The History and Future Trends of ART Medicine and Law

• Author: Amy B. Altman,Meagan A. Edmonds,Susan L. Crockin
• Date: 01 January 2021
• Published date: 01 January 2021
• DOI: http://doi.org/10.1111/fcre.12550

THE HISTORYAND FUTURE TRENDS OF ART MEDICINE AND LAW

Susan L. Crockin, Amy B. Altman, and Meagan A. Edmonds

The Assisted Reproductive Technologies (“ART”) have resulted in over eight million births to date, heralding remarkable

advances in reproductive medicine with a transformational impact on both medicine and law. The effects have been acutely

felt on the modern family, as well as on a myriad of areas of legal practice—including Family Law, Estate Planning, Contract,

Health, Constitutional, Criminal, Discrimination, Tort Law and, for international arrangements, Immigration and Citizenship

laws. This article examines the historical context, present impact, and future trends of ART and the Law. Its purpose is to

help better understand these unique developments in order to help law and policy makers harness and craft the policies and

frameworks that will be needed to monitor, shape and guide these remarkable possibilities for participants, professionals, law

and society.

Practitioner’sKey Points:

Medical Advances in ART have transformed parentage laws.

Third-party ART introduces unique legal issues and challenges for estate planners and family lawyers.

Cryopreserved IVF embryos can trigger Tort, Contract, Family Law, Negligence and Professional Liability

Litigation.

Dramatic changes in current trends in gamete donation and surrogacy have direct implications for lawyers rep-

resenting intended parents and ART professionals.

Keywords: Assisted Reproductive Technology; Embryos; Fertility Preservation; Gamete Donation; Posthumous Reproduc-

tion; Reproductive Genetics; Reproductive Rights; Surrogacy.

I. INTRODUCTION

A dispute over whether a former or surviving spouse can use embryos created through in vitro

fertilization (“IVF”) during the marriage (potentially with donor sperm or donor eggs), or a cus-

tody f‌ight over the parentage of a child born to a gestational surrogate in the midst of a divorce

with six potential parents (an egg donor, sperm donor, married gestational surrogate and her

spouse, and two intended parents), may be a Family or Estate Planning lawyer’s wildest dream or

worst nightmare. These are real-life scenarios that ref‌lect the legally not-so-simple new reality of

family building options—and challenges—made possible by four decades of remarkable medical

advances in the still-evolving medical f‌ield of Assisted Reproductive Technologies (“ART”

or “ARTs”).

This article provides a historical overview of the inextricably intertwined medico-legal develop-

ment of the ARTs and explores the impact of the ARTs on multiple areas of law, with an emphasis

on what today’s and tomorrow’s Family Law practitioners will want to understand as they confront

the impact of these continually developing technologies on their legal practices. Part I explains the

importance of a shared understanding of medical and legal vocabulary. Part II provides a brief med-

ical explanation of what IVF and ART are. Part III tells the “IVF Story”–how IVF developed, f‌irst in

Corresponding: slc239@georgetown.edu

The authors thank Dr. Robert Stillman for his input and comments on the medical history and aspects of IVF and ART in an

earlier draft of this article.

Supported as part of a grant from the Howard and Georgeanna Jones Foundation for Reproductive Medicine to develop

“Jones Rounds,”an inter-disciplinary didactics program exploring the intersections between ART Medicine, Law and Ethics.

FAMILY COURT REVIEW, Vol. 59 No. 1, January 2021 22–45, doi: 10.1111/fcre.12550

© 2021 The Authors. Family Court Review published by Wiley Periodicals LLC. on behalf of Association of Family and Conciliation Courts.

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which permits use

and distribution in any medium, provided the original work is properly cited, the use is non-commercial and no modif‌ications or adaptations

are made.

the United Kingdom and, shortly after, in the United States against the legal backlash and reactions it

engendered. Part IV is a selective review of the state of the law pre-IVF and its continuing impact on

Family Law. Part V traces the subsequent development of ART Law to address specif‌ic emerging

ART protocols including: embryo cryopreservation (freezing); sperm, egg and embryo donation; and

traditional (genetic) and gestational surrogacy. Part VI brief‌ly highlights the impact of IVF on a

growing number of intertwined medical and legal developments, ranging from same-sex marriage

and parentage, to the expansion of genetic testing that has accelerated the demise of donor “anonym-

ity”while expanding potential tort liability, to increased insurance mandates covering both infertility

and oncofertility treatments, and the introduction of “fertility fraud”legislation aimed at punishing

fertility doctors for unauthorized practices. Part VII concludes the article with a brief look at potential

future ART-related medical advances and ref‌lects on the continuing revolutionary impact of IVF and

the ARTs on the law.

1978 heralded the birth of the world’sf‌irst “test tube baby,”Louise Brown, in the UK. Her remark-

able birth was followed rapidly by Candice Reed in Australia in 1980, and Elizabeth Carr in the US

in 1981. Brown recently turned 40 and is herself a mother of two naturally conceived and born chil-

dren. While her birth was instantly recognized and widely publicized worldwide as a medical phe-

nomenon, much less attention was given to the challenges this new possibility for baby-making

would quickly force courts and legislatures to confront. In creating a new way to make babies, IVF

also began to force law and policy makers to conceive a myriad of new legal paradigms. In the

roughly 40 years since these novel births, IVF has become an accepted medical practice, with over

8 million IVF children born world-wide.

1

Newer technologies that build on IVF have come to be

known collectively as the Assisted Reproductive Technologies (or the singular “Assisted Reproductive

Technology,”referred to interchangeably as “ART”). The menu of ART procedures to help create

babies has grown to include egg and embryo donation, pre-implantation genetic testing (“PGT”)of

IVF embryos, gestational surrogacy, and seemingly endless combinations of these technologies. Taken

together, they have exponentially expanded not only who can become parents, but also the number of

individuals, both men and women, who can contribute genetically or gestationally to the creation of

babies that they do not intend to raise. Together these revolutionary medical technologies have made

it possible for many infertile couples, same-sex couples, and single patients to all become parents with

some degree of genetic and/or gestational connection to a resulting child.

While the changes and challenges ART has introduced for law and policy makers across many

areas cannot be overstated, the most notable impacts have been in the areas of Family Lawand repro-

ductive rights. The impact of rapid advances in reproductive medicine and introduction of third

parties into the process challenge long-standing, foundational legal principles of Family Law, includ-

ing presumptions of maternity and paternity, and genetic relatedness as a premise of parentage. The

rise of interstate and international ART arrangements exponentially complicates both choice and

conf‌lict of laws issues. It is an axiom worth remembering that while ART can make previously incon-

ceivable babies, only Family Law can make a legally recognized family, including def‌ining the

resulting rights and responsibilities between and amongst the various involved individuals and

resulting offspring.

In short, these remarkable medical advances have had a transformational impact not only on repro-

ductive medicine, but on the modern family and the law writ large, impacting a myriad of other areas

of legal practice—including Estate Planning, Contract, Health, Constitutional, Criminal, Discrimina-

tion, Tort Law and, for international arrangements, Immigration and Citizenship laws. This ar ticle

strives to examine the historical context, present impact, and future trends of the ARTs and the Law.

II. “A Rose by any Other Name…?”TOWARDS A SHARED UNDERSTANDING OF ART

VOCABULARY

An essential starting point in any medico-legal analysis of the ARTs is recognizing the need for

a shared understanding of essential terms and concepts and, where possible, a shared vocabulary.

Crockin et al./THE HISTORY AND FUTURE TRENDS OF ART MEDICINE AND LAW 23