Changing Tides in Adoption and Assisted Reproductive Technology: A Q&A with Colin Rogerson

From 30 April – 2 May 2023, Mills & Reeve’s Head of Fertility Law Colin Rogerson attended the Academy of Adoption and Assisted Reproduction Attorneys (AAAA) Annual Conference in California.  The theme of the conference was Changing Tides in Adoption & ART (Assisted Reproductive Technology). He joined around 200 fellows of the AAAA to hear from speakers such as Jacoba Ballard, the daughter of the rogue fertility doctor who was at the centre of the Netflix documentary Our Father, and to discuss topics such as the implications of the Dobbs case (overturning Roe v Wade). 

Trainee Solicitor Anthony Cule asked Colin about the conference and what we can learn from it about the future of adoption and assisted reproductive technology.

Hello Colin. Firstly, what is the AAAA, and how did you become a fellow?

AAAA is the Academy of Adoption and Assisted Reproductive Technology Attorneys.It is an organisation of nearly 500 lawyers who are recognised as leaders in their respective jurisdictions in either the fields of adoption, assisted reproductive technology, or both.AAAA started out in North America but a few years ago opened up membership to non-US and Canadian lawyers who meet their criteria.I became a Fellow in 2018 and am still just one of three UK based Fellows. Other Fellows practice in the USA, Canada, Israel, Spain, Argentina, Australia and Ireland.

The title of the conference was Changing Tides in Adoption and ART. What did this mean for the conference?  How was this theme reflected in the speakers and sessions, for instance?

The conference was held in Huntington Beach, California, which is a coastal city in Southern California known for its surfing. The panels and sessions at the conference are designed to help Fellows keep up to date with legal developments both within the US and outside.

And what were some of the key points arising from the talks?

The conference is divided between plenary sessions (applicable to both assisted reproductive technology and adoption practitioners) and then either ART sessions or adoption sessions. I attended the plenary and ART panels, which were more relevant to my legal practice.

As lawyers, perhaps especially in this field, many of us feel that we have an obligation to push for law reform so that laws protect families created through adoption and assisted reproduction. Speakers included members of the first “three parent family” created through surrogacy in California, donor conceived people who had been the victims of fertility fraud and lawyers and advocates who had achieved law reform in their respective legislatures (or were fighting attempts to restrict access to abortions).

I understand there was discussion about the Dobbs v Jackson Women’s Health Organization decision, which overturned Roe v Wade. What can we take away from this discussion?

The aftermath of the overturning of Roe v Wade, which prior to the Dobbs decision, protected “the right to abortion” at a federal level in the United States, has been felt not just in the US but around the world.

The Supreme Court of the United States has generally been regarded as granting rights to citizens, rather than removing them.Indeed, when you consider civil rights on a federal level in the US, most “rights” have been granted by the Supreme Court as opposed to the Federal Government (think interracial marriage, de-segregation of schools, same-sex marriage to name a few).

One of the effects of the Dobbs decision is to make the issue of abortion a decision to each State. There are currently 17 abortion bills in 13 US states which, from an assisted reproductive technology perspective, raise implications for IVF, miscarriage and ectopic pregnancies.

Could you say a little about the impact of that decision on IVF treatment and on reproductive technologies more broadly?

The decision itself does not directly touch upon IVF treatment, but the concern is that anti-abortion lobby groups push for so-called “personhood bills” which seek to define life commencing at the point of conception. Depending on the language, this could mean that an embryo created in a fertility lab is considered a “person”. If a lab technician accidentally knocks over a dish, that may be negligent but is it an abortion? Could they be prosecuted for an unlawful abortion or even murder?

Abortion is an important issue to consider in third party reproduction. There are decisions that any parent has to make about whether to proceed with a pregnancy if, for example, there is a genetic disorder. Within surrogacy, these discussions are even more important because it is important to match with a surrogate who shares the same views on these topics. If states restrict abortions, it may be necessary for the surrogate to travel to another state. All of this has potential implications for assisted reproduction.

Finally, there is a wider concern about what “the next issue” is before the Supreme Court. Could there be similar challenges against same-sex marriage which could have implications for the recognition of same-sex parents and access to assisted reproduction.

We read a lot about the state of protections of reproductive rights in the USA, and it’s fair to say a lot of what we read is quite troubling. Is there cause for optimism? [or is it as bad as it seems?]

Restrictive access to abortion care is indeed troubling. Some restrictive abortion laws are putting women’s lives at risk by making them carry unviable pregnancies to term, or medical intervention is not permitted until the mother’s life is in immediate danger.

But all is not lost. Several states have their own constitutional protections for abortion. Last year, Kansas – known for being a strong Republican state – was the first State to put the issue of a constitutional amendment to remove abortion protections from the State’s constitution, to a referendum. The amendment failed by a considerable majority.

Finally, this is all happening ‘across the pond’. Why is it important that we in the UK follow how these issues are dealt with in the USA?

I think there are two reasons. There is some credence to the old saying “when the USA sneezes, the UK catches a cold.” If you look at issues such as gender and race, many of these seem to gain the spotlight in the US and then are debated in the UK. 

Secondly, the US is the world’s largest international surrogacy “market”. For UK parents who have the financial resources to undertake surrogacy in the US, it is usually the destination of choice. These issues impact on our clients’ decision-making processes and it is important for any lawyer to have an understanding of the issues that concern and affect their clients, even if it falls outside the direct remit of our involvement.    

Key Takeaway

The Dobbs decision is worrying and has the potential to impact on a number of areas of assisted reproduction. The US is still the destination of choice for international fertility tourism, particularly for cross border surrogacy arrangements and this is not likely to change.

At Mills & Reeve we recognise that this is a complicated and sensitive area of law, which intersects with one of the most life-changing decisions you can make.  If you are considering surrogacy or need advice on this complex and ever-changing area of law, our specialist team is ready to speak to you.

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Every piece of content we create is correct on the date it’s published but please don’t rely on it as legal advice. If you’d like to speak to us about your own legal requirements, please contact one of our expert lawyers.

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