Assisted Reproductive Technology: The Legal Side Nobody Warns You About
When you're trying to have a baby through assisted reproductive technology - IVF, egg donation, sperm donation, surrogacy - you're focused on the medical side. The hormone shots, the retrieval procedures, the embryo transfers, the ultrasounds.
What most people don't realize until they're already knee-deep in the process is that there's a legal side too. And if you don't handle it correctly, you could end up with complicated parental rights issues that overshadow what should be the happiest time of your life.
Let me walk you through what you need to know about the legal aspects of ART before you need to know it.
What Counts as Assisted Reproductive Technology?
ART is basically any fertility treatment where eggs or embryos are handled outside the body. This includes:
In Vitro Fertilization (IVF): Where eggs are retrieved, fertilized in a lab, and embryos are transferred back into a uterus.
Egg Donation: Where someone other than the intended mother provides eggs, either fresh or frozen.
Sperm Donation: Where someone other than the intended father provides sperm, either from a sperm bank or a known donor.
Embryo Donation: Where a couple who created embryos during their own IVF cycle donates those embryos to another person or couple.
Gestational Surrogacy: Where someone carries a pregnancy for intended parents using an embryo that's not genetically related to the carrier.
All of these involve complex legal questions about parentage, and North Carolina law hasn't caught up with the technology.
North Carolina's Legal Gap
Here's the problem: North Carolina has exactly one statute that addresses assisted reproductive technology. One. And it's limited in scope.
That statute says that if a married person consents to their spouse using ART, they're treated as the legal parent of any resulting child. That's helpful as far as it goes, but it doesn't address most of the situations that actually come up:
What about unmarried couples? What about single parents by choice? What about same-sex couples married in other states before North Carolina recognized same-sex marriage? What about known donors who might later claim parental rights? What about gestational carriers?
The statute is silent on all of that. Which means we're navigating this area without clear legal guidance, relying on general parentage law and court decisions.
This is exactly why you need an attorney who practices reproductive law before you start the ART process, not after there's already a problem.
Why Donor Agreements Are Essential
If you're using a known donor and by "known" I mean anyone whose identity you know, whether that's a close friend or someone you found through an online matching service, you need a written donor agreement.
Here's what that agreement needs to address:
Parental Rights and Responsibilities: The donor agrees they are not and will not be a legal parent. They have no rights to custody or visitation. They have no obligation to provide financial support. They're a donor, not a parent.
Future Contact: Will the donor have any relationship with the child? Some families want the donor to be "Uncle Joe" who shows up at birthday parties. Others want complete anonymity. Both are valid choices, but you need to be clear about expectations.
Medical History: The donor agrees to provide updated medical information if relevant health issues arise in their family.
Disclosure to the Child: How will the child learn about their donor? When? What information will they have access to?
Without a written agreement, a known donor could later claim parental rights. Yes, even if they explicitly said they didn't want to be involved. People change their minds. Life circumstances change. Protect yourself with a clear legal contract.
The Known Donor Horror Stories
Let me tell you about the cases that keep reproductive lawyers up at night:
The Friend Who Changed His Mind: Two moms used a friend as a sperm donor with a verbal agreement that he'd have no parental role. A few years later, the friend gets divorced, decides he wants kids after all, and sues for custody. Because there was no written agreement, the court has to sort through dueling claims about what was actually agreed to and what is in the best interest of the child. The moms end up in a years-long custody battle with someone who was supposed to just be a donor.
The "Uncle" Who Wanted More: A single mom used her brother-in-law as a sperm donor. The agreement was that he'd be involved as an uncle but not a parent. When the child was five, the donor decided he wanted to be called "Dad" and wanted equal parenting time. Cue the litigation.
The Second Thoughts: A lesbian couple used a sperm donor they found online. Years later, the non-biological mom leaves the relationship. The biological mom and the donor start talking and decide he should have a parental role. Now the non-biological mom is fighting to maintain her parental rights while the donor is asserting his. It's a mess.
These situations are avoidable with proper legal agreements upfront.
Sperm Banks vs. Known Donors
Anonymous sperm from a sperm bank is the legally cleanest option. The donor has signed away all parental rights through the sperm bank's agreements. You'll never know who he is, he'll never know who you are, and there's no risk of him showing up wanting to parent.
The downside? You don't know the person. You get a profile with physical characteristics, education, interests, medical history but that's not the same as knowing someone. And your child will never be able to contact their biological father unless the donor specifically signed up for an "open" donation, which is relatively rare.
Known donors offer something different. Maybe it's important to you that your child can have a relationship with their biological father, even if he's not a parent. Maybe you want your child to know their genetic background. Maybe you want someone whose character you can personally vouch for.
Both choices are valid. But if you go the known donor route, you absolutely must have legal agreements in place.
Egg Donation: More Complex, More Expensive
Egg donation is medically more complex than sperm donation (it requires hormone shots, monitoring, and an egg retrieval procedure), and it's legally more complex too.
If you're using a known egg donor, you need agreements that address:
Medical Risks: Egg donation involves real medical risks. The donor needs to understand those risks and agree to undergo the procedure.
Compensation: Is the donor being compensated? How much? For what specifically?
Parental Rights: The donor has no parental rights or responsibilities to any resulting child.
Unused Embryos: If there are embryos created but not used, who makes decisions about those embryos?
Future Genetic Testing: What if the child wants genetic testing or wants to contact the donor later?
Most people use anonymous egg donors through agencies, which handle the legal agreements. But if you're working with a friend or family member, you need independent attorneys for everyone involved.
Embryo Donation: A Different Animal
Some couples create more embryos during IVF than they end up using. They might donate those embryos to another couple or person who needs them.
Embryo donation is kind of like adoption, except the embryos haven't been born yet. The original genetic parents terminate all their rights and the recipient parents become the legal parents.
This requires specific legal agreements, and depending on your county, you might need court approval before proceeding.
Gestational Surrogacy: The Most Complex
Gestational surrogacy is where someone carries a pregnancy for intended parents using an embryo they're not genetically related to and is the most legally complex form of ART.
You need:
A thorough surrogacy agreement between the intended parents and the carrier
Separate legal representation for everyone involved
A pre-birth order to establish parentage
Clear agreements about medical decisions, compensation, and risks
I wrote another whole blog post about pre-birth orders and surrogacy because there's so much to cover. If you're considering surrogacy, read that post and then let's talk about your specific situation.
Same-Sex Couples and ART
For same-sex couples using ART, there are additional legal considerations.
If you're a married same-sex couple and one partner gives birth, most states will recognize both spouses as legal parents. But "most states" isn't all states, and "most" isn't good enough when we're talking about your family.
Many same-sex couples pursue second parent adoption even after both names are on the birth certificate, just to have an extra layer of protection. It's frustrating that same-sex parents often need to take extra legal steps, but until we have federal and state clarity on parental rights, belt-and-suspenders is the smart approach.
If you're a same-sex couple using a donor or surrogate, you definitely need comprehensive legal agreements and a pre- or post-birth order.
Single Parents by Choice
Single people who want to become parents face their own legal issues with ART.
If you're a single woman using donor sperm to get pregnant, you need to make sure your donor (if known) has no legal claim to parentage. You also need to think about who will be your child's guardian if something happens to you.
If you're a single man using an egg donor and gestational carrier, the legal work is even more complex. You need agreements with both the egg donor and the carrier, and you need a pre-birth order to establish your parentage.
Single parents by choice are building beautiful families. You just need to make sure the legal foundation is solid.
Why This Matters to Me
I love this work because I love helping people build their families. That's it. That's the whole reason.
Every person who walks through my (virtual) door with their ART plans deserves comprehensive legal protection. You're investing so much financially, emotionally, and physically into creating your family. The legal side shouldn't be an afterthought.
At Balbach & Davenport Legal, we don't discriminate. We work with all kinds of families: same-sex couples, different-sex couples, single parents, polyamorous families, trans and non-binary folks - everyone. Your family is valid, and we're here to make sure it's legally protected.
What You Should Do Before Starting ART
If you're planning to use any form of assisted reproductive technology, here's what you need to do on the legal side:
Consult with a reproductive lawyer before you start the process. Don't wait until you're already pregnant or there's already a problem.
Get written agreements with anyone providing genetic material or carrying a pregnancy. Verbal agreements aren't enough.
Make sure everyone involved has their own legal representation. It's not just good practice, some courts might require it.
Plan for a pre-birth order if you're using a surrogate. Start this process early in the pregnancy, not at the last minute.
Consider second parent adoption for extra protection if you're in a same-sex relationship.
Update your estate planning documents once your child is born to make sure guardianship and assets are handled correctly.
The legal side of ART isn't as exciting as picking out nursery colors or choosing baby names, but it's just as important. Actually, more important. Because without proper legal protection, everything else is at risk.
North Carolina Needs to Do Better
I'm going to be blunt: North Carolina's failure to modernize our laws around assisted reproductive technology is inexcusable.
We have one statute. One. While families are using increasingly complex reproductive technology to build families in increasingly diverse ways, our laws are stuck in the past.
Until North Carolina gets its act together and passes comprehensive ART legislation, families like yours need attorneys like me to navigate the gaps in the law. It shouldn't be this hard. But it is. So we make it work.
If you're planning to use ART to build your family, let's make sure you're legally protected from the start. I'm Melenni Balbach with Balbach & Davenport Legal, and I'm here to help you navigate the legal side of creating your family - whatever that looks like. Reach out anytime.
- Melenni
