reproductive Technology (Feb. 2008), 42 FAM.

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

14.

15. Id.

16.

18. Id.

19. Id. at 2.

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