Assisted Reproductive Technologies

ARTs raise a variety of complex legal issues. For example, with ARTs it is now possible for a child to have three biologically related parents—the man who provides the sperm, the woman who provides the egg, and the woman who gestates the child and gives birth—as well as one or more additional social parents who intend to raise the child after it is born. If conflicts arise among these individuals, how should the law apportion their respective rights and responsibilities? Some courts have held that parental rights should be based on the intent of the parties at the time of conception; thus, when one woman gives birth to a child conceived with another woman's egg, the woman who intended to act as the child's parent will be considered the mother. Other courts have rejected this intent-based approach in favor of clear rules favoring either genetic or gestational bonds. In many jurisdictions, the law in this area remains unsettled (Garrison 2000).

Disputes also can arise over the disposition of cryopreserved gametes and embryos. When individuals die before their frozen gametes or embryos have been used, should a surviving spouse or partner have the right to use the frozen specimens without the donor's explicit consent? When a couple freezes their embryos for future use and then divorces, may one partner use the embryos to have a child over the other partner's objection? Internationally, courts have taken widely differing approaches to these issues. To avoid disputes over frozen gametes and embryos, many authorities suggest that people should leave written instructions regarding their future disposition wishes. However, some courts have suggested that, even when such instructions exist, individuals retain the right to change their minds at a later date (Coleman 1999).

The law also governs the relationship between ART practitioners and the patients they serve. Physicians have been accused of understating the risks associated with ARTs, particularly the likelihood and consequences of multiple gestation, as well as overstating the likelihood that treatment will result in a live birth. Such practices may form the basis for legal claims of misrepresentation or failure to obtain informed consent. The law also may constrain the exercise of discretion by physicians in their selection of patients. For example, physicians who are unwilling to provide ARTs to unmarried women or HIV-positive patients may find their decisions challenged under antidiscrimination laws (New York State Task Force on Life and the Law 1998).