Growing your family or helping a family to grow are both exciting and rewarding journeys. With modern medicine and available resources, Assisted Reproductive Technology, also known as ART, has become increasingly popular in North Carolina. If you haven’t heard of the ART acronym, you may find that you’re more familiar with terms like in vitro fertilization (IVF), frozen embryo transfer, surrogacy, egg donation, sperm donation, artificial insemination, or gestational carrier. These processes all fall under ART, which often require not only medical assistance but also legal agreements.
As Wilmington’s first and only law office focused on Adoption and Collaborative Family Law, Michael & Russell is proud to offer intended parents, surrogates, and donors with legal services and guidance concerning ART processes. Managing attorney Ashley Michael has received extensive training through the Academy of Adoption and Assisted Reproduction Attorneys (AAAA) and is a Fellow of the organization. As part of this designation, she is able to help clients navigate laws and policies that may affect their rights to use ART in North Carolina. While medical providers offer a plethora of information about the processes and procedures, it’s important for families to also consider the legal side by working with an attorney experienced in ART matters. North Carolina has not yet adopted the Uniform Parentage Act and there is only one state law, § 49A-1. Status of child born as a result of artificial insemination, that addresses artificial reproduction. Ashley Michael is highly experienced and knowledgeable about the law and what it means for intended families as well as surrogates and donors.
Michael & Russell is honored to help parents-to-be grow their families through a variety of ART processes. We are a safe space for parents no matter how they’re formed or how they want to create their families. Our attorneys have experience working with heterosexual couples, LGBTQ couples, and/or single individuals who are looking to create or expand their families through ART.
Some intended parents may choose to utilize gestational surrogacy or traditional surrogacy. Other intended parents may choose gamete or embryo donation which utilize sperm, eggs, or embryos from someone else. As there are many options to choose from with assisted reproduction, it’s important that intended parents understand the legal aspects, rights, and protections as well as the potential risks.
With gestational surrogacy, a woman agrees to carry a pregnancy for the intended parents where there is no genetic link to the baby she’s carrying. The baby is conceived using an embryo created through IVF with the genetic material of the intended parent or parents and/or the genetic material of a donor or donors. Once the fertilized egg is ready, it is then transferred into the uterus of the gestational surrogate. The legal framework for this practice includes the intended parent(s) being represented by an attorney and the surrogate being represented by a different attorney. Together with their attorneys, all parties involved will create and sign a surrogacy contract which outlines maternity finances, payment, social requirements, and legal clearance. In addition, there is a legal procedure for parentage which can usually be handled prior to birth. Michael & Russell attorneys are experienced with pre-birth order processes, which includes preparing necessary documents, appearing in court if necessary, obtaining the parentage order, and obtaining birth certificates with intended parents listed.
In the case of a traditional surrogacy, the woman carrying the baby is genetically related to the baby. In these situations, the surrogate is artificially inseminated with the sperm of the intended father or a donor. Traditional surrogacy carries greater legal risk compared to gestational surrogacy, especially for the intended parents. If you are an intended parent considering traditional surrogacy, it is highly recommended by ART professionals and legal experts to consult with an attorney prior to beginning the surrogacy journey.
It’s important that intended parents who choose to work with a donor for sperm, egg, or embryo are well-informed about the legal facets of assisted reproduction. The donation process can be done through anonymous donors or known donors. Anonymous donors are located through a matching program, fertility center, or cryobank, also known as a sperm bank. Traditionally, donation was anonymous at first, yet it has become increasingly more common for the intended parent(s) to work with a donor who is known to them, or even related to them. Sometimes, intended parents feel more comfortable with this option because they are aware of the donor’s background, lifestyle, and integrity. (You can read more from the AAAA about the pros and cons of a known donor versus anonymous donor by clicking here.) However, no matter how well you may know your donor, it is crucial that legal protections are in place for both the intended parent(s) and the donor. As an AAAA Fellow, Ashley Michael is well-informed and educated about these legal procedures. These safeguards often include a written legal agreement, psychological consultation, medical screening, and medical evaluation. It is also recommended that the intended parent(s) and known donor each have separate attorneys to create the legal agreement and address any other concerns that arise during the donation process.
In addition to helping intended parents during the ART process, Michael & Russell is knowledgeable and skilled in surrogate and donor representation as well. ART professionals recommend that surrogates and donors obtain their own independent legal representation with an attorney they can trust. It should be a different attorney than the one being used by the intended parent(s). While each situation is unique, it is common practice that the intended parent(s) or donation agency cover the legal fees and expenses of the surrogate or donor.
The legal process is often more involved and complex for surrogates as these women have rights that should be respected and protected. While surrogacy can be a rewarding journey, there are occasionally risks to consider that may result in difficult decisions like medical decisions, pregnancy loss, or termination. In addition, as with nearly all medical procedures, there could also be a risk of death, injury, or long-term complications as a result of the pregnancy. In these instances, surrogates may have the right to receive financial compensation or reimbursement for medical issues. This might include life and disability insurance – at the intended parents’ expense – to protect the surrogate and their family against their death during pregnancy or delivery. It may also involve the right to reimbursement for clothing, lost wages, housekeeping, and child care while on bed rest and other costs associated with the surrogacy arrangement.
While these matters aren’t necessarily a comfortable conversation to have, it is important for surrogates to know their rights and understand their own protections. Having an attorney who is well-experienced in not only ART but also any issues or concerns that may arise is essential for surrogates.
Keep in mind that Michael & Russell is able to represent any party in this process during any legal stage. It is never too late, even if parties were remiss to have a contract or agreement from the beginning. The relationship can still be challenged later on, so it’s important to know that you always have legal options during the process.
Michael & Russell is honored to provide legal services to intended parents, surrogates, and donors through our Adoption and Collaborative Family Law office based in Wilmington, North Carolina. Our legal team, led by attorneys Ashley Michael and Ashley-Nicole Russell, is committed to serving you and your growing family with compassion, empathy, and understanding. With a combined 25 years of family law experience, we strive to provide our clients with the resources and guidance they need to make informed decisions as intended parents, surrogates, or donors.
Through our New Hanover County office on Oleander Drive, we are dedicated to providing family law services to all of southeastern North Carolina. Please reach out to our Wilmington-based legal team at 910-255-5722 to learn more about our services and to schedule an initial consultation for your family law needs.