Guest Blogger Professor Deborah L. Forman: Introducing The ABA's Draft Model Act Governing Assisted Reproductive Technology Agencies

The use of assisted reproductive technology to create families is often described as collaborative reproduction.   Intended parents, gamete donors and surrogates can all play a role in the process.  Assisted reproduction typically involves collaboration among various professionals as well, including physicians, mental health professionals, attorneys and, increasingly today, agencies.  

Agencies typically act as facilitators; they recruit egg donors and surrogates, screen candidates for physical and mental suitability, and match donors and surrogates with intended parents. The terms of a particular egg donation or surrogacy may be negotiated by the agency, though they are ultimately reviewed and memorialized by attorneys representing the parties.  If the match is successful and a pregnancy results, agencies continue to play a role supporting the relationship, ensuring payments are made, and assisting in resolution of any disputes that arise.  In other words, agencies occupy a very important position in the collaborative reproduction process; their conduct can make or break the experience for the participants. 

A high quality agency can provide invaluable service to its clients.  Unfortunately, unscrupulous agencies, those that fail to adhere to ethical principles, and those that are merely incompetent, can wreak havoc on the lives of surrogates, donors and intended parents, causing financial losses and emotional harm.  In one well-publicized case, the owner of a California surrogacy agency, Surrogenesis, embezzled $2 million dollars from intended parents.

Currently, anyone can open an agency, regardless of their qualifications or criminal history; no laws set forth minimum requirements for how agencies handle the funds they receive; what information needs to be disclosed to clients regarding the agencies’ fees and policies; or what kinds of records need to be maintained.

Recognizing the pitfalls of this regulatory vacuum, the Assisted Reproduction committee of the Family Law section of the American Bar Association, has drafted a Model Act Governing Assisted Reproductive Technology Agencies (attached here).  The Model Act proposes a licensing scheme for assisted reproduction agencies.  Agencies would need to obtain a license from a designated state agency and would be subject to disciplinary proceedings for violations of the Act.  The Act imposes affirmative obligations on agencies to refrain from discrimination, coercion, fraud or unethical behavior.  Significantly, the Act also requires agencies to immediately disclose any medical errors of which they become aware to participants and prohibits agencies from “matching” a surrogate or egg donor who it knows is not qualified or unavailable.  Other sections address the need for a service agreement between the agency and the intended parents, require funds be placed in escrow, and detail the agency’s recordkeeping obligations.

The proposed Model Act is in the early stages of consideration by the ABA and has many levels of review to go before it might be formally adopted.  In the meantime, we hope the draft will spark discussion about how best to protect all of the participants in collaborative reproduction.  Comments would be much appreciated.

-Guest Blogger Deborah L. Forman