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Assisted Reproduction

Infertility affects many couples. It’s estimated 10% to 20% of all straight couples have trouble conceiving. Thankfully, help is available with Artificial Reproductive Technology (ART).

Gestational carriers are often used to help couples having trouble, but it is just one way infertility can be treated. There are many different methods to overcoming infertility, including: superovulation and intrauterine insemination; In vitro fertilization; follicle stimulation and monitoring; testicular sperm extraction; donor egg program (DEP); or intracytoplasmic sperm injection (ICSI).

Whenever an unmarried couple creates a child or a married couple creates a child with the help of a third party, whether a donor or a carrier, all concerned should consult a lawyer experienced with ART issues.

Donors and carriers need legal assurance they will not be identified as the child’s parents or be held financially responsible for the child. Intended parents need legal assurance that, in the law’s eyes, they will be the child’s parents.

Others have concerns, too. For example, a State’s Department of Vital Statistics needs to know who to identify as parents on a child’s birth certificate; and medical providers need to know who to bill for a newborn’s medical care and to whom a child should be discharged.

This is especially true in Minnesota, where the laws and regulations are not as transparent as other states.

Gjesdahl Law has helped many couples, and many gestational carriers, through the assisted reproduction thicket. We’d love to help you, too!

Common Questions About Minnesota Assisted Reproduction Laws

Does Minnesota law address gestational carrier arrangements?

No. Although the Minnesota legislature has considered enacting statutes to address such arrangements, a strong coalition of conservative religious groups have caused the legislature to shy away.

On the upside, however, there is no Minnesota statute that prohibits gestational carrier arrangements, either.  It is in this void that Minnesota ART attorneys regularly - and comfortably - process such arrangements.

Who is involved in an ART arrangement?

Artificial Reproductive Technology arrangements typically include:

Intended parents: Normally a husband and wife, but not always.

Gestational Carrier: The Gestational Carrier, and if married, her spouse.

Attorneys: Most times, an attorney represents the couple, and a separate attorney represents the Gestational Carrier. Sometimes, an attorney represents just one party, and the other party is unrepresented. Sometimes, we work with an attorney at the hospital.

Doctors: A doctor collects the sperm and removes the eggs. A doctor creates the embryos and implants them into the Gestational Carrier. A doctor guides the Gestational Carrier through the pregnancy. A doctor delivers the child. Many different doctors will be involved in a Gestational Carrier Agreement.

Agencies: We normally work with the hospital to ensure they have all necessary documents. We also normally work with the Department of Vital Statistics to assure the intended parents are identified on the child’s birth certificate.

Additional Minnesota Assisted Reproduction Questions & Answers

There are many, including (but not limited to):

Heterosexual couple, both with viable genetic material, but female is unable to  carry the embryo and sustain pregnancy full term.  Her egg is fertilized in vitro with his sperm, and the embryo is transferred to a gestational surrogate.

Heterosexual couple, using donated sperm and donated egg.  Once fertilized, the embryo is transferred to either the female or to a gestational surrogate.

Heterosexual couple, using donated sperm or donated egg, but sperm or egg from one member of the couple.  Once fertilized, the embryo is transferred to either the female or to a gestational surrogate.

Homosexual couple, typically using one’s sperm or egg, paired with donated egg or sperm (often donated by the other’s family member).

The usual interested participants usually include:

Intended parents: Normally husband and wife, but not always.

Gestational Carrier: The Gestational Carrier, and if married, her spouse.

Attorneys: Most times, an attorney represents the couple, and a separate attorney represents the Gestational Carrier. Sometimes, an attorney represents just one party, and the other party is unrepresented. Sometimes, we work with an attorney at the hospital.

Doctors: A doctor collects the sperm and removes the eggs. A doctor creates the embryos and implants them into the Gestational Carrier. A doctor guides the Gestational Carrier through the pregnancy. A doctor delivers the child. Many different doctors will be involved in a Gestational Carrier Agreement.

Agencies: We normally work with the hospital to ensure they have all necessary documents. We also normally work with the Department of Vital Statistics to assure the intended parents are identified on the child’s birth certificate.

A Surrogate uses her own egg to conceive the pregnancy.  A Gestational Carrier does not.  The Gestational Carrier provides a host uterus and carries a child for the Intended Parents. The surrogate provides host uterus, carries the child, and provides the egg.

Legally, using a traditional surrogate involves tremendous risk.  There can be no doubt that the surrogate is the child’s biological mother, which gives both her and her husband substantial legal footing to start from should they renege on an agreement to carry a child for others.  Some states deem traditional surrogacy agreements to be void.  Most lawyers won’t become involved with them.

Gestational carrier arrangements are much safer. Still, not all states bless them and, in fact, many have generated no law that addresses them.

No.  Although the Minnesota legislature has considered enacting statutes to address such arrangements, a strong coalition of conservative religious groups have caused the legislature to shy away.

On the upside, however, there is no Minnesota statute that prohibits gestational carrier arrangements.  It is in this void that Minnesota ART attorneys regularly, and comfortably, process such arrangements.

The first step is to identify a gestational carrier. Most of the time, the intended parents have identified a person that is willing to serve as a gestational carrier. If not, there are organizations that can help you locate a gestational carrier.

The next step is to negotiate and draft the Gestational Carrier Agreement (GCA). The gestational carrier Agreement defines and regulates the rights and obligations between the intended parents and the gestational carrier

After the GCA is signed, the doctors take over. They will obtain the sperm and egg, create the embryo, implant it, and diagnose the pregnancy.

Around mid-pregnancy, an attorney will draft the documents necessary to obtain a pre-birth order from the Court. The pre-birth order makes it clear that the child is the intended parents’, not the gestational carrier’s.

The finalized pre-birth order is sent to the hospital, the intended parents, the gestational carrier, and the Department of Vital Statistics.

After the baby is born, the intended parents are identified as the child’s parents on all documents (most importantly, the birth certificate).

The payments vary. Some gestational carrier arrangements are “commercial” and the carrier is compensated. A usual fee is anywhere from $15,000 to $30,000. Normally the payments are spread out evenly through the pregnancy. There may be additional payments tied to certain events as well. Payments are often made in advance, to an escrow fund, so the carrier is assured she will be paid.

Other agreements are “altruistic,” usually involving a helpful family member or friend who requires no payment).

Will the Gestational Carrier be compensated?  If so, how much?  At what intervals?  Will payments be escrowed in advance?

Who will pay for incidental expenses for the carrier (e,g., maternity clothes, lost work time)?

Is there medical coverage in place?  Who will pay for the carrier’s uninsured expenses?

What medical providers and whose screening protocols will be used?

How many in vitro fertilization transfers will be attempted?

To what extent will each party waive medical confidentiality rights to provide the other needed assurance and the right to participate in the gestational process?

How will “reduction” issues be handled?

The Gestational Carrier Agreement addresses all these issues, and more.

Who has the right to name the child?

Whose names are on the birth certificate as the child’s parents?

Who is financially responsible for the child’s medical expenses?

Who can be present at the child’s birth?

Who makes circumcision and other medical decisions for the child?

The Gestational Carrier Agreement addresses all these issues, and more.

It is wise to sign a Gestational Carrier Agreement before implanting the embryo and to obtain a “Pre-Birth Order” from a court well before the child is born. With a pre-birth order in hand, everyone—the intended parents, the Gestational Carrier, her husband, and the medical providers—can all proceed with more confidence. A pre-birth order is an order from a judge declaring that the baby is the intended parents’ child.

Unfortunately, even those states with laws allowing gestational carrier arrangements usually do not provide a process for obtaining a pre-birth order. Accordingly, the lawyer often ends up explaining an unfamiliar legal process, involving important rights and obligations, to a judge unfamiliar with it all.

Thankfully, judges normally agree: Granting a pre-birth order is a wise and helpful decision.

In those rare instances where a judge refuses to grant parties a pre-birth order, there are other avenues to legally establish the parent-child relationship between the intended parents and the child.

Even without a pre-birth order, Minnesota’s Office of Vital Records might provide a birth certificate identifying the intended parents as the child’s only parents, relying upon the Gestational Carrier Agreement and other requested documents.

A third approach that leads to the same result—legally establishing a parent-child relationship between the child and the intended parents—is a traditional adoption.  Every Gestational Carrier Agreement provides that the carrier and her husband consent to an adoption by the intended parents, and will cooperate with that process.  This approach, however, takes longer (several months) and costs more.

Whichever legal route is followed to establish the intended parents’ legal relationship, all concerned will want to make the medical providers—including the hospital where the child will be born—aware of the gestational carrier arrangement well before the child is born.  The hospital will handle its part better if its personnel are not surprised, at the last minute, with news of the gestational carrier arrangement.

The answer is “Probably.”

Unfortunately, except when the intended parents are heterosexual, married, and using their own biological egg and sperm, there is variance from county to county, from judge to judge.

The answer is “probably not.”

Again, unfortunately, except when the intended parents are heterosexual, married, and using their own biological egg and sperm, there is variance from county to county, from judge to judge.

There may be a higher risk involved.

Again, unfortunately, except when the intended parents are heterosexual, married, and using their own biological egg and sperm, there is variance from county to county, from judge to judge.

We’d expect courts to have fewer concerns about a married gay couple than an unmarried gay couple or a singleton parent; and also to have fewer concerns about married as opposed to unmarried straight couples or singletons.

The state in which the gestational carrier lives (and the where the child is born) is probably the best place to seek the pre-birth order.  That’s the state that will be responsible for issuing the child’s birth certificate.

No.  The intended parents and the gestational carrier have different and separate interests.  It’d be a classic conflict of interest, and inappropriate, for one attorney to represent both sets of interests.

If an attorney represents the gestational carrier, and a separate attorney represents the intended parents, both attorneys should be licensed in the state where the Gestational Carrier Agreement is negotiated and a pre-birth order is issued.