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Assisted Reproduction

Infertility affects more couples than you’d guess. It’s estimated that 10% to 20% of all straight couples have trouble conceiving. What this means is that there are millions of couples who’d love to have children, but can’t conceive…without help. Thankfully, help is available. Artificial Reproductive Technology (ART) may help those couples create a child.

In North Dakota, Artificial Reproductive Technology is involved with heterosexual couples when:

  • Both have viable genetic material, but the female is unable to carry the embryo for a full term.
  • The sperm and egg are both donated, then transferred to either the female or gestational surrogate.
  • Using a donated sperm or donated egg, as well as the sperm or egg from one partner. The embryo is then transferred to either the female or gestational surrogate.

Of course, unless they pursue the adoption alternative, Artificial Reproductive Technology is also used when homosexual couples are planning to have a child. Typically one sperm or egg is paired with a donated egg or sperm. Once fertilized, the embryo is transferred to a female partner or gestational surrogate.

Infertility can be treated with many different methods, including: superovulation and intrauterine insemination; In vitro fertilization; follicle stimulation and monitoring; testicular sperm extraction; a gestational carrier; 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.

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 North Dakota Assisted Reproduction Laws

Does North Dakota law address gestational carrier and surrogacy arrangements?

Yes. North Dakota statutes approve of gestational carrier agreements where the intended parents are married and using “an egg of a wife” and “her husband’s sperm.” All other agreements are deemed “surrogacy” and, thus, “void.”

The reference in North Dakota’s statutes to “wife” and “husband” could be interpreted to exclude homosexual couples from using gestational carriers. The U.S. Supreme Court case of Obergefell v. Hodges, however, does not permit such an interpretation.

Likewise, there’s a concern that “egg of a wife” and “husband’s sperm” would leave people out, too.  What if a heterosexual couple don’t have both viable eggs and sperm of their own bodies?  Again, what about homosexual couples? Again, there is solace and protection to be found in the Obergefell case. In addition, isn’t a donated egg, purchased by wife, the “egg of a wife?”

In actual practice, to date, our firm has not encountered difficulty with gestational carrier agreements involving gay couples or donated genetic material.

What’s the difference between a Gestational Carrier and a Surrogate?

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 a 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.

Additional North Dakota 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 woman who agrees to carry the intended parent’s child 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.

Yes.  North Dakota statutes approve of gestational carrier agreements where the intended parents are married and using “an egg of a wife” and “her husband’s sperm.”  All other agreements are deemed “surrogacy” and, thus, “void.”

The reference in North Dakota’s statutes to “wife” and “husband” could be interpreted to exclude homosexual couples from using gestational carriers.  The U.S. Supreme Court case of Obergfell v. Hodges, however, does not permit such an interpretation.

Likewise, there’s a concern that “egg of a wife” and “husband’s sperm” would leave people out, too.  What if a heterosexual couple don’t have both viable eggs and sperm, of their own bodies?  Again, what about homosexual couples.  Again, there is solace and protection to be found in the Obergfell case.  In addition, isn’t a donated egg, purchased by wife, the “egg of a wife”?

In actual practice, to date, our firm has not encountered difficulty with gestational carrier agreements involving gay couples or donated genetic material.

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. North Dakota statutes, for example, do not mention, or provide for, pre-birth orders. 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, North Dakota’s Division of Vital Statistics will normally provide a birth certificate identifying the intended parents as the child’s only parents.  It needs to be provided three documents: (1) the Gestational Carrier Agreement; (2) a letter from the lawyer who drafted the agreement; and (3) a letter from the doctor who performed the in vitro fertilization process and confirmed the resulting pregnancy.

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.”

In North Dakota, the language in the statue mentions “husband” and “wife.” However, our constitution requires that same-sex couples receive equal rights as heterosexual couples. Since same-sex couples can get married in the United States, the terms “husband” and “wife” are outdated terms gender references.

The answer is “probably not.”

The language in North Dakota suggests that the sperm and egg are, biologically, the intended parents’.

However, another fair interpretation is that the statute just requires “ownership” or “possession” of the sperm and egg. Under this interpretation, the egg and sperm could come from a donor, so long as the intended parents own and possess the sperm and egg.

There may be a higher risk involved.

The North Dakota statute mentions “husband and wife.” It also mentions “Intended Parents,” strongly evidencing a legislative favoring of married as opposed to unmarried or single “intended parents.”

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.

On the other hand, North Dakota statutes don’t expressly prohibit singles from being an intended parent; and its adoption statutes actually permit adoptions by singles.

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.