Surrogacy and A.R.T.:
Helping to Create Families

A.R.T.

Legal Guidance for Assisted Reproductive Technologies

The ways in which families can now be created have increased significantly in the last few decades, thanks to medical advances, expansion of legal concepts of legal parenthood, and greater societal acceptance of diverse family structures. Adoption is no longer the only option for individuals and couples who cannot conceive on their own. The attorneys at NicholsonPham are leaders in this field.  We have the knowledge and experience to guide you through the complex medical and legal issues involved in assisted reproductive technology (ART) law throughout North Carolina. 

Call: (919) 883-4900

Types of A.R.T. Medical Procedures

SURROGACY & A.R.T. FAQs

I am a married lesbian.  My wife is willing to carry a child for us and we would like to use my eggs so that I am genetically connected to our child.  Is that medically possible in NC and if so, what are the legal implications?

Yes, this is called “ovum-sharing” and it can be medically done in NC.  There are, however, many legal issues. First, make sure your fertility clinic has forms for your particular situation.  Do not sign any forms stating you are just an egg donor. And although you both can be listed on your child’s birth certificate, there are still some unresolved issues as to whether one or both of you is a legal parent.  We at NicholsonPham recommend that you also do a stepparent adoption to insure that there is no question that both of you should be considered legal parents.

STEPPARENT ADOPTIONS

I am unable to conceive or get pregnant and my husband and I are considering using a surrogate to carry a child for us.  What are some of the issues we should think about and address in a surrogacy agreement?

There are many difficult and complicated issues that should be in every surrogacy agreement.  There should be provisions setting forth all the parties’ intentions as to who shall be the parents, what medical procedures will be used, how many times and over what period of time, what medical and mental health testing shall be done, and restrictions on what the surrogate can and can’t do during a pregnancy.  The harder issues are reaching agreements on abortion circumstances, selective reduction, and what happens if there is a dispute.

Can I use a surrogate in another state or even another country?

Yes, it is possible to contract with a surrogate outside of North Carolina, but only after a thorough investigation has been done to determine the laws of the other state or country.  This often requires working with an attorney in the other state or country. Laws regarding ART and parentage vary greatly and if not done properly, you could end up without parental rights or the ability to bring your child back home.  As a member of the national Academy of Adoption and Assisted Reproduction Attorneys, Sharon Thompson of our firm, can use the many resources of this prestigious organization and its network of national and international attorneys who are experts in ART law, to assist our clients with interstate and national surrogacy cases.

There are many ART methods by which a child might be conceived.  Intrauterine insemination (IUI) involves injecting sperm into a women’s uterus.  This method is often used by women who can carry a pregnancy but don’t have a male partner, such as single women or married lesbians, or by women whose male partner has fertility issues.

In vitro fertilization (IVF) involves the fertilization of an egg by sperm outside a woman’s body, resulting in the creation of an embryo which is then placed in the womb.  This is the most widely used ART method and is utilized by women who want to become pregnant themselves and by individuals or couples who use surrogates to carry a child for them.  The genetic material used to create an embryo may be from both of the individuals wanting to be parents, from only one of them, or all from anonymous sperm and egg donors.

Regardless of the medical procedure used, there are many complex legal issues that arise.  If you are working with a fertility clinic, there will be many forms to complete regarding what rights you may have, what rights you are giving up and what responsibilities and obligations you may be agreeing to.  Even if you attempt insemination at home without medical assistance, your actions carry serious consequences regarding the legal parenthood of any children who are conceived. NicholsonPham attorneys can assist you with understanding any clinic documentation and provide advice about the decisions you need to make.

ART Documents and Proceedings

In addition to any clinic documents, there are several agreements that you will need to enter into with all the parties involved in your ART process, including:

  • Known sperm or egg donor agreement - if anyone is donating sperm or eggs to you.
  • Anonymous sperm or egg donor documents - usually entered into with the donor and a medical clinic or surrogacy agency or organization, but such documents should be reviewed by your own attorney
  • Embryo agreement - if anyone is donating embryo to you.
  • Surrogacy agreement - if you are using a woman to carry a child for you.
  • After a pregnancy is achieved and before any child is born, a Prebirth Order should be obtained from a court.  This Order establishes who are the legal parents to the child, who is not a legal parent, and who should be listed as the parents on the child’s birth certificate.  Such Orders will help with the process of filling out birth certificate documents at the hospital and the issuance of the birth certificates by the Vital Records office.

Unfortunately, NC has no comprehensive law regarding ART or other surrogacy-related issues.  We have no laws that prohibit the use of surrogacy, nor any laws specifying any requirements.  Furthermore, our state laws regarding the determination of parentage leave many questions unanswered, especially for children conceived by ART.  Therefore, it is very important that all parties to any surrogacy matter consult with an attorney to learn what protection they can and cannot expect from our laws.