Or why E! News host Giuliana Rancic and others travel from around the world to Colorado to build their families
by Ellen E. Trachman
What is “ART”?
Assisted reproductive technology (ART) is the use of medical technology to assist with pregnancy or childbirth. The most common and well-known method of assisted reproductive technology is IVF (in vitro fertilization), where the creation of an embryo happens outside of a woman’s body and is then transferred back to her in hope of achieving a pregnancy. Other popular methods of assisted reproductive technology involve the use of an egg donor, sperm donor, embryo donor, or the use of a surrogate carrier. ART provides an option for those who can’t build their families without assistance, whether it be a couple suffering from infertility, a same-sex couple, or an individual without a partner.
The Growing Need for Law and Lawyers With Respect to ART
According to the Center for Disease Control, over 1% of all infants born in the United States every year are conceived using ART. New and evolving reproductive technology has also created unique and novel legal issues. When a third-party donor or surrogate is involved, questions arise as to who can claim parental rights, who can claim inheritance rights, who can claim SSI, who has property rights to remaining genetic material (including eggs, sperm, embryos), what medical information remains private, who (or whose insurance company) is liable for medical expenses, among others. Even when a third-party is not involved, if two parties (even a happily married couple at the time) create embryos together, a dispute can later arise as to what should happen to those embryos and who has the right to decide.
Lawyers can often smooth over these issues by drafting well-written agreements that distinctly address each party’s role and his or her rights, and come to an agreement as to how many foreseeable situations will be handled.
Agreements are highly malleable to negotiation and give-and-take between the parties involved. For example, if a couple uses a surrogate to carry their child, an agreement would lay out compensation for the surrogate and who is liable for up-front medical costs as well as liability for later occurring medical complications, parental rights are clearly laid out, and details of the surrogate’s behavior (i.e., no smoking, no drinking, and… no sushi?!) are dictated.
Current ART Law Varies Widely Among the States, and is Still Unsettled in Colorado
Laws vary widely both nationally and internationally with respect to various ART issues. In much of Europe surrogacy is illegal – resulting in international families traveling to the United States to take advantage of surrogacy-friendly venues. The Unites States also has a number of states that are anti-surrogacy; for example, Arizona prohibits the use of “surrogate parent contracts” and provides that in a surrogacy situation the surrogate will be considered the child’s mother. In New York, compensated surrogacy is illegal. On the other end of the spectrum, many states, such as California and Illinois, not only permit compensated surrogacy but have laws protecting the validity of a surrogacy agreement.
Colorado has no regulations pertaining to surrogacy. Thus, for the time being, surrogacy—including commercially compensated surrogacy—is not prohibited in Colorado. But because of the absence of clear law, Colorado attorneys have developed clever ways to use existing law to apply to new situations presented by ART issues. For instance, Colorado has a dated and limited assisted reproduction statute, Colo. Rev. Stats. § 19-4-106, which permits that a couple using either a sperm or egg donor, under the supervision of a licensed physician, shall be considered the parents of the child. While the statute uses language specific to a heterosexual married couple, courts have interpreted its application broadly to include other types of relationships.
Additionally, some Colorado courts will issue “pre-birth orders,” wherein intended parents using a surrogate in Colorado can petition the courts for an order requiring that their names (and not the birth mother’s) appear on the child’s birth certificate. Such an order spares the couple from having to later go through an adoption process to maintain legal parental rights to their child.
Colorado is Drawing High-Profile Couples to Use Assisted Reproductive Technologies in the State
Given Colorado’s unsettled legal framework for ART, why are celebrities and others from across the nation and world flocking to Colorado? The real draw of Colorado for those hoping to use assisted reproductive technology is that Colorado has some of the most skilled and highly-acclaimed medical specialists in the country, if not the world.
Colorado’s doctors, specifically its reproductive endocrinologists, have drawn people from around the world, including Giuliana and Bill Rancic (of E! News fame, and the first winner of Donald Trump’s The Apprentice, respectively) who found a clinic and surrogate in Colorado to help with the birth of their son.
Additionally, Colorado has a number of reputable egg donor and surrogacy agencies that facilitate the identification and screening of donor and surrogate candidates. The depth of medical expertise, availability of quality donor and surrogacy agencies, and, of course, the knowledgeable Colorado lawyers specializing in ART law, make Colorado a quality venue for family-building by ART.
Conclusion:
Colorado families utilizing ART could certainly benefit from supportive and clarifying legislation as to questions of insurance coverage of infertility treatment, parentage determinations, disposition of frozen embryos, and validity of surrogacy contracts. But, in the meantime, hiring a skilled lawyer specializing in Colorado ART law is the best path for protecting one’s growing family.
Ellen E. Trachman is the Managing Partner of the Trachman Law Center (www.trachmanlawcenter.com), and is happy to answer further questions at etrachman@trachmanlawcenter.com.
