Photograph of surrogate showing parents-to-be ultrasound pictures

What happens when assisted reproductive technology agreements break down?

By Sarah Alawi

My name is Sarah Alawi; I’m an LLM Student at Harvard Law School, from New Zealand. I am excited to contribute to the Petrie-Flom Blog as a Petrie-Flom Student Fellow. My area of interest is assisted reproductive technology (ART), although I intend to use this forum to write on a broad range of medico-legal issues in the bioethics sphere. This post introduces my specific research interest in ART disputes, and concludes with a recommendation for anyone considering ART.

ART is a growth industry and yet, despite the sophistication of new birth technologies, its use depends on functioning human relationships. Commonly, parties try to define these relationships using pre-conception ART agreements. During my fellowship at the Petrie-Flom Center, I intend to write a thesis on what should happen, in terms of the parties’ rights at law, when three common forms of ART agreements break down:

 

1.     Gestational Surrogacy: Gestational surrogacy is the preferred option for heterosexual couples where the woman cannot gestate a child. Gestational surrogacy involves three parties: (1) the intended parents, who are the genetic parents to the resulting child, and (2) the surrogate mother. What should happen if the surrogate mother changes her mind about relinquishing the resulting child? In some states and countries (like New Zealand), the intended parents have no redress at all. Check out my article in the New Zealand Law Review on why I think this law needs to change: “Gestational Surrogacy Disputes: A Proposed Cause of Action for Intended Parents in New Zealand.” The question then becomes: What redress should be available to intended parents if the surrogate mother does not uphold the terms of the prior-conception agreement?

2.     Gamete Donation: Gamete donation is an increasingly popular choice for same-sex couples and single men or women. Known donor conception is becoming increasingly common with pre-conception agreements in place for three person parenting arrangements. Can a genetic donor be accorded status as a third parent where, because of a relationship breakdown, the other parties no longer wish to abide by the pre-conception agreement?

3.     Fertility preservation: People are increasingly choosing to freeze eggs or embryos for various reasons, including to freeze their “biological clocks.” Freezing of embryos (cryopreservation) is a preferred choice for heterosexual couples because it’s believed that the chances of success are higher. Couples typically enter into prior-conception agreements for the disposition of the frozen embryos if the relationship ends. But what should happen when one party insists on unilaterally using the embryo when the relationship has ended?

ART is an important topic to study; at some point in our lives, most of us will either look to ART or know of someone who will. It’s important that our legal system responds fairly to the likely issues that will come up in ART disputes so that people are able to plan ahead with certainty.    

Stay tuned for updates on how my research into possible solutions develops. For now, my key recommendation for anyone considering the use of ART is to seek legal advice and to ensure that you have a carefully thought-out and well-written prior-conception agreement. Bear in mind, though, that—depending on the jurisdiction you are from—not all types of pre-conception agreements (and sometimes, none at all) are enforceable at law. Keep in mind, too, that ART is a relatively new industry with which our legal system is still coming to grips. It’s in a state of flux and the legal parameters will likely change in the near future. It’s important, therefore, that you take steps to protect yourself by asking the right questions to your advisors: what are the legal ramifications if things don’t go to plan?

Sarah Alawi

Sarah Alawi

Sarah graduated with a BA/LLB(Hons) from The University of Auckland. She then Judges’ Clerked at the High Court of New Zealand for two years, and went on to work as a junior litigator primarily acting on a broad range of commercial disputes. Sarah’s research interest is on assisted reproductive technology, and intends this area of law to be a key part of her practice in future. During her Fellowship, Sarah will write on the enforceability and interpretation of pre-conception agreements after relationship breakdowns.

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