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Surrogacy and Artificial Conception

Advances in science and technology have meant wonderful things for eager parents struggling to conceive their children. There are now more avenues than ever before for people to build their families in a way that works for their unique needs and circumstances, like surrogacy and artificial conception.

But while these methods are making it possible for more people to have children, they often come with additional legal considerations. When you decide to work with a surrogate or use another artificial conception method, you need to understand what your rights and options are so you can protect your growing family.

Each jurisdiction will have its own rules and regulations that govern legal reproductive matters, so it's important to understand the laws specific to your state. But there are a few general concepts that can help guide you.

What Are the Most Common Methods of Artificial Conception?

Artificial conception is an umbrella term that includes some of the most common ways of conceiving a baby when a couple struggles with infertility or other health issues that make natural conception more challenging.

  • Artificial insemination is usually done by a doctor, though people can try it on their own in some circumstances. It usually involves a prospective parent using sperm from a donor or their partner specifically placed, usually in the uterus, to increase chances of getting pregnant. This is one of the most affordable methods of artificial conception.
  • In vitro fertilization (IVF) is a more involved, and more expensive, process. An egg is taken from one parent or a donor, then fertilized with the sperm from the other parent or a donor, outside of the womb. Embryos grow in a lab and then implanted into the uterus at an early stage of development.
  • Surrogacy often involves IVF to create an embryo from one or both parents or a donor that is then implanted in someone other than one of the parents. A few states will allow a surrogate to use their own eggs through artificial insemination. The surrogate carries the child, but is usually not considered a parent after the birth.

Each of these, and other forms of artificial conception, can require contracts, high prices, and specific insurance policies.

What are My Legal Rights When Using a Donor?

Whether you're using donated sperm, eggs, or IVF embryos, you may have legal considerations. Some states have a baseline rule that donors don't have parentage rights of any children conceived through their donation. However, some states will allow donors to claim parentage, even getting visitation hours with the child. There have been some cases where sperm donors were even required to pay child support. State laws can provide remedies to these issues through specific procedures. For example, in some states where donor parentage is allowed, having a physician collect the donation from the donor and then provide it to the parents can break the chain of parentage. Donors can be anonymous. Other donor agreements can be "open," where parents and donors agree to keep in touch after the child is born, or that will allow the child to reach out to the donor after the child's 18th birthday.

What are My Legal Rights When Using a Surrogate?

When you use a surrogate to carry your child, a contract will be absolutely essential, if your state allows them. The parent(s) and the surrogate each have their own rights that will need be addressed. With so many complex, important, and potentially emotional elements of surrogacy, all parties need legal boundaries and protections. Common issues to cover in a surrogacy agreement include, but are not limited to:

  • Establishment of parental rights
  • Compensation for the surrogate
  • The surrogate's health insurance and medical costs
  • The birthing plan

What is the Uniform Parentage Act?

The Uniform Parentage Act (UPA), last updated in 2017, outlines certain rules and procedures that states should follow when determining who a child's parents are. Not all states follow this act exactly, however. For example, the UPA guidelines say that a surrogacy agreement can state that surrogates have no claim of parentage, but in some states, such agreements are generally "void."The UPA and many states require parents and a surrogate to pay for their own separate lawyer to ensure their rights and the agreement. Using professional legal representation can help you make a stronger contract that will protect your parentage.

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