Legal Rights of Spouses in Assisted Reproductive Technology (ART)

Couples or singles who want to have a child have many options thanks to scientific fertility developments. People with infertility issues can use medical procedures and medication to increase their chances of having a child. This includes assisted reproductive technology (ART).

As with any new technology, there are questions about the rights of biological parents and donors. Some states are even passing laws that give embryos rights. This is a developing area of law and can depend on state laws. For questions about your legal rights related to assisted reproductive technology, talk to a local family law attorney.

What Is Assisted Reproductive Technology?

Assisted reproductive technology (ART) is medical technology and advancement that addresses infertility problems. Same-sex couples also use ART to have a child. If there are issues fertilizing an egg with sperm (gametes), reproductive medicine technology can complete the process.

For example, one of the most common types of ART is in vitro fertilization. The egg is removed from the parent or donor’s ovaries. Sperm is combined with the egg to fertilize the egg. The fertilized egg (embryo) is then implanted into the fallopian tubes where it attaches. If successful, the embryo will grow into a child.

ART can involve a single person who wants a child or a couple. The couple can use sperm or eggs from both parents, one parent and a donor, or separate donors.

What Are Types of Assisted Reproductive Technology?

Assisted reproductive technology goes back decades. Common types of assisted reproductive technology include:

• In vitro fertilization (IVF)
• Embryo transfer
• Cryopreserved embryos and sperm
• Artificial insemination
• Donor embryo or gamete donation
• Fertility medication

Where Is Assisted Reproductive Technology Restricted?

Assisted reproductive technology law is evolving. In 2022, the Supreme Court overturned Roe v. Wade‘s long-established national right to an abortion. After the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization, states have restricted women’s right to abortion. Some states have also begun regulating assisted reproductive technology.

In February 2024, the Alabama Supreme Court decided that frozen embryos used in IVF and other fertility treatments are children. This has raised legal issues for fertility clinics and health insurance companies. Healthcare providers could face criminal charges for destroying an embryo even after the couple no longer needs the embryo.

Other states have proposed legislation that could also restrict fertility access. For current information on ART law where you live, talk to an experienced lawyer in your state.

Who Are the Legal Parents of Children Born Using ART?

Generally, the genetic parents of a child are the legal parents. However, with ART, donor genetic material is used to conceive the child. Donors may be unknown or have no interest in being the legal guardians. Intended parents have to take steps to make sure they are the legal parents of their child. If both intended parents are on the child’s birth certificate, this is usually enough to make them the legal parents.

To make sure one or both intended parents have legal parental protections, you have to take certain steps. This includes:

• Inclusion on the birth certificate
• Proper donor agreement forms
• Proper surrogacy contracts

For a couple, it isn’t enough that the birth parent is a legal parent. In most states, the married couple’s partner is the presumed other legal parent. But in a divorce or separation, the biological parent could challenge the partner’s legal parentage.

Does the Non-Biological Spouse Have Rights?

In opposite-sex or same-sex marriages, both spouses have to follow the proper steps to protect their parenting rights. It’s not enough for one parent to become the legal guardian. The couple could break up, complicating legal parentage.

There have been cases where the non-biological spouse loses parental rights over their child because they didn’t follow the state process for artificial insemination or ART. To protect your rights as the legal parent for your non-biological child, talk to a family law lawyer for legal advice.

Do Egg Donors or Sperm Donors Have Rights With Their Biological Children?

In most cases, egg donors and sperm donors don’t have any legal rights over children conceived with their eggs or sperm. In donor agreements, donors sign away their rights when making donations. This includes any genetic parent claims or child support claims. If you want sperm donation or egg donation, use regulated agencies and health care providers. There are risks associated with using informal donors.

Using a surrogate is another infertility option. A surrogate carries the child for someone else to be the legal parents after the child’s birth. Surrogacy agreements generally outline the legal rights of the intended parents and the surrogate carrier. In most situations, the surrogate mother does not have parental rights over the child.

How Can a Reproductive Rights Lawyer Help?

The legal rights of spouses and parents using assisted reproductive technology are not always clear. States are still coming to terms with what it means to be a legal parent compared to a biological parent. The laws in many states are continuing to change. An experienced family lawyer can explain your legal options. They can also help review legal agreements and protect your parenting rights.

For more information about protecting your rights with the use of ART, contact a family law lawyer.