With the United States Supreme Court's overturning of Roe v. Wade, many states are implementing new laws regarding a woman's reproductive right to abortion. As with the implementation of any new law, there can be unintended consequences. The consequence to new abortion laws is the unintended (or maybe intended) impact on assisted reproductive technologies, including but not limited to: IVF, infertility treatment, sperm and egg donation, surrogacy, and many other new and evolving technologies.
Assisted reproductive technology (ART) is a term used to encompass any procedure or treatment relating to infertility. According to the CDC, ART procedures involve "surgically removing eggs from a woman's ovaries, combining them with sperm in the laboratory, and returning them to the woman's body or donating them to another woman." ART started gaining traction in 1978 when Louise Brown, better known as the "world's first test tube baby," was born. Before then, ART procedures had merely been mentioned in academic journals but were not viable options for women suffering from infertility. After Louise's birth, however, the ART industry grew rapidly—as did societal concerns about the consequences that would arise from using ART.
It did not take long for the legal community to realize the need for legislative regulations surrounding ART. Despite the growing industry and need for laws surrounding ART, legislators were (and still are) slow to regulate the industry. This has led to criticism that, legally, ART is uncertain, normatively undesirable, or nonexistent. Historically, ART has had little to no state or federal regulation. Due to the lack of legislation, "more 'traditional' forms of ART such as IVF (without genetic modifications) and artificial insemination" have developed with "little regulatory oversight." (source)
While many states have neglected to legislate ART procedures, this is not the case in Oklahoma. Oklahoma recognizes ART procedures under 10 O.S. §§551-556 (Artificial Insemination) and under 10 O.S. §§557-557.25 (Gestational Agreement Act). The Gestational Agreement Act provides a mechanism for Oklahomans experiencing infertility to navigate using ART. In Oklahoma, it is the policy of State to:
- "allow private parties to enter into gestational agreements in order to help facilitate the birth of children to parents who are not otherwise able to conceive or carry them";
- "allow the gestational carriers of such children to be properly compensated for providing this important and selfless undertaking"; and,
- "provide a mechanism to ensure that gestational agreements will be enforced and that the expectations of the parties to gestational agreements will be protected."
Essentially, the Gestational Agreement Act explains exactly what Oklahomans must do to form an enforceable ART contract.
Unfortunately, this brief article will not (and cannot) cover every factor that should be considered if you or a loved one is facing infertility. It does, however, serve as a starting place for Oklahomans to begin understanding how to navigate ART in Oklahoma. In some ways, Oklahoma has been progressive in its enactment of ART legislation, adopting ART legislation as early as 1967. In other ways, there has been continued criticism questioning whether Oklahoma legislators fully understand ART with the recent introduction of House Bills 3013 and 3216.
Ultimately, just as ART procedures are ever evolving, legislators are also attempting to develop laws in response. It is always a good idea to consider contacting a qualified attorney if you have questions about navigating the legal process surrounding the use of ART.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.