Over the years, traditional views of motherhood have been slowly changing. Increased equality for women and medical-scientific progress bring new legal issues to the attention of the courts and the public. Specifically, medicine has recently uncovered new ways to assist in reproduction. These methods are generally known as assisted reproductive technology. Assisted reproductive technology may be used by women for infertility or for genetic reasons.
There are several types of assisted reproductive technology:
- Fertility Medication—agents that stimulate the development of follicles in the ovary;
- Artificial Insemination—the sperm of a donor (usually someone other than the husband) is implanted in the woman to permit natural fertilization of the female egg (ovum) by the sperm;
- In Vitro Fertilization—the technique of letting fertilization of the male and female gametes (sperm and egg) occur outside the female body. There are many types of in vitro fertilization;
- Embryo Transfer—where a fertilized egg is flushed out of a woman and transferred to an infertile woman. The egg was fertilized with the sperm from the infertile woman’s husband or partner;
- Surrogacy—where a couple enters into a contract with another woman (the surrogate mother) who agrees to carry the couple’s child. The surrogate mother may be impregnated through artificial insemination or in vitro fertilization. Under the terms of the preconception contract, the surrogate agrees to give the child to the couple at birth.
A number of legal issues arise from these technological developments. For example, sperm donors could be vulnerable to challenges like custody, access, inheritance, and support for artificially inseminated children. This vulnerability encourages secrecy around artificial insemination, which may not be in the best interests of artificially inseminated children or families.
Surrogate motherhood may be very difficult, physically or psychologically, for the surrogate or the family, and at present is not legally compensable in Canada, resulting in an alleged black market in surrogacy. Cases have recently come to light in which errors in in-vitro fertilization resulted in an embryo belonging to one couple being implanted in another couple. Accordingly, reproductive technologies have created challenges for health and family law both. Most of these issues have not been considered by the courts, but any woman who will be involved in some form of artificially assisted conception should be aware of the potential problems.
In addition, the advent of assisted reproductive technology has raised a concern that judicial intervention into pregnancy and birth may increase, in part because technological and medical advancements may allow the fetus to be seen as a separate entity from the pregnant woman. This has positive consequences—increased awareness of risks to the fetus with avoidance of harmful exposures and treatment of disease before birth. However, it also has the potential to establish an adversarial relationship in which a pregnant woman’s autonomy is compromised. This has serious negative implications for all women who become pregnant.