TO:	Members Of The Connecticut Law Revision Commission
FROM:	David Biklen
DATE:	February 1, 2001
SUBJECT:	Assisted Reproductive Technology Draft – Key Issues

 

I. BACKGROUND

At its January 16, 2001 meeting, the Connecticut Law Revision Commission considered proposed draft legislation from its Assisted Reproductive Technology Study Committee. After hearing comments from various advisors to the study committee and discussion of the draft, the Commission deferred action on the proposal until its February 20, 2001 meeting. The Commission also instructed the Executive Director to invite the Judiciary Committee of the General Assembly to raise a bill title on the matter in anticipation of receiving the Commission’s report and to prepare a memorandum for the Commission identifying key issues raised during deliberations by the study committee.

Infertility is now addressed by a number of medical treatments such as medications and surgery. Assisted reproduction technology (ART) encompasses a class of interventions meant to create a pregnancy without addressing the underlying cause of a person’s infertility. Assisted reproductive technology is defined in the draft as a method, other than sexual intercourse, of causing pregnancy - methods such as in vitro fertilization, donation of eggs, sperm, and embryos, and gestational agreements (often known as surrogate parenting arrangements). Adoption is another commonly-used method of family building.

Of the various assisted reproduction techniques, only artificial insemination by a donor (AID) is addressed by Connecticut statutes (chapter 803a - sections 45a-771—45a-779). Those provisions, enacted in 1975, establish that the husband of a woman who gives birth using physician-assisted artificial insemination is the father of the child.

Advisors to the study committee pointed out that the AID statutes are inadequate in a number of ways. For example: Is parentage in doubt if the AID procedure is not performed by a physician as required by the statute? Since the AID statutes cover only married couples, what is the parental status of single persons and unmarried couples for whom assisted reproduction services are now performed? And, although the AID statutes require the parents to file notice of the birth with the Probate Court, the Probate Court administrator’s office reported that it is unaware of parents making such a filing. Furthermore, since the AID statutes were enacted, a number of new and commonly-used procedures, such as in vitro fertilization and egg donation have been developed that are not covered by Connecticut law. Other issues not addressed by current Connecticut law concern ownership and disposition of unused and abandoned embryos.

In addition, Connecticut law does not address the validity of surrogacy or gestational agreements. Under the proposed legislation, a gestational agreement is one in which a woman agrees, with intended parents, to become pregnant by means of assisted reproduction and, on birth of the child, the intended parents become the parents of the child.

Under current practice in Connecticut, parties enter into a gestational agreement wherein a female surrogate gestates a child created with her own egg or a donor’s egg, and the sperm of the intended father or a donor’s sperm. On birth of the child, the surrogate agrees to have her parental rights terminated and the intended parents then proceed with an adoption. If the sperm of the male intended parent is used in the arrangement, it is possible that the man may be named the father on the birth certificate, obviating the need for him to adopt the child.

Connecticut law does not address the numerous issues that can arise under these arrangements. For example, what happens if one of the parties changes her or his mind at different points during the process – before pregnancy occurs, after pregnancy occurs, after birth of the child? What happens if the court does not approve an adoption by the intended parents? What happens if a married woman agrees to be a surrogate without her husband’s knowledge?

Regulation of ART by the states and others

States regulate assisted reproductive technology procedures is a variety of ways. For example, some forty-two states have some statutory scheme that addresses artificial insemination. But only thirty-five clarify parentage. Only five states have some regulation of egg donation – similar to the AID model in those states. States commonly permit reasonable compensation for egg donation, but one state prohibits compensation. Surrogate or gestational arrangements are addressed to some degree by at least twenty-three states, one state prohibiting them. Health insurance coverage for ART is required in eleven states, but not Connecticut. Federal law provides minimal regulation of ART laboratories and requires that pregnancy rates for in vitro fertilization and egg donation cycles be reported to the Centers for Disease Control. Professional societies have some professional standards and guidelines for their members.

 

Possible regulatory schemes

Several regulatory approaches are possible regarding ART.

· Ban the use of ART or ban the techniques outside the context of marriage.

· Be silent about ART – let medical practice and case law address issues as they arise.

· Explicitly permit the use of ART and gestational agreements, but let medical practice and case law address issues as they arise.

· Explicitly permit the use of ART and gestational agreements and provide a comprehensive statutory scheme that addresses a wide range of known issues such as parentage and parental rights and responsibilities; custody, support issues, and inheritance rights of embryos; consumer information (informed consent, how much information must potential participants be given by donors, health care providers, clinics and donor collection laboratories); informing children of their origins; reporting information about ART outcomes; certification and licensure of professionals, medical standard of care and quality assurance at clinics and laboratories; patient screening; storage and disposition of embryos; health insurance for infertility treatment; compensation for donors and surrogates; who is eligible to use ART.

· Explicitly permit the use of ART and gestational agreements and provide a limited statutory scheme that addresses parentage, protection of the child, and some consumer information issues.

Traditionally, the law has prime concern for issues of families and children. Today’s ART procedures make it possible to separate gestational parenthood (the woman who gives birth), genetic parenthood (the source of eggs and sperm), and legal parenthood (the individuals who raise the child and have all parental rights and responsibilities). Donors and gestational carriers intend to relinquish parental rights and responsibilities. Intended rearing parents want to take responsibility to parent the child by providing a home and legal, financial, and emotional commitment. The law can bring clarity to issues about where a child belongs and who has responsibility for the child and decision-making authority. A dispute over custody is not in the child’s best interest. Most members of the advisory committee believe that, given the new ways of building families afforded by ART procedures, some state regulation of ART practices is necessary – regulations that set basic principles and standards. The standards are especially necessary to protect the interests of the resulting child, to assure that the intent of the parties to parent determines parentage, and to assure that parties who consent to participate in ART procedures are informed and are not coerced. Moreover, where legislative policy makers set standard principles and expectations, expenditure of state judicial resources to resolve disputes is reduced.

II. KEY ISSUES

Who can use assisted reproduction technology services. Some argue that only two persons married to each other should be permitted to use assisted reproductive technology procedures. (See letter from the Connecticut Catholic Conference.) The draft, reflecting current Connecticut clinical practice, does not restrict assisted reproduction services to married persons and allows an intended parent in a gestational agreement to be a single person or to two persons regardless of whether they are married (sec. 1(9)). This is consistent with current medical practice and with non-discrimination statutes.

Health insurance for assisted reproduction services. Some advisors suggested that the proposal include a provision mandating that health insurance cover assisted reproduction services. Eleven states, including Massachusetts, have such a mandate.

The health insurance proposal has been before the Connecticut legislature on several occasions and has been proposed, again, in this legislative session. The legislature is aware of the issue and, to date, has not acted to approve the proposals. Because the legislature is already aware of this discrete matter, it did not seem necessary to burden the draft with a health insurance proposal that, to date, has not been acceptable to the legislature.

Disclosure of identity of donor. Should an adult, born of assisted reproduction, have access to the identity of the donor of eggs, semen, or embryos? Section 5 of the draft allows donors and persons using assisted reproduction services to choose an anonymous donor program or a non-anonymous donor program.

Some argue that donors should remain anonymous to protect them from unwanted contacts from their adult genetic children and to avoid discouraging potential donors from participating in assisted reproduction programs.

Others argue that all adults have the right to know the identity of their genetic parent. Some donor programs today now use identified donors, but most don’t. Since policies on the disclosure of identity arise out of medical practice and medical ethics, the policies and practices of ART programs have more often focused on what physicians wanted and what intended parents wanted rather than on what might be in the best interests of the children born from these procedures. A more open policy would be consistent with the proposal the Law Revision Commission made in 1999 to open sealed adoption records to adoptees when they are adults.

This was perhaps our most contentious issue. The provision in the draft represents a compromise between the two positions and was agreed to by most advisors. Those who favor a more open policy agreed to this compromise draft largely so that a bill might go forward that would at least clarify parentage for the benefit of the children and the parents.

Counseling. Should counseling be required before using assisted reproductive techniques? The draft as section 9(b) requires that a person, before using assisted reproduction services that involve donor eggs, sperm, or embryos, must be given information, both orally and in writing, "about the implications of the use of assisted reproduction …sufficient to allow the individual to make an informed decision [about whether to proceed with assisted reproduction]" and must be offered counseling on the social and psychological implications of assisted reproduction. The participant may refuse to accept counseling.

Some argue that, because of the complex medical, social, and psychological dynamics of assisted reproduction, counseling should be mandatory, not optional (see, for example, letter from the Connecticut Catholic Conference. Similar views in favor of mandatory counseling were expressed by adoption counselors and infertility counselors on the advisory group). Many programs require this sort of counseling before certain assisted reproduction services are performed. Because of the vigorous objection by a few advisors to mandatory counseling, the notice of the availability of counseling was seen as a reasonable compromise. Counseling for those entering a gestational agreement is, similarly recommended, but optional (sec. 15(19)).

Embryos. Should the act set specific guidelines for disposition of abandoned or unused embryos? Adopting specific standards can be quite complex and would not necessarily represent a consensus view. Also, this is a rapidly-changing field and the options are constantly evolving. Instead of specific direction on disposition, the draft (sec. 9(d)) requires health care providers and participants to agree on disposition of unused embryos or abandoned embryos. Section 16 (d) specifies who owns eggs and embryos should a gestational agreement be terminated.

The Connecticut Catholic Conference argues that embryo destruction should not be permitted. The medical field would argue this would be a violation of patient autonomy in that it would dictate that if patients did not use all their own embryos, they would have to donate them.

Consideration to egg donor and gestational carrier. The draft, at sections 12, 15(11), and 16, requires that any consideration be reasonable.

Some argue that no consideration should be paid (see, for example, letter from the Connecticut Catholic Conference), and that consideration sounds of baby selling and is inherently coercive to some women who agree to participate in these procedures because of needed income. Others suggested that specific payment limits should be set.

Donation of eggs requires donor time, effort, and inconvenience, as well as risks associated with medications and surgical and other procedures to retrieve eggs. Further risks, effort, time, and inconvenience are associated with pregnancy as a gestational carrier. It is standard practice to compensate for these procedures in Connecticut and elsewhere.

Prohibiting compensation does not seem practical nor does setting a compensation scale by the legislature. The draft requires that any compensation be reasonable. Under section 4, the CT Department of Public Health has jurisdiction to determine whether the amount compensation to egg donors is not reasonable and thus a violation of the act. Under sec. 15, the court reviews whether any compensation to a gestational carrier is reasonable.

Terminology. Should "gestational carrier" be changed to "gestational mother"? As defined in sec. 1(5) of the act, "a ‘gestational carrier’ means a woman who agrees, pursuant to a gestational agreement, to bear a child for an intended parent." Most of the advisors favored the term "carrier" rather than "mother" because of the possible emotional and unintended legal implications of using the term mother in the context of a gestational agreement. This is consistent with how most gestational carriers, themselves, think of and refer to this process.

Disclosure of identity of gestational carrier. Should an adult, born by means of a gestational carrier, have access to the identity of the gestational carrier? This issue will occur only rarely, since in the vast majority of cases, the intended parents choose and come to know their carrier quite well. It is possible, however, to be an anonymous gestational carrier.

Some gestational carriers bear a child for the intended parents using no genetic material from the gestational carrier. Other gestational carriers may bear the child using the carrier’s own genetic material. As an adult, a child who is genetically related to his or her gestational carrier has a stronger claim to know the identity of the gestational carrier than does a person unrelated to the gestational carrier. As a compromise, the draft reflects that judgment.

The following provision should be added to section 15 to assure that a prospective gestational carrier who will be genetically related to the child is informed that the child, when an adult, has the right to learn her name. "Sec. 15(13). The gestational carrier, if she will be genetically related to the child, is aware that on reaching 18 years of age, the child may learn her identity from the court."

Minimum age to be a gestational carrier and intended parent. The draft, at sec. 15(4) requires that both the intended parent and the gestational carrier be at least 21 years of age. The committee considered whether the age should be 18, the age of majority. Most advisors felt that 21 was a more appropriate age to give better assurance that the parties had the maturity to appreciate the process they were undertaking.

Prior pregnancy of gestational carrier. A provision was considered that required a woman, before she would be eligible to be a gestational carrier, already to have had a successful pregnancy. This was seen as a way to give better assurance that she is able to successfully complete a pregnancy and that, as a part of her informed consent, she is familiar the implications of being pregnant and of giving birth.

The provision was not included as being too restrictive and reducing unnecessarily the pool of possible gestational carriers.

When parentage is determined under a gestational agreement. As drafted (sec. 17), on birth of the child under a gestational agreement approved by the court, the intended parents, regardless of genetic relationship to the child, become parents of the child. No further court intervention is necessary to establish parentage. This procedure was selected to assure that the intent and expectations of the parties who entered the agreement with respect to parentage is carried out. A court should not approve an agreement unless it is certain that the agreement represents the desires of the parties and that they were informed about the process they are undertaking. Intended parents cannot change their minds after birth and neither can the gestational carrier. One of the underlying principles of the draft is to assure parentage of children born using these procedures. Giving effect to the intent of the parties and immediate certainty of parentage is thought to be in the best interests of the child.

The January 16, 2001 memorandum from the CCLU raises the question of parentage of a child conceived through sexual intercourse by the gestational carrier during the period of the gestational agreement. The CCLU suggests that, if sexual intercourse caused the pregnancy, parentage of such a child should be controlled not by the agreement, but by genetics. The genetic father was not necessarily a party to the agreement, did not know of its existence, and should not have his parental claims cut off by the agreement. The act, as drafted, would have the court-approved gestational agreement trump his genetic claims to parenthood – again, on the principle that certainty of parenthood immediately at birth is in the best interests of the child.

To accommodate the concern of the CCLU, the following provision could be added to sec. 17(c):

"Sec. 17(c) On application, the Probate Court may issue an order supplemental to the order issued pursuant to section 14. As necessary, the court, in its supplemental order, may:

(7) order genetic testing to determine the parentage of the child if a man, not a donor and not a party to the gestational agreement, requests genetic testing. The request for testing must be made no later than six months after the birth of the child and must be supported by a sworn statement alleging that the man requesting the testing is the genetic father of the child and stating facts establishing a reasonable probability of the requisite sexual contact between the man and the gestational carrier. If it is determined that the man is the genetic father of the child as the result of his sexual intercourse with the gestational carrier, the court shall make any necessary order to establish parentage."

Health decisions by the gestational carrier. Section 15(6) bars a provision that limits the right of the gestational carrier to make decisions about her health or that of the fetus – the agreement cannot limit her right to terminate a pregnancy. Commission member Brenden Leydon suggests adding a provision in the draft that allows a gestational agreement, notwithstanding the gestational carrier’s right to decide whether to terminate a pregnancy, to limit the gestational carrier’s actions, such a smoking or drinking, that could otherwise pose risks to the pregnancy or fetus.

Some gestational agreements, in fact, have such a provision and other provisions such as requiring regular medical care during a pregnancy, restricting sexual intercourse during the term of the agreement, giving information about the progress of pregnancy to the intended parents, and permitting the intended parents to be present at birth. Those contracts also state (as Mr. Leydon also proposes) that they do not impinge on the gestational carrier’s ability to decide to terminate a pregnancy. It appears that those provisions set the expectations of the parties rather than establish a condition that the intended parents can enforce. For example, what is the remedy if a gestational carrier violates a no smoking provision or doesn’t provide the agreed-on updating information during pregnancy? Can the intended parents terminate their obligations under the contract? Can the contract call for a reduction in the amount of compensation paid? Can the intended parent seek damages if a significant birth impairment is linked to a gestational carrier’s risky actions during the pregnancy in violation of the agreement? Regardless of whether the language proposed by Mr. Leydon is inserted in the bill, contracts drafted by attorneys experienced in the area will probably continue to contain hortatory provisions to the gestational carrier to avoid risky health behavior during pregnancy.

The Connecticut Catholic Conference opposes provisions that permit termination of a pregnancy.

Nonapproved gestational agreements. The draft proposes that a gestational agreement entered into and approved by the court pursuant to the draft is a safe harbor for the participants. The draft does not speak to the validity or enforceability of other gestational agreements that may be used by parties in this state that do not meet the standards of this act. The draft provides that this act does not affect the validity of a nonapproved gestational agreement that is valid under other state law.

Other CCLU concerns.

The CCLU asserts that, because the act does not specify when a "birth" has occurred, it is uncertain when decision-making with respect to the child shifts from the gestational carrier to the intended parent. The determination of the occurrence of birth was not seen by the advisors as an issue necessary of resolution in this act.

The CCLU questions whether "extraordinary" health care costs associated with the pregnancy in a gestational agreement are "reasonable" under draft (sec. 15(10)) and thus compensable. Extraordinary health costs, so long as they are reasonable, should be covered.

The CCLU expresses concern that the act does not require providers of assisted reproduction services comply with professional guidelines and standards of various professional organizations. The American Association of Tissue Banks, the American Society of Reproductive Medicine, the Society for Assisted Reproductive Technologies, and the American College of Obstetricians and Gynecologists have established professional guidelines for laboratories and staff, including reporting of clinic specific success rates. Mandating imposition of these professional protocols was not seen as critical by the advisory group at this time. As noted earlier, reporting clinic specific success rates is a federal mandate. Also, the FDA is in the final steps of establishing rules for dealing with reproductive tissue.

Recommended amendments to January 12, 2001 draft, AAC Assisted Reproduction and Gestational Agreements.

1. Amend sec. 17 (c). This amendment allows a nonparty male to a gestational agreement who claims he is the father by means of sexual intercourse with the gestational carrier to assert his paternity claim. See discussion above.

"Sec. 17(c) On application, the Probate Court may issue an order supplemental to the order issued pursuant to section 14. As necessary, the court, in its supplemental order, may:

(7) order genetic testing to determine the parentage of the child if a man, not a donor and not a party to the gestational agreement, requests genetic testing. The request for testing must be made no later than six months after the birth of the child and must be supported by a sworn statement alleging that the man requesting testing is the genetic father of the child and stating facts establishing a reasonable probability of the requisite sexual contact between the man and the gestational carrier. If it is determined that the man is the genetic father of the child as the result of his sexual intercourse with the gestational carrier, the court shall make any necessary order to establish parentage."

2. Amend sec. 15. Require the court in approving a gestational agreement to be certain that a gestational carrier who will be genetically related to the resulting child is aware that, when an adult, the child can learn the gestational carrier’s identity. See discussion above.

(13) The gestational carrier, if she will be genetically related to the child, is aware that on reaching 18 years of age, the child may learn her identity from the court.

3. Amend sec. 5(a). To more clearly coordinate the confidentiality provisions in sec. 5 (a) and (b), add a new sentence at the end of subsection (a).

Identity of the donor may be disclosed in the manner described in subsection (b) of this section.