The legal framework for assisted reproductive technology is built almost entirely at the state level, and it turns on a single organizing idea: the people who plan for a child and set the medical process in motion are the legal parents, regardless of whose eggs, sperm, or uterus were involved. Federal law handles donor screening, tax treatment, and job-protected leave, but parentage, surrogacy enforceability, and embryo rights are decided state by state. That means the paperwork you sign before treatment, and the court orders you obtain around the birth, do more to secure your family than any statute you can point to.
Intent-Based Parentage Is the Core Rule
Intent-based parentage is the doctrine most states apply to ART. The individuals who initiated and planned for the child’s birth are recognized as the legal parents, even when they share no DNA with the child. This is a break from older frameworks that assigned parentage strictly by biological connection or marital presumption.
Parentage is typically established through contracts executed before the medical procedure begins. Those agreements bind the intended parents to full legal and financial responsibility for any resulting child, and they waive any parental claim by donors or gestational carriers. When a donation happens through a licensed facility under a written agreement, the donor is not a legal parent, which cuts both ways: the donor cannot be pursued for child support, and the donor cannot seek custody or visitation.
Courts have broadly upheld intent-based standards because they promote stability for children and families. The framework becomes essential when the intended parents have no genetic connection to the child at all, such as when both donor eggs and donor sperm are used. Without it, those families would have no path to legal parentage short of adoption.
The Uniform Parentage Act of 2017 offers a model framework for standardizing how ART parentage and surrogacy agreements are recognized.1Uniform Law Commission. Parentage Act Some states have adopted versions of it, though the enacted versions vary significantly.2American Academy of Matrimonial Lawyers. Synopsis: A Report on the Uniform Parentage Act (UPA 2017) Checking the law of the specific state where the child will be born is essential.
Contracts to Sign Before Treatment Begins
Two contracts do most of the legal work in an ART arrangement, and both need to be in place before any medical procedure starts. Retroactive agreements carry far less legal weight.
Donation Agreements
Donation agreements establish two things at once: the donor’s waiver of all parental rights and the intended parents’ assumption of full legal and financial responsibility for any resulting child. They also address whether the arrangement is anonymous or open to future contact, what medical history the donor must disclose, and the compensation terms. Sperm donor compensation typically runs $50 to $150 per donation; egg donor compensation ranges from $5,000 to $10,000, reflecting the time, medical risk, and physical burden of retrieval.
The contract must characterize these payments as compensation for the donor’s time and physical involvement, not as payment for the genetic material itself. Framing the arrangement as a tissue sale can expose both parties to legal challenges.
Donor anonymity is also shifting. Historically, most U.S. sperm and egg donation operated under a presumption of permanent anonymity. A growing number of states now give donor-conceived individuals the right to access identifying information about their donor at age 18, and some flip the default so that disclosure applies unless the donor signs a nondisclosure form at the time of donation. Even where anonymity is preserved, some statutes still guarantee the donor-conceived person access to non-identifying medical history. Anonymity guarantees are only as strong as current law allows, and agreements should say so directly.
Embryo Disposition Agreements
Before a fertility clinic stores embryos, both parties sign a disposition agreement specifying what happens under various scenarios: the death of one or both partners, a decision to stop treatment, or a divorce. This is the single most important document in the cryopreservation process, and it is the one people most often rush through. It should state explicitly whether unused embryos will be donated to another couple, donated for medical research, or discarded.
The law treats embryos as a unique category, neither fully persons nor ordinary property. Because of that in-between status, courts don’t apply standard property division rules when disputes arise, which makes the written agreement decisive.
Surrogacy Laws Vary Sharply by State
Surrogacy is where state-to-state variation creates the most legal risk. The law distinguishes gestational surrogacy, where the carrier has no genetic connection to the fetus, from traditional surrogacy, where the carrier’s own egg is used. Most legal frameworks favor gestational arrangements because the absence of a genetic link makes it far harder for a carrier to assert parental rights after birth.
State treatment spans the full spectrum. Some states have detailed statutes that permit and regulate these agreements, establish the intended parents as legal parents from birth, and provide a clear enforcement path. Other states treat surrogacy contracts as void and unenforceable. A handful classify paying a carrier as a criminal offense, with penalties that can include misdemeanor charges and fines up to $10,000. Most states fall somewhere in between, with courts filling gaps that legislatures haven’t addressed.
Base compensation for gestational surrogates generally falls between $30,000 and $60,000, varying by the carrier’s location, experience, and pregnancy complexity. Contracts commonly require that compensation be deposited into an independent escrow account managed by a third party, protecting both sides by ensuring funds are available for medical costs and agreed fees throughout the pregnancy. States that regulate surrogacy in detail increasingly require the surrogate to retain independent legal counsel, with the intended parents covering that cost.
Because the state where the child is born controls, planning the birth location is a legal decision as much as a logistical one. A carrier who delivers in a state with less favorable ART laws than the parties assumed can create a significantly more complicated path to legal recognition.
Court Orders That Put You on the Birth Certificate
Once a pregnancy is established through ART, the intended parents need a court order that formally recognizes them as the child’s legal parents. The mechanism depends on the state: some allow pre-birth orders issued during pregnancy, while others require post-birth orders obtained after delivery.3Academy of Adoption and Assisted Reproduction Attorneys. Assisted Reproduction Parentage Proceedings
A pre-birth order is the preferred option where available. It is typically filed during the second or third trimester and instructs the hospital and the state’s vital records office to list the intended parents on the birth certificate from the start. The judge reviews the underlying surrogacy or donation agreements to confirm they comply with state law, that all parties gave informed consent, and that the contracts meet local validity requirements. Once signed, a certified copy goes to the hospital’s legal department so staff know exactly who has medical decision-making authority for the newborn.
A post-birth order accomplishes the same result after delivery, but the delay creates a brief window of legal uncertainty. Court filing fees vary by jurisdiction, and attorney fees for drafting and filing the paperwork can run several thousand dollars depending on the complexity of the arrangement. The resulting birth certificate eliminates the need for a separate adoption proceeding and serves as the definitive proof of parentage for every future legal and practical purpose.
Extra Steps for Same-Sex Couples
Same-sex couples face additional legal exposure in ART arrangements even after the Supreme Court’s marriage equality rulings. In states without comprehensive ART parentage statutes, a non-biological intended parent may not be automatically recognized on the birth certificate. Even a married same-sex couple using donor sperm or a gestational carrier may need to pursue a court order or second-parent adoption to secure the non-biological parent’s legal rights. Skipping this step is one of the most common and costly mistakes in ART planning: a parent without legal recognition can be shut out of medical decisions, school enrollment, and custody if the relationship ends or the recognized parent dies.
When Embryo Plans Change
Two situations force courts into embryo disputes: divorce and unpaid storage bills.
If a couple divorces and cannot agree on the fate of their embryos, courts start by looking for a written disposition agreement. When one exists and was signed voluntarily with informed consent, most courts enforce it. The harder cases arise when there is no clear agreement, or when one party claims circumstances have changed so dramatically that the original agreement should no longer apply.
In the absence of a binding agreement, courts typically apply a balancing test that weighs one party’s interest in becoming a parent against the other’s interest in avoiding parenthood. Factors include the significance of each party’s stake, whether the party seeking to use the embryos has other realistic paths to parenthood, and the specific circumstances of each person’s situation. In practice, the party who wants to avoid procreation usually prevails, grounded in the principle that a person cannot be forced into genetic parenthood against their will.
Storage fees create the second flashpoint. Annual fees typically range from a few hundred dollars to over $1,000, and unpaid storage is a live legal problem. If the clinic cannot reach the individuals after reasonable attempts, it may treat the embryos as unclaimed and dispose of them according to the original contract terms.4American Society for Reproductive Medicine. Disposition of Unclaimed Embryos: An Ethics Committee Opinion (2021) Keeping contact information and payments current with the storage facility is what keeps dispositional control in your hands.
Posthumous Conception and Inheritance
When a child is conceived using stored genetic material after a parent’s death, the legal questions get significantly harder. The Uniform Probate Code provides a framework: a posthumously conceived child can be treated as living at the time of the deceased parent’s death for inheritance purposes, but only if the embryo was in utero within 36 months of death or the child was born within 45 months of death. These time limits give surviving partners space to grieve while still allowing estates to close with some finality.
Social Security survivor benefits add another layer. The Supreme Court ruled in Astrue v. Capato that eligibility for a posthumously conceived child depends on the intestacy law of the state where the deceased parent lived. If that state’s law does not recognize the child as eligible to inherit, the child cannot receive federal survivor benefits either. A child conceived after a parent’s death in one state may qualify for benefits while an identically situated child in another state may not.
Anyone storing genetic material should address posthumous use explicitly in estate planning documents. A will or trust that specifically authorizes posthumous conception and names the intended beneficiary can resolve ambiguities that would otherwise require litigation.
The Federal Layer: Screening, Taxes, Insurance, and Leave
Federal law touches ART in four specific places.
Donor Screening
The FDA requires rigorous donor screening under regulations that mandate testing and evaluation for communicable diseases before any cells or tissue can be used. Establishments responsible for donor eligibility must review medical records for risk factors and clinical evidence of relevant communicable diseases, and must test donor specimens for infection.5eCFR. 21 CFR Part 1271 Subpart C – Donor Eligibility These requirements apply regardless of the state.
Tax Treatment
Fertility treatments qualify as deductible medical expenses under federal tax law. The IRS allows you to include the cost of procedures performed on yourself, your spouse, or your dependent to overcome an inability to have children, including IVF, temporary storage of eggs or sperm, and surgical procedures to reverse prior sterilization.6Internal Revenue Service. Publication 502, Medical and Dental Expenses These expenses are deductible on Schedule A only to the extent they exceed 7.5% of your adjusted gross income.
Surrogacy costs are treated differently. The IRS does not allow intended parents to deduct amounts paid for the identification, compensation, and medical care of a gestational surrogate, because the surrogate is not the taxpayer, the taxpayer’s spouse, or a dependent.6Internal Revenue Service. Publication 502, Medical and Dental Expenses IVF on your own body is deductible; the moment the pregnancy moves to a carrier, the medical expenses associated with that pregnancy are not.
On the carrier’s side, surrogacy compensation is generally treated as taxable income. Escrow agencies rarely issue 1099 forms, which creates a false impression that the income doesn’t need to be reported. It does. Characterizing surrogacy compensation as tax-free pain and suffering damages is not a viable strategy, because the IRS defines that exclusion in the context of physical injury or accident, not a voluntary contractual arrangement.
Insurance Coverage
Whether health insurance covers fertility treatment depends heavily on where you live and who your employer is. A growing number of states mandate some level of infertility coverage, but these mandates vary dramatically. Some require coverage only for diagnostic evaluation; others mandate coverage for specific treatments including IVF. Many state mandates distinguish sharply between infertility diagnosis and infertility treatment, covering the former while excluding the latter.
Even in states with broad mandates, significant gaps remain. Self-insured employers, which include many large companies, are generally exempt from state insurance mandates under federal ERISA preemption. Religious employers often receive exemptions as well. Some mandates apply only to certain plan types, such as group plans but not individual policies, or HMOs but not other structures. Several states have also enacted targeted mandates for fertility preservation when infertility is caused by medical treatment like chemotherapy.
Don’t assume your plan covers fertility treatment just because your state has a mandate. Read the specific policy language, ask the insurer directly about ART coverage and any cycle limits, and factor potential out-of-pocket costs into your planning. A single IVF cycle can cost $15,000 to $30,000 before medications, and many patients require multiple cycles.
FMLA Leave
Intended parents who welcome a child through surrogacy are eligible for Family and Medical Leave Act bonding leave. The Department of Labor recognizes surrogacy arrangements in the context of FMLA leave for placement of a child, and eligible employees may take up to 12 weeks of unpaid, job-protected leave to bond with a newly placed child.7U.S. Department of Labor. Fact Sheet #28Q: Taking Leave from Work for the Birth, Placement, and Bonding with a Child Under the FMLA This entitlement begins when the child is first placed with the intended parents and must be used within the 12-month period following placement.
Employers can require documentation of the family relationship, such as a court order, but cannot demand medical certification for bonding leave. Standard FMLA eligibility still applies: at least 12 months with the employer, at least 1,250 hours during the prior year, and a work location where the employer has at least 50 employees within 75 miles. Timing your leave around the expected delivery date and court order is worth discussing with HR well in advance.