By: Greg Liebl
We humans have this thing about wanting to create offspring. We have many reasons for it. Some people want to create a family, some have a desire to carry on the family name and values, some may seek to give meaning to their own lives by having a child, and yet some others may procreate simply because of the pressure their society/culture puts on them to keep up the “norm.”
Regardless of the reasons, some people don’t even need to think about it—getting pregnant that is. Yet for many others, getting pregnant is not quite as easy. In fact, according to The Fertility Institute, out of 100 couples in the United States, about 12 of them have trouble getting pregnant or carrying a pregnancy to term.
So, if you are one of this 12-ish percent of couples and living in North Dakota, what are your options? Well, one of the options available to couples dealing with infertility is adoption, which we have talked about several times before. Less often discussed, though, are assisted conception, gestational carriers, and surrogacy.
North Dakota defines these terms in Chapter 14-18 of the North Dakota Century Code (N.D.C.C. § 14-18-01) as follows:
“Assisted conception” means a pregnancy resulting from insemination of an egg of a woman with sperm of a man by means other than sexual intercourse or by removal and implantation of an embryo after sexual intercourse but does not include a pregnancy resulting from the insemination of an egg of a wife using her husband’s sperm.
“Gestational carrier” means an adult woman who enters into an agreement to have an embryo implanted in her and bear the resulting child for intended parents, where the embryo is conceived by using the egg and sperm of the intended parents.
“Surrogate” means an adult woman who enters into an agreement to bear a child conceived through assisted conception for intended parents.
To illustrate how these definitions work in application I have created the table below using a fictitious couple, Jack and Diane.
| SPERM | EGG | CARRIED BY: | RESULT |
|---|---|---|---|
| Jack’s | Diane’s | 3rd Party | GESTATIONAL CARRIER |
| Jack’s | 3rd Party | Diane | ASSISTED CONCEPTION |
| Jack’s | 3rd Party | 3rd Party | SURROGATE |
| Jack’s | 3rd Party | 3rd Party Egg Contributor | SURROGATE |
| 3rd Party | Diane’s | Diane | ASSISTED CONCEPTION |
| 3rd Party | Diane’s | 3rd Party | SURROGATE |
| 3rd Party | 3rd Party | Diane | ASSISTED CONCEPTION |
| 3rd Party | 3rd Party | 3rd Party | SURROGATE/ADOPTION |
So what does this mean for my significant other and me, legally? Good question. Answer: It depends on which option you choose from above, that is, if you are able to choose.
In North Dakota, Assisted Conception is the least regulated, statutorily. What I mean is North Dakota recognizes Assisted Conception as legal and does not require a couple to hire an attorney to have hearings and/or obtain Court Orders. Basically, the necessary paperwork is typically handled by the fertility clinic. That said, North Dakota’s version of the Uniform Parentage Act requires the woman and the man who intends to be the child’s parent to consent to the assisted reproduction in a signed record (N.D.C.C. § 14-20-62), and a sperm or egg donor is not a parent of the resulting child (N.D.C.C. § 14-20-60).
Gestational Carriers are also recognized as legitimate, as long as the right procedures are followed. In this regard, parties interested in utilizing the Gestational Carrier option must obtain a “Gestational Carrier Agreement.” Under North Dakota law, a child born to a gestational carrier is the child of the intended parents for all purposes, and is not the child of the gestational carrier or her husband (N.D.C.C. § 14-18-08). Keep in mind, though, that North Dakota’s definition of a gestational carrier requires the embryo to be created using both the egg and the sperm of the intended parents. If donor eggs or donor sperm are used, the arrangement is treated as a surrogacy, which is discussed below. These Agreements can contain all sorts of provisions, from how the fertilization will occur to how the birth certificate will be handled. And, although not required, it is a good idea to obtain a pre-birth Court Order outlining how things will go at the birth of the child. Also note that the intended parents are responsible for the pregnancy-related costs, including labor and delivery, incurred by the gestational carrier (N.D.C.C. § 14-18-09).
That leaves us with the Surrogate option. Surrogacy Agreements are “void” in North Dakota. What this means is that if you have an agreement with a surrogate, and that surrogate changes her mind as to whether she wants to parent the child, the Court will not enforce it. In fact, North Dakota law provides that the surrogate is the legal mother of the resulting child, and her husband, if he is a party to the agreement, is the legal father (N.D.C.C. § 14-18-05). As a result, intended parents in a surrogacy arrangement will generally need to complete an adoption to become the child’s legal parents. Extra caution will be needed if exploring this option.
One more thing to keep in mind: North Dakota’s assisted conception and parentage statutes were written decades ago, and they use terms like ‘husband,’ ‘wife,’ ‘man,’ and ‘woman.’ That doesn’t mean these options are off the table for same-sex couples or unmarried intended parents. It just means the current state of our laws can create uncertainty, especially with birth certificates and parentage orders. Unmarried couples also have more to think about, because some protections in the law are tied to marriage. If either applies to you, talk with an attorney before you start the process so your rights as a parent are secured from day one.
If you need assistance with navigating the legal aspects of assisted conception in North Dakota, please contact us!
