Assisted reproductive technology laws in the United States split cleanly along one line: federal agencies police the safety and honesty of the industry, while states decide who counts as a legal parent, whether a surrogacy contract will be enforced, and what happens to embryos in storage. That division matters because a surrogacy arrangement that is routine in one state can be void or unenforceable in the next, and a child born abroad through ART can end up outside U.S. citizenship rules even when both intended parents are citizens. Knowing which layer of law applies at each stage protects your parental rights, your money, and in some cases your child’s status.
Federal Safety and Transparency Rules
FDA Oversight of Donor Eggs, Sperm, and Embryos
The FDA treats eggs, sperm, and embryos as human cells, tissues, and cellular- and tissue-based products. Every clinic and lab handling this material has to follow the donor eligibility rules in 21 CFR Part 1271, which focus on preventing the transmission of communicable diseases. Facilities screen and test donors before use, keep detailed records, and follow current Good Tissue Practice standards throughout.1eCFR. 21 CFR Part 1271 Subpart C – Donor Eligibility Violations can trigger inspections, recalls, or suspension of operations.
Anonymous sperm donors get an extra safeguard. Their samples stay in quarantine for at least six months, and the donor is retested for the same communicable diseases before the samples can be released.1eCFR. 21 CFR Part 1271 Subpart C – Donor Eligibility Directed donors known to the recipient follow a different testing timeline, but the underlying screening still applies.
Clinic Success Rate Reporting
Under the Fertility Clinic Success Rate and Certification Act, every ART program reports its outcomes annually to the CDC. The data includes pregnancy success rates by procedure type and the identity and certification status of each embryo lab the program uses.2Office of the Law Revision Counsel. 42 US Code 263a-1 – Assisted Reproductive Technology Programs The Federal Trade Commission separately polices deceptive advertising in the fertility space. Under the FTC Act, health-related marketing claims must be backed by competent, reliable scientific evidence at the time they are made, and the FTC can seek federal court injunctions, cease-and-desist orders, and civil penalties.3Federal Trade Commission. Warning Letter to Fertility Nutraceuticals LLC
State Surrogacy Laws
Surrogacy is one of the most fragmented areas of family law in the country. Some states have detailed statutes that enforce gestational surrogacy agreements. Others have no surrogacy statute at all, leaving enforceability to case law and judicial discretion. A few still restrict or prohibit compensated arrangements. Before signing anything, confirm what your state actually permits, because a contract that’s ordinary in California or Illinois may be unenforceable where you live.
What Makes a Surrogacy Contract Enforceable
In states that recognize surrogacy agreements, the contract is the foundation of the whole arrangement. Common statutory requirements include an age minimum for the gestational carrier (usually 21), medical and psychological evaluations, and independent legal counsel for each party. The contract sets out financial responsibilities, behavioral expectations during pregnancy, immediate transfer of custody at delivery, and what happens if complications arise. Without independent legal advice on both sides, courts in many jurisdictions will refuse to enforce the agreement if a dispute surfaces later. Intended parents typically pay for the carrier’s legal fees on top of their own.
Insurance Coverage for the Carrier
Health coverage for the gestational carrier is one of the most overlooked risks. Some group health plans include explicit exclusions for surrogacy-related pregnancy expenses. Federal laws including the Pregnancy Discrimination Act, the Newborns’ and Mothers’ Health Protection Act, and the ACA do not distinguish between traditional and surrogate pregnancies for coverage purposes, so a plan that excludes surrogacy maternity care may be on shaky legal ground. In practice, many intended parents purchase a separate maternity policy for the carrier to avoid the fight entirely.
Establishing Legal Parentage Through ART
A surrogacy contract creates rights between the parties, but only a court order gives you legal parentage that hospitals and vital records offices will recognize. The standard process is a parentage petition filed during the second or third trimester, attaching the surrogacy agreement, medical records confirming the use of assisted reproduction, and evidence that the statutory requirements were met. If the judge is satisfied, the order directs that the intended parents’ names go on the original birth certificate.
Depending on the jurisdiction, this is either a pre-birth order issued before delivery or a post-birth order entered afterward. Pre-birth orders are preferred because they avoid any gap in legal parentage. The order is served on the hospital and the vital records agency so everything is in place when the child arrives. This step eliminates the need for intended parents to adopt their own child.
States that have adopted versions of the Uniform Parentage Act usually offer the clearest path. These frameworks generally recognize intended parents as legal parents when a valid agreement exists and the child was conceived through assisted reproduction, regardless of genetic connection. In states without such frameworks, the process is more uncertain and may require adoption proceedings as a backup, particularly for the non-genetic intended parent.
Donor Agreements for Eggs and Sperm
When someone contributes eggs or sperm for another person’s reproductive use, a donor agreement defines the legal boundaries. The donor signs a formal relinquishment of parental rights before the medical procedure takes place. The agreement specifies that the donor has no legal or financial obligations to any resulting child and that the intended parents assume full responsibility. Many states reinforce this by giving donors statutory immunity from custody and child support claims, but the written agreement is the first line of defense.
Anonymity provisions are trickier than they used to be. Some donors remain anonymous permanently; others consent to identity disclosure when the child reaches adulthood. Consumer DNA testing services can effectively bypass contractual anonymity regardless of what the agreement says, so the separation of parental rights and obligations should be documented clearly even where identity itself may not stay hidden.
Egg donor compensation is taxable income. If compensation exceeds $600 in a calendar year, the paying agency or facility issues a 1099. Donors report the income on their federal return and may be able to deduct unreimbursed expenses related to the donation.
Frozen Embryo Law
Disposition Agreements
When embryos are frozen for future use, you sign a disposition agreement at the time of cryopreservation. It dictates what happens if you die, divorce, or stop paying storage fees. Typical options include donation to another individual, donation for research, or thawing without transfer. Storage fees are recurring, so this is not a purely philosophical question. Clear instructions in the agreement head off expensive litigation later.
Disputes in Divorce
When a couple divorces and disagrees about frozen embryos, courts generally start with the disposition agreement. If it is clear, most courts enforce it as written. The New York Court of Appeals in Kass v. Kass held that when the parties to an IVF procedure have themselves determined the disposition of unused embryos, their agreement should control.4Justia. Kass v Kass Where no agreement exists or it is ambiguous, courts in many jurisdictions apply a balancing test rooted in procreational autonomy, which generally means the right to avoid forced parenthood outweighs the other party’s desire to use the embryos.
Abandoned Embryos
Clinics increasingly face embryos in storage where the patients have stopped paying and cannot be reached. Federal law doesn’t clearly address when a facility can dispose of unclaimed embryos. The American Bar Association’s Model Act on Assisted Reproductive Technology suggests facilities may treat embryos as unclaimed if at least five years have passed since creation, diligent efforts to contact the patients have failed, and the patients previously acknowledged in writing that embryos could be deemed unclaimed. Without specific written instructions, unclaimed embryos generally cannot be donated to other individuals for reproductive use or used in research. If you have frozen embryos in storage, keep your contact information current with the facility and keep your disposition agreement clear.
Tax Treatment of ART Costs
The IRS allows you to deduct the cost of fertility treatments performed on yourself, your spouse, or your dependent as medical expenses. Qualifying costs include IVF, temporary storage of eggs or sperm, and surgery to reverse a prior sterilization procedure.5Internal Revenue Service. Publication 502, Medical and Dental Expenses The deduction only applies to the extent your total medical expenses exceed 7.5% of adjusted gross income, and only if you itemize.
Surrogacy costs are different. The IRS does not allow deductions for amounts paid for the identification, retention, compensation, and medical care of a gestational carrier, because those expenses are paid for someone who is not you, your spouse, or your dependent.5Internal Revenue Service. Publication 502, Medical and Dental Expenses Some intended parents have tried to claim portions of surrogacy expenses as medical deductions and lost in Tax Court. Your own fertility treatment is deductible; paying for someone else’s pregnancy is not.
Citizenship for Children Born Abroad Through ART
If you use assisted reproduction to have a child born outside the United States, the child’s path to U.S. citizenship depends on whether at least one U.S. citizen parent has a genetic or gestational relationship to the child. The State Department adjudicates these claims based on a blood relationship, not just legal parentage. An anonymous egg or sperm donor cannot transmit citizenship even if a clinic certifies the donor was a U.S. citizen, because the Department has to verify the identity of the citizen parent.6U.S. Department of State Foreign Affairs Manual. 8 FAM 304.3 Acquisition of US Citizenship at Birth – Assisted Reproductive Technology
USCIS applies a similar framework. A child is considered born in wedlock when the legal parents are married and at least one has a genetic or gestational connection. An unmarried, non-genetic, non-gestational legal parent cannot transmit U.S. citizenship.7U.S. Citizenship and Immigration Services. Chapter 3 – US Citizens at Birth (INA 301 and 309) The practical trap: if both intended parents use donor eggs and donor sperm with a gestational carrier abroad, the child may not qualify for U.S. citizenship at birth even though the parents are U.S. citizens with a valid parentage order. Parentage law and immigration law don’t line up, and the consequences are severe. Consult an immigration attorney before beginning an international surrogacy.
Documentation is extensive. The State Department may ask for certified hospital records, physician statements, prenatal care records, insurance documents, legal contracts with the fertility clinic and carrier, and in some cases DNA testing.6U.S. Department of State Foreign Affairs Manual. 8 FAM 304.3 Acquisition of US Citizenship at Birth – Assisted Reproductive Technology
Posthumous Conception and Survivor Benefits
When someone dies and a surviving partner uses stored genetic material to conceive a child after death, the resulting child’s legal status is uncertain in much of the country. In Astrue v. Capato, the U.S. Supreme Court unanimously ruled that posthumously conceived children are not automatically entitled to Social Security survivor benefits. The Social Security Administration determines eligibility by looking at the intestacy laws of the state where the deceased parent lived. If that state’s law doesn’t allow a child conceived after death to inherit from the deceased, the child doesn’t qualify for federal survivor benefits.
The result is a geographic lottery. Some states have updated their intestacy codes to recognize posthumously conceived children, typically requiring written consent from the deceased and conception within a set time window after death. Other states haven’t addressed the issue at all. If you’re storing genetic material with any possibility of posthumous use, a written directive expressing your intent is the minimum legal step to protect a future child’s rights, and an estate plan that specifically names potential posthumously conceived children adds another layer of security.