PREPARED REMARKS OF

MARSHALL J. WOLF

BEFORE THE HOUSE OF DELEGATES

OF THE AMERICAN BAR ASSOCIATION

ON FEBRUARY 11, 2008 ON BEHALF OF THE

ABA FAMILY LAW SECTION MOVING THE

ADOPTION OF A MODEL ACT GOVERNING

ASSISTED REPRODUCTIVE TECHNOLOGY

This resolution calls for the adoption of a Model Act Governing Assisted Reproductive Technology drafted by the Committee on Reproductive and Genetic Technologies of the Family Law Section.

Since the increased use of intrauterine insemination by donor in the 1960s and the subsequent advances in reproductive medicine associated with in vitro fertilization and other reproductive technologies, the Courts have increasingly been asked to resolve family law issues and other legal disputes without much in the way of legislative standards to guide them. The need for the law to catch up to technology is best illustrated by the famous surrogacy case of Baby M in New Jersey. Baby M is now in college, yet the law regarding assisted reproductive technology is still in its infancy!

Today, with a growing number of court decisions and fast-paced medical developments such as cryopreservation of gametes and embryos, in vitro fertilization and other exotic scientific measures, it is clear that some legislation on assisted reproduction is needed.

Unlike a Uniform Act that urges uniform adoption by the states and territories, this Act is intended to provide model provisions that can be considered in whole or in part by legislative bodies in the states and territories. It addresses many new legal issues that have arisen over recent decades due to advances in medicine and reproductive science, including assisted reproduction. Except for the parentage provisions in the Uniform Parentage Act adopted by this House, to which this Act fully conforms, numerous other issues that are currently unaddressed can be legislatively considered in the context provided by this Act.

The Act provides a framework by which issues such as conformed consent, donor identity, control of cryopreserved gametes, mental health consultations, privacy, embryo donation, insurance and quality assurance can be addressed and resolved. There will be a mechanism to assist in resolving contemporary family law and probate controversies that now reach the courts with little legislative guidance or regulation.

In 2004, this House of Delegates adopted a position in opposition to the use of cloning for human reproduction. Rest assured that this Act in no way alters or affects that policy that remains in place. The Act proposes clear standards to protect the legal interests of all concerned. It neither advocates nor opposes the use of technologies of assisted reproduction, but accepts the reality that they are being used by increasing numbers of people and proposes legal solutions and protections for those involved.

Some highlights of the Act include the following:

  1. Language affecting the need for precise standards governing informed consent, including the need for written notice of potential risks, consequences and benefits of assisted reproduction, the advisability of seeking legal counsel and description of alternative choices such as adoption.
  2. The Act provides for a mandatory offer of mental health consultation to all participants in assisted reproductive procedures, although it does not require acceptance.
  3. The Act requires that individually identifiable information obtained or created in the course of assisted reproductive treatment is subject to the requirements of medical confidentiality.
  4. Provisions of the Act dealing with children of assisted reproduction and gestational agreements have been drawn precisely from the Uniform Parentage Act that has already been approved by this House of Delegates.
  5. Language is included that defines the qualifications for assisted reproduction providers and standards for quality assurance, information registeries, patient safety and damages.

For over 15 years, under the leadership of five dedicated leaders, the Committee on Reproductive and Genetic Technologies of the Family Law Section carefully crafted what became the version of this Act that was originally placed before this House last August. At the request of several interested sections, the Act was withdrawn with the resolve that a final version would be offered at this meeting.

In October, 2007, the Family Law Section convened an all-day meeting in Memphis, Tennessee to discuss revisions to the Act. That meeting was attended by representatives of NCCUSL, private unaffiliated practitioners involved in these issues, and the following ABA entities: the Sections of Health Law, Science and Technology, Individual Rights and Responsibilities and Real Property Probate and Trust Law, as well as the Young Lawyers Division. The Act being presented today is the culmination of the years of work of the Family Law Section and the invaluable, thoughtful aid and assistance of the participating groups from the Memphis conference.

The Family Law Section is grateful for the work of Steven Synder of Minnesota, current Chair of the Committee on Reproductive and Genetic Technologies, and the assistance the Family Law Section received from the above-mentioned entities, each of which has indicated its co-sponsorship of this resolution. We urge passage of revised Resolution 107.

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