Assisted reproduction technologies: parenthood and the law

Different assisted reproductive technology options have different legal implications.

As scientific advancements continue in the field of fertility science, our definition of parentage, specifically what it means to legally be a parent, as well as the possibility for parenthood where it never existed before, have all evolved. Technology such as cryogenics and laboratory in vitro fertilization now make it possible for egg and sperm donations from multiple parties to be combined into one embryo that is then carried by one of those parties or by someone else.

With these developments has to come not only a social broadening in the traditional understanding of what it means to be a parent, but also the ethical and legal implications of the same. This article is designed to introduce you to various different assisted reproductive technology options and bring up potential legal repercussions that could flow from various choices.

In vitro fertilization and donors

The term “in vitro fertilization” refers to the fertilization of an egg with a sperm outside the body. The egg can come from the person who will be gestating the baby, or it could come from a third party (the intended mother, a relative, friend or stranger are all possible). The sperm can come from a spouse or from a third party (similarly, the intended father, a relative, friend or stranger are all options).

Legally, the parentage of babies that come from donated genetic material is decided at the state level, either through state legislation defining parentage or by the state district court interpreting such legislation (or the lack thereof).

This means that the Colorado legislature will be the ones to initially decide if babies born in our state from donated eggs and sperm will be considered to be the children of their genetic “donors” or the ones who intended to become parents and sought assistance from medical experts. Specifically, Colorado has decided that a parent-child relationship does not exist between a third-party egg or sperm donor and “a child of assisted reproduction.” (See Colorado Revised Statutes §§ 15-11-120(2), 19-1-103(1) and 19-4-106.) Where there is a dispute over whether a person has acted as a “donor” or not, the district court will review the facts to make a determination of parentage. (See, e.g., In the Interest of R.C., 775 P.2d 27 (Colo. 1989)(known semen donor is legal parent where he and the unmarried recipient agree that the known donor would have parental rights and expressly agreed at the time of the insemination that the donor would be treated as the father of any child so conceived); In re Parental Responsibilities of A.R.L., 318 P.3d 581 (Colo. Ct. App. 2013)( in the context of a same-sex relationship, a child may have two legal mothers such that the known donor is not a parent).

It is significant that starting in 2025, pursuant to the Donor-Conceived Persons and Families of Donor Conceived Person Protection Act, Colorado will become the first state to prohibit closed sperm, egg or embryo donations.  The intent of this new law is to provided donor-conceived persons with identifying information and family medical history of the gamete donors used in conception.

 Gestational Surrogacy and Genetic (Traditional) Surrogacy

Gestational carrier arrangements involve a woman agreeing to carry a non-genetic child to birth for an intended parent or intended parents. This could involve wholly donated genetic material (from two third parties), donated eggs with a spouse’s sperm, or donated sperm with the spouse’s eggs. Genetic or traditional surrogacy means an individual who is not an intended parent and who agrees to become pregnant through assisted reproduction using their own donated gametes. Prior to the embryo implementation or intrauterine insemination, it is critically important to have a comprehensive  Agreement to set forth clearly who is the “intended parent.”

In May 2021, Colorado passed the Colorado Surrogacy Agreement Act (the “Act”) which is found under C.R.S. 19-4.5-101 et seq. The Act establishes consistent standards and procedural safeguards to promote the best interests of the children who are born as a result of both gestational and traditional surrogacy agreements executed pursuant to the Act.

Under this Act, Colorado law supports parents that are single, unmarried or married, and of any sexual orientation. Intended Parents may use their own sperm or eggs or a donor, or they may use an embryo that is unrelated to them.

The Act has numerous eligibility requirements including:

• Intended Parents and the Gestational Carrier or Traditional Surrogate must be over the age of 21;
• Gestational Carrier or Traditional Surrogate must have given birth to at least one child;
• Intended Parents and the Gestational Carrier or Traditional Surrogate must complete a medical evaluation;
• Gestational Carrier or Traditional Surrogate must complete a mental health consultation; and
• Each party must have independent legal representation by an attorney licensed in the State of Colorado.

The Parties must enter into a Surrogacy Agreement.  The Surrogacy Agreement must meet the following requirements:

• At least one party must be a resident of Colorado, the birth must occur in Colorado, or the assisted reproduction performed pursuant to the Surrogacy Agreement must occur in Colorado;
• The Intended Parent or Parents, the Gestational Carrier or Traditional Surrogate, and the Surrogate’s Spouse must all be a party to the agreement;
• The Agreement must be signed by all parties in front of a notary;
• The Agreement must be executed before a medical procedure occurs related to the Surrogacy Agreement other than the medical work-up.

So long as all requirements under the Act have been followed, intended parents will typically seek a pre-birth parentage order from the Colorado District Court establishing that they are the legal parents of the child upon delivery and that the surrogate has no legal rights nor responsibilities.

Laws in this area are evolving almost as quickly as the technology itself, and oftentimes decisions about parentage or ethical considerations are case- and fact-specific. To learn more about the relevant legal issues concerning assistive reproductive technologies, including making sure that gestational carrier and traditional agreements are legally binding and that the proper intended parents will be designated the legal parents, contact an experienced family attorney at the Colorado law offices of Grob & Eirich, LLC. At Grob & Eirich, LLC, we are dedicated to advancing and protecting the interests of intended parents by:

• Offering informative, advisory consultations that cover all options, address issues you may not have considered, and allow time to discuss questions and concerns;
• Drafting comprehensive contracts to protect your rights in surrogacy-related cases and egg, embryo and semen donation matters;
• Providing referrals to qualified infertility clinics, surrogacy agencies and egg donation agencies;
• Identifying appropriate gestational surrogates through agency referrals or other means;
• Assisting with issues such as communication during gestation, evaluating the surrogate’s ability to detach from the child she is carrying on your behalf prior to matching, and views on key issues such as abortion and selective reduction;
• Addressing health insurance considerations, escrow matters, compensation, and all other aspects critical to protection of your financial interests;
• Providing guidance and representation in every aspect of securing your legal parental status, typically pre-birth, in the most timely and legally irrevocable manner available; and
• Expediting a child’s birth certificate and United States passport such that international clients can return home with the child expeditiously following the child’s birth in Colorado.

All cases at Grob & Eirich, LLC, are evaluated by a lawyer who is a Fellow of the American Academy of Assisted Reproductive Technology attorneys and who has handled cases involving single parents, heterosexual married couples, unmarried couples and same-sex couples alike. Call today at 303-816-8147, or send an email.