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Navigating the Complex Challenges of ART With An Assisted Reproductive Technology Lawyer

On Behalf of | Oct 23, 2023 | Reproductive Law

Law & Ethics Surrounding Assisted Reproductive Technology(ART)

According to the CDC, 2.3% of babies born in the US every year are conceived using Assisted Reproductive Technology (ART). Out of these thousands of intended parents, a handful of them will experience legal challenges throughout the process. And even more of them are vulnerable to challenges from their surrogates or other relevant parties down the road.

Assisted Reproductive Technologies (ART) have played a pivotal role in helping thousands of families realize their dreams of parenthood, while also raising a myriad of complex legal and ethical challenges. The United States stands as a representative of diversity and wide availability in ART services, offering invaluable insights to help us understand and address these challenges.

Intended parents typically face such challenges when they’re not cautious about choosing the right fertility clinic and legitimizing the fertility process under the law. If they understood the fertility process better, they would realize that there are significant commitments at play. The intended parents, the fertility clinic, and possibly the providers of an egg donation or donor sperm all need to come to an agreement.

This article from the Law Offices of Lei will help you understand the challenges involved in ART, and how the assistance of a lawyer can help you overcome them.

What Is The Meaning Of Assisted Reproductive Technology?

Assisted Reproductive Technology (ART) is not a single technology. Rather, ART is a collection of medical procedures used to address infertility. As the field has advanced significantly over the years, we’ve identified 5 different types of ART. Each technology helps couples solve a specific fertility problem that they’ve been having, giving them a practical and valuable opportunity.

The Five Types Of Assisted Reproductive Technologies

Most are aware of IVF, but there are 4 more unique options to help couples have children.

  • In Vitro Fertilization (IVF): Eggs are fertilized by sperm in a laboratory, and the resulting embryos are transferred to the uterus.
  • Intracytoplasmic Sperm Injection (ICSI): According to the Cleveland Clinic, ICSI is when a single sperm is injected directly into an egg, commonly used when male infertility is a factor.
  • Zygote Intrafallopian Transfer (ZIFT): Here, fertilization occurs in the laboratory, and the zygotes are transferred to the fallopian tubes afterward.
  • Frozen Embryo Transfer (FET): This is a procedure wherein cryopreserved embryos from a previous IVF cycle are thawed and transferred to the woman’s uterus for potential pregnancy.

Which Assisted Reproduction Technology Should You Choose?

The right choice of ART is highly dependent on your own unique situation as a couple. In any case, ART lawyers and fertility clinics are valuable advisors, given their experience treating clients like yourself. In light of our collaboration with fertility clinics across the US, we’ve developed some criteria to help you make your choice:

  • What is the cause of infertility? This is the first clue to point you to the correct solution. For instance, IVF might be preferred for blocked fallopian tubes, while ICSI is often chosen for severe male infertility.
  • The Woman’s Ovarian Reserve: After a certain age, a woman’s ovarian reserve, which refers to the quantity and quality of her eggs, will gradually decrease. In this case, a woman with a low ovarian reserve might benefit substantially from IVF.
  • Do you have a history of ART? Knowing which previous methods have been successful or unsuccessful allows you to choose the right method the next time. For instance, if IVF fails, you might try egg donors the next time.
  • What’s your budget? Fertility treatment can be expensive for some couples. You might choose the FET method over ICSI for this reason.
  • Success Rates: Unfortunately, not every ART method is equal. Seeing that this process will transform your life, you likely want to choose the method with the highest success rate that is appropriate for you.
  • Consult With a Fertility Specialist You should consult with a fertility specialist first to undergo an assessment and receive their recommendation.
  • Is there anything else preventing you from choosing a specific method? As a couple, you might have certain ethical reservations that influence your choice.

The Benefits Of Assisted Reproduction Technology For Intended Parents

Overcome Infertility

Since ART can solve a wide range of fertility issues, both in men and women, this is the most obvious benefit. Of course, the methodology varies. Some techniques will increase the chances of fertility in the woman, IVF is an example, while others involve a sperm donation because the man is infertile.

Options For Single Individuals And Same-Sex Couples

Given that some ART processes involve surrogacy and sperm donation, many same-sex couples and singles are now empowered to have children.

Genetic Screening

For many couples, this is a pretty big deal. There are all sorts of genetic mutations possible, over 3% of babies are born with birth defects every year in the US. Being able to screen embryos with technology like Preimplantation Genetic Diagnosis enables couples to have a choice on these important questions before implantation.

Family Planning

Those who want to continue their careers at their own pace, or just aren’t ready to have children yet find great value in ART. It enables these individuals to have children later in life.

Reduce The Chances of Miscarriage

It is unfortunate that the miscarriage rate gets higher as women age. By choosing healthy embryos, women can reduce the chances of miscarriage. Note that this applies to only certain types of ART.

Common Challenges In Assisted Reproduction

Ethical Challenges

Some people have no problem with assisted reproduction, others are opposed, and for some, the debate around fertility technology is nuanced. A common critique of techniques like IVF is that this strategy is akin to “playing god”, which many cultures and religions take issue with.

A common critique of gene-editing technologies is that they allow parents to “design” their offspring. In the US, the law allows parents to select the sex of their children at birth, certain countries, such as Canada, do not permit this practice. For some parents, the pressure to choose the gender of their baby is too much for them, so they leave it up to chance.

  • Starting Point of Life: ART has ignited debates about when life begins, a profound philosophical and ethical question. Different religions and cultures have varying viewpoints on this, directly influencing the acceptance of ART techniques.
  • Genetic Editing: The development of gene-editing technologies like CRISPR has raised serious ethical concerns about whether humanity should “design” its offspring.
  • Commercialization of Reproduction: The utilization of egg and sperm donation, as well as surrogacy, has sparked debates about the potential commodification of reproductive processes.

Legal Challenges

Think of it this way, whenever you start your family, via marriage, or make additions to your family, via adoption, you have to get a lawyer involved. And the more you involve competent lawyers, the more airtight your agreement. Prenups are a perfect example when considering marriage.

Similarly, you should enter into a legally binding contract whenever you choose a reproductive technology. Contract examples include surrogacy contracts, where the egg donor and intended parents enter into an agreement that outlines each party’s rights and responsibilities. When lawyers make these documents, clear and explicit, they prevent potential disputes in the future.

Better yet, you should define the legal status of the children who are born through ART with their biological and legal parents. You’ll have to consider things like inheritance, nationality rights, and much more.

  • Contracts and Agreements: A plethora of legal contracts and agreements are involved in surrogacy and reproductive donation. Ensuring these documents are clear, explicit, and legally binding is crucial to prevent potential disputes in the future.
  • Rights and Responsibilities of Donors: Determining the rights and responsibilities of reproductive donors is another complex issue. Laws vary significantly across states in the U.S., with some granting certain rights to donors, while others deny them outright.
  • Legal Status of Children: Defining the relationship between children born through ART and their biological or legal parents is a critical issue that needs to be addressed, involving custody, guardianship, inheritance rights, and nationality issues.

Access and Equity

  • ART technologies are often expensive and not affordable for all families, raising questions about who has the right to access these technologies and how to ensure equitable access to these services.
  • The U.S. healthcare insurance system does not always cover the costs related to ART, exacerbating financial burdens, particularly for low-income families.

Social and Cultural Impact

  • The use of ART has also impacted social structures and cultural views, challenging traditional definitions of parent-child relationships and sparking widespread discussions on family, parental rights, and reproductive freedom.
  • In some communities, ART remains a sensitive and controversial topic, potentially leading to discrimination and misunderstanding towards individuals and families who utilize these technologies.

Future Developments

  • As technology continues to advance and societal views evolve, new legal and ethical challenges will emerge in the field of ART. Legal professionals must be prepared to respond to these changes, providing accurate and timely legal advice to their clients.

How an ART Lawyer Can Help

Not hiring a competent lawyer in these scenarios is the worst thing you can do. Sure, you could say that hiring the wrong clinic is worse, but a lawyer has the experience to know which clinics are worth working with, and can help you navigate that part of the process as well.

Here are the main tasks of an ART lawyer.

  1. Drafting and Reviewing Contracts: Lawyers draft and review contracts for egg, sperm, or embryo donation. If you need a surrogacy agreement, they can provide that as well. These lawyers help clarify rights and set expectations across the board while adhering to the applicable laws in your state.
  2. Legal Guidance on Parental Rights: Unfortunately, sometimes the sperm donor or surrogate parent will take advantage of a lack of clarity in parenting rights if it is not established ahead of time. Lawyers provide counsel on setting your legal parentage and parental rights.
  3. Resolving Disputes: These lawyers mediate and resolve disputes that may arise between parties involved in ART, like conflicts over embryo custody or surrogacy arrangements. Note that even if there are no issues with the surrogate party, in cases where only one intended parent is the biological parent, issues can arise in the case of separation and divorce. It’s critical that you plan for these scenarios ahead of time.
  4. Advice on Insurance and Financial Matters: They can provide advice on insurance coverage and help you comprehend the financial implications of ART treatments.
  5. International ART Arrangements: For clients seeking ART services abroad, lawyers help navigate the complexities of international law. International arrangements are our specialty at Law Offices of Lei.

Use This Checklist To Choose The Right Lawyer

When you’re trying to decide which lawyer to go with, you must do your due diligence. Seriously, we’ve heard of horror stories where people’s embryos were held hostage after their clinic got shut down. Choosing the right lawyer will help you avoid the worst-case scenario. Here are some questions you can ask them to see if they’re worth their salt:

  1. Specialization in ART Law: “Can you describe your experience and specialization in Assisted Reproductive Technology law?”
  2. Experience and Track Record: “What is your track record in handling ART cases, and can you share some examples of your successes?” Make sure to read their case studies closely, and check user reviews to corroborate their competency.
  3. Knowledge of State and Federal Laws: “How familiar are you with the state and federal laws specific to ART in my region?”
  4. Understanding of Medical Aspects of ART: “What is your understanding of the medical procedures involved in ART, and how do you stay updated with these advancements?”
  5. Client Testimonials or References: “Can you provide any client testimonials or references from previous ART cases you have handled?”
  6. Clear Fee Structure: “Can you explain your fee structure? Will any additional costs might arise during the legal process?”
  7. Ethical Standards: “How will you maintain confidentiality in my case?”
  8. Availability and Accessibility: “What is your availability for consultations, and how will we handle urgent legal matters that may arise?”
  9. Professional Network: “Do you have a network of other professionals in the ART field, such as medical professionals or counselors, whom you collaborate with or refer to?” After asking this question, you can also do your due diligence on the various professionals and clinics that they recommend.

Get Started With Law Offices Of Lei

Once you’ve decided that ART is for you, you should begin to seek professional guidance immediately. Many intended parents make inaccurate assumptions about the ART process and begin planning their lives before confirming their assumptions.

Having dealt with dozens of ART cases at our practice, we’re the best choice for reliable recommendations in assisted reproduction. Reach out to us so you can understand your full range of options, and make an informed decision for your family.


While ART has played a significant role in aiding individuals in achieving their reproductive goals, it has also presented a range of complex legal and ethical issues. Legal professionals play a crucial role in this evolving field, requiring a deep sense of ethics and solid legal knowledge to help clients navigate this intricate legal landscape and ensure their rights are fully protected. As a global leader in providing and managing ART services, the U.S. holds its legal professionals to high standards, facing substantial responsibilities and challenges in this domain. Through continuous education, professional development, and adherence to ethical standards, legal professionals can ensure they provide the highest quality of service to their clients, while also promoting the healthy, ethical, and legal development of the ART field.


Disclaimer: This article is intended to provide general information about surrogacy law in California and does not constitute legal advice. Always consult with a qualified attorney if you’re considering pursuing a surrogacy arrangement.