Making Babies the Modern Way

Written by Hannibal Heredia Tuesday, October 11 2011

Advances in reproductive medicine have brought several options to infertile couples who desire to start a family. These advances include gestational and donor surrogates; in vitro fertilization (IVF) and artificial insemination; egg and embryo donation. These reproductive technologies present specific legal issues with hardly any legislation to address these issues. The following is a brief outline of the different types of assisted reproductive technologies and the role of the attorney in each scenario.

Types of Assisted Reproductive Technology

Gestational Surrogates – The use of gestational surrogates often occurs where a woman may have physiological issues that adversely affect her ability to carry a pregnancy to term. The gestational surrogate does not contribute her genetic material to the creation of the embryo; the egg and sperm originate from the intended parents. The pregnancy is achieved through IVF and embryo transfer. A number of the embryos are implanted in the uterus of the gestational surrogate. The gestational surrogate then carries and delivers the baby, but does not have a direct genetic link to the baby.

As the baby is genetically related to the intended parents, the child is presumed to be the child of the intended parents even as it develops in the surrogate. Upon birth, the surrogate surrenders the child or children to the intended parents. At this point the intended parents release the surrogate and her husband (if any) from all parental responsibility.

Artificial Insemination and the Surrogate – In this type of assisted reproductive technology, the surrogate contributes her own egg, which is usually fertilized by artificial inseminations. Hence, the resulting embryo contains the genetic material of the surrogate.

Egg and Embryo Donation – In the case where it has been medically determined that the intended mother’s eggs are not suitable for reproduction, advances in reproductive technology provide egg and embryo donation as an option.

Egg donors can be relatives or another female who is well known by the parents. Some parents bring their own designated donors, while other patients rely on the services of often anonymous donors typically recruited by egg donor agencies or, sometimes, IVF programs. Once the egg donor is recruited, she undergoes the IVF therapy, followed by the egg retrieval procedure. After retrieval, the ova are handed over to the recipient couple, fertilized in the laboratory by the sperm of the male partner, and, after several days, the resulting embryo(s) is placed in the uterus of the recipient. Here half of the genetic material (the egg) has been donated.

The process of embryo donation begins with IVF of donated eggs. The IVF often results in a number of frozen, unused embryos after the woman for whom they were originally created has successfully carried one or more pregnancies to term. In embryo donation, these extra embryos are given to other couples or women for transfer with the goal of producing a successful pregnancy. Often in these cases, 100 percent of the genetic material has been donated.

The Legal Process

While each method of assisted reproductive technology results in different legal issues, the role of the attorney advocate generally is as follows:

Contracts – A contract between the prospective parents and the surrogate or donor is necessary to define the responsibilities throughout the entire process. Most fertility clinics will require that a contract be executed before the appropriate use of assisted reproductive technology is employed.

Opinion Letter – Often the fertility clinic requires an attorney’s opinion letter sanctioning the execution of the contract.

Medical Affidavit – Prepared by the reproductive assistance clinic, it is needed to outline to the court the genetic parentage of the child.

Going to Court – Why does one have to even go to court? Each form of assisted reproductive technology presents a different legal issue depending on either the genetic material involved or whether a third party is to give birth to the child. Certain documents will be filed with the court, and these are sealed.

This is a friendly process. The hearings are held outside of a public forum, sometimes in the judge’s chambers. In the case of a gestational surrogate, the “lawsuit” and the resulting hearing are necessary to rebut the usual presumption that the pregnant woman (surrogate) is the mother of the child she is to give birth to.

In addition, if the surrogate is married, the legal presumption that her husband is the father of the child needs to be rebutted as well. In addition, the resulting order sets out that the intended parents are the genetic and legal parents of the child to be born, that the surrogate and her husband will have no parental rights or obligations to raise the child, and that the intended parents will make elective medical decisions on the behalf of the child at its birth. The order is sealed with the court, and so is the file.

The court orders that the birth certificates will issue with the intended father as declared father of the child and the intended mother as declared mother of the child. Since the genetic material is 100 percent of the intended parents, no adoption in necessary after the above described process is completed.

When the surrogate is artificially inseminated, then the court process is to establish the fatherhood of the child as well as to overcome the legal presumption that if the surrogate was married either at the time of conception or the time of delivery, that her husband is the father of the child. This process allows the child to leave the hospital upon its birth with the child's declared father. The resulting order will designate the proper rights and obligations as in the gestational surrogacy order described above.

Because only the sperm is that of the intended parents, a “stepparent” adoption will follow after the birth of the child. The wife of the sperm donor replaces the surrogate as the mother of the child, and a replacement birth certificate issues.

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Raised in Alabama, Hannibal F. Heredia, moved to Atlanta after graduating law school. He has practiced family law almost exclusively since 1994. After six years with Georgia Legal Services, Heredia joined the Cartersville, Ga., law firm of Perrotta, Cahn and Prieto, P.C. in 2000, where he was part of the largest family law practice in Northwest Georgia. In 2005, he was named managing partner of Perrotta, Cahn and Prieto, P.C. In 2006, he founded the firm of Hedgepeth & Heredia. In addition to practicing in all areas of the firm, Heredia also has extensive knowledge of surrogacy law as it exists in Georgia. Being the child of Peruvian parents, Heredia is fluent in Spanish. He is married to Angela Fox Heredia and they have one daughter.