Most people navigating fertility and assisted reproductive technology are focused on one thing: building their family. The legal side feels like a distant concern, something to sort out later, but waiting too long to involve an experienced assisted reproductive technology attorney can create real complications, sometimes ones that are difficult to undo.
The journey to parenthood using assisted reproductive technology touches on some genuinely complex legal territory. Whether you are pursuing IVF at a clinic in the Twin Cities or elsewhere, working with a gestational carrier/surrogate, or using donor eggs/sperm/embryos, there are legal questions running beneath every step of that process. Understanding assisted reproductive technology law before you start, not after, gives you a foundation that protects everyone involved, including the child you are working to bring into the world.
When You Are Using a Sperm, Egg, or Embryo Donor
When a donor is involved, we see some of the most common misconceptions. The legal status of a donor seems obvious because Minnesota laws concerning assisted reproduction clearly state that a donor is not a parent of a child conceived by assisted reproduction. However, it is important, sometimes crucially, to document the donor relationship with the intended parents to ensure the donor’s status is properly established.
Minnesota law does address donor parentage, but the legal protections that flow from that principle depend on how the process was structured and documented. The absence of a proper agreement, or a poorly drafted one, can leave room for disputes and heartache down the road.
If You Are Pursuing Surrogacy in Minnesota
Gestational carrier/surrogacy contracts should be signed before beginning fertility medications or undergoing an embryo transfer, meaning the initial legal work needs to begin before the medical process gets underway. When undergoing a gestational carrier/surrogacy agreement, both the surrogate and the intended parents should have independent legal counsel. That is not just a best practice recommendation because, given the complexity of the arrangement, surrogacy contracts can be ripe for dispute and enforceability issues when they are drafted improperly or when one party does not have independent legal representation.
Establishing Parentage
Our process for establishing legal parentage has been formally adopted by Minnesota as the accepted method for assisted reproductive technology cases. Minnesota law is clear that parentage of a child cannot be established until the child is born, and any pre-birth order that determines parentage results in a less secure finalization of parental rights for the intended parents. Many intended parents worry about what this may mean when the child is born and in the hospital or in the early days of the child’s life, since the Court has not yet issued an order declaring the intended parents as the legal parents of the child. Although parentage cannot be finalized prior to birth, a pre-birth order can grant temporary parental rights to the intended parents until their rights are finalized, which ensures that the intended parents are recognized as the sole caregivers of their child from the moment the child is born. The components of establishing an intended parent’s legal parentage vary depending on the genetics of the child and the specifics of each journey. A combination of establishing parentage, terminating a surrogate’s rights, and a step or second-parent adoption may be required. Knowing which path applies to your situation is something a reproductive technology attorney can map out with you well in advance.
If Something Goes Wrong
Sometimes the fertility journey does not go as planned. A surrogacy agreement breaks down. A clinic makes an error. A co-parent relationship changes. A donor situation becomes contested.
These are not common outcomes, but when they do occur, the legal footing you established early in the process can make an enormous difference. Courts in Minnesota have addressed situations where agreements were not properly executed or where consent was disputed. The legal analysis in those cases often comes down to what was documented, when it was documented, and how clearly it expressed the intent of the parties involved.
Having an attorney involved early does not mean you are anticipating problems. It means you are protecting against them in an ever-evolving legal landscape.
When Is the Right Time?
We encourage intended parents to reach out at the beginning of their journey to ensure proper legal documentation is in place before undergoing negotiations with a donor or a gestational carrier/surrogate. That early conversation does not have to be lengthy or complicated. In many cases, it is simply about understanding what questions to ask and what documents to put in place prior to embarking on an assisted reproductive technology journey.
At Steven H. Snyder & Associates, we work with families across Minnesota, the United States, and abroad who are navigating the legal dimensions of building their families through assisted reproduction. If you are at any stage of this process and wondering whether it is time to talk to an attorney, the answer is probably, “yes.”
Reach out to our office to schedule a consultation. We will gladly help you understand your legal situation and what steps make sense for you and your future family.