Assisted Reproductive Technology (ART) Law
Assisted Reproductive Technology (“ART”) Law & Family Formation Law Legal Services
John has provided legal services to his family formation law clients since 2003 when this area of the law was in its infancy. He represents both domestic and international clients who seeks his legal expertise with surrogacy arrangements and donation agreements. He represents intended parents as well as gestational and genetic (traditional) surrogates. His donor clients include recipient intended parents and the donors of ova, sperm and embryos (called “gametes”). The donation agreements can be either anonymous (closed) or non-anonymous (open). John has drafted and reviewed over two thousand family formation contracts since 2003. His ART law experience and expertise are well known in the Colorado assisted reproductive technology clinical and legal communities.
John represents heterosexual and LGBTQ clients. He has been admitted by examination to practice law in Colorado and Illinois. His license in Illinois is inactive currently due to his active practice being based in Colorado. He also previously held an active license to practice law in Pennsylvania for over 10 years during his tenure as Senior Legal Counsel at Allegheny Health, Education & Research Foundation, based in Pittsburgh and Philadelphia.
John’s assisted clients include intended parents, surrogates or gestational carriers, ova donors, sperm donors, and embryo donors. John’s intended parent clients are single, married (hetero and same sex), committed partners and unmarried single intended parents.
John’s ART practice includes the following areas for both intended parents and donors:
- Surrogacy contracts (gestational and genetic)
- Egg donation contracts
- Embryo donation contracts
- Sperm donation contracts
- Pre and post birth parentage orders which establish the intended parents’ parental rights and obligations
- Agency agreement review
- Estate Planning for documents required by surrogacy agreements
- Clinic document review
Insurance & Financial Issues
Legal Services Donation Agreements – the donation of reproductive material
John drafts donation agreements for the recipient parents (or parent) and reviews donation agreements for the donors. These agreements include the donation of gametes including sperm, ova and also the donation of embryos to recipient parents. Most donation agreements are anonymous which means the Parties’ identities cannot be disclosed to each other. However, the trend is toward more open or non-anonymous agreements.
These agreements establish clearly the intended parents’ parental rights and obligations. They also firmly establish that the donors have no parental rights and no parental obligations including financial support obligations. These are the primary purposes of donation agreements.
The ova donation agreement provides that if the ova donor suffers medical complications caused by the retrieval procedure or stimulant medications administered to her, she will be protected by accident insurance. The intended parents are required to purchase medical complications insurance for the ova donor so that the donor is financially protected against the possibility of expensive medical treatment due to medical complications. The ova donation agreement also discusses the intended parents’ financial obligations to the ova donor including the donation fee to be paid to her and the reimbursement of expenses including travel and other expenses such as child-care and lost wages.
An important issue included in all ova donation agreements concerns the disposition of embryos after the intended parents have completed their family formation. In this instance, the Intended Parents must document how such embryos can be used in the future. Typically, the dispositional choices are medical research, donation for reproductive purposes, or allowing the embryos to thaw. The Agreement also discusses what happens to the retrieved ova if either or both recipient parents die before and after IVF.
A well drafted ova donation agreement as well as sperm donation agreement protect the Parties and ensure that parental rights are properly established and protected, and that parental obligations are stated clearly. The sperm donor cannot be paid a fee though the ova donor can receive financial compensation for her pain and suffering. It should be noted that a federal court has held that the compensation paid to an ova donor is taxable.
Both the intended parents and gamete donor must be represented by separate independent legal counsel skilled and experienced in ART law. Most clinics require this and it is in the best interests of all Parties. After the donation agreement has been finalized and signed by the Parties, a legal clearance letter is then delivered to the assisted reproduction clinic by the drafting attorney, usually the attorney for the recipient intended parents. This confirms that a valid legally enforceable agreement has been signed by the Parties’ and that the clinic can proceed with the necessary clinical procedures including the ova retrieval.
Finally, the donation agreement includes a discussion of Colorado’s assisted reproduction statute and how it protects the Parties’ legal rights and obligations. Court proceedings are not required to validate donation agreements in Colorado. They are however required for surrogacy agreements in Colorado.
Surrogacy – Legal Services
John drafts surrogacy agreements for his intended parent clients and will review the contract when he represents and advises his surrogate clients. In a Gestational Surrogacy Agreement, the surrogate’s reproductive material has not been used to form the embryo she carries. The embryo she carries can be formed with gametes from both or either of the intended parents, or with gametes from donors including either an ova donor or sperm donor or both. In a genetic surrogacy (also called traditional surrogacy) the surrogate’s ova are inseminated with either the Intended Father’s gametes, and thus the child she carries is formed with her reproductive material.
Colorado’s recently enacted Colorado Surrogacy Agreement Act requires that the surrogate be represented by independent legal counsel throughout the surrogacy arrangement. It also requires that each Intended Parent and the surrogate have a medical evaluation completed which related to the surrogacy arrangement. The surrogate is also required to have a mental health evaluation. These legal requirements must be satisfied before the surrogacy contract can be signed by the Parties.
The surrogacy agreement is complex and typically lengthy and usually at least thirty pages in length. It includes a discussion of the Parties’ rights and obligations including parental, financial and other obligations. Important provisions customarily include:
- Fee to be paid to the surrogate
- Lost wages to be paid to the surrogate if she cannot work for reasons related to her pregnancy
- Child-care reimbursement payable to the surrogate for reasons related to the surrogacy
- Health care insurance coverage of the surrogate’s pregnancy related expenses
- Life insurance
- Escrow funding
- Disability insurance
In short, the surrogacy contract establishes and discusses the Parties’ rights and obligations in detail. John’s extensive years of ART law experience protect his clients whether he represents the intended parents or the surrogate.
The Parentage Order
After the surrogacy contract is fully signed and the legal clearance letter has been delivered to the reproductive clinic by legal counsel for the intended parents, the legal activity ends until it is determined that the surrogate is pregnant. Thereafter, and usually at about week 18 of the pregnancy, the intended parents’ attorney will draft a petition for parentage and numerous affidavits and court documents for the Parties to sign before they are filed with the Court.
The Petition for Parentage which is signed by the intended parents asks the state district court to issue a Pre-birth Parentage Order (“PBO”) which adjudicates the intended parents as the legal parents of the child to be delivered by the surrogate. The PBO will also state that the surrogate and her husband (or partner) are not the legal parents of the child and that they have no parental rights and obligations for the child.
The PBO orders Colorado Vital Records to issue a birth certificate wherein the intended parents are to be stated in the birth certificate as the child’s parents.
The parentage order can be issued pre-birth or post birth. For international parents, there may be important reasons related to the laws of their home country which require a post birth parentage order.
It is critically important that international surrogacy intended parents consult with both family law and immigration law legal counsel in their home country. This should be done before the surrogacy contract is negotiated and signed. Many countries in Europe do not recognize U.S. surrogacy laws and therefore special care and attention are especially important.
John will contact the birthing hospital and speak with the Social Worker in Labor and Delivery to advise her of the impending surrogate birth. He usually does this 2-3 weeks before the expected date of birth. He will provide a copy of the PBO by email to L&D and will work with the birthing hospital to address any special concerns regarding the surrogate birth such as health insurance for the baby. If the intended parents are traveling a long distance to the birthing hospital, John may need to draft a medical power of attorney for a relative or friend of the intended parents to consent to the child’s medical care if the intended parents one or more days after the child’s birth.
Client legal costs
John’s billing is on a flat or fixed fee basis to ensure his client’s fee remain reasonable and fixed. Hourly billing is undertaken only on an exceptional basis. The intended parents pay the legal costs of their donors and surrogates.