Assisted reproductive technology (ART) is a class of fertility treatments that help people who want to be parents have kids of their own, as an alternative to adoption, and usually with at least one parent in the couple providing genetic material (in the form of sperm or eggs). Some ART involves in vitro fertilization (IVF), in which one parent’s egg is fertilized with the other parent’s sperm to create an embryo, and the embryo is then implanted into the birthing parent’s uterus. ART also can include gamete donation or using a gestational carrier, or surrogate, among other procedures to help intended parents have children when using their own egg, sperm, and uterus is not an option. My previous blog post about ART focused on informed consent of gamete donors, the perpetuation of gender stereotypes, and how to best maintain donor autonomy. I recommended that informed consent be required for egg and sperm donors and explicitly acknowledge that anonymity is not guaranteed with direct-to-consumer genetic testing. I also recommended that a statute be passed to explicitly state that a donor’s spouse cannot pursue legal parentage of a child born with their spouse’s egg or sperm, and donor agreement contracts should only require the donor’s signature, to maintain donor autonomy around their spouse’s involvement.

This blog post focuses on the ramifications of heteronormativity in ART, especially gamete donation; these ramifications extend to who can become donors, the parentage of children born using gamete donors, and insurance coverage for couples using certain forms of ART. Heteronormativity is the ideology that maintains that heterosexuality is the “norm” and that bases societal norms around straight couples and partners involving one man and one woman as parents in the family unit. These societal norms include assuming that any given woman’s partner is a man or any given man’s partner is a woman, and that the normative family structure is one with one mother, one father, and their genetic children. Couples can be made up of people who are both women, both men, or with one or more non-binary person, so assumptions that all couples are made up of one man and one woman is harmful to people whose relationships and families do not look like that. Importantly, lesbian and gay couples need donated gametes and ART in order to be able to have genetic children, because both members of the couple have the same type of gamete (i.e.: sperm or egg) and cannot provide the other one. Therefore, ART is extremely important for the queer community and for queer people to have families they want, and the development of ART has provided fantastic, needed methods for queer couples to have genetic children that would not be otherwise possible.

Queer men are prohibited from being sperm donors due to societal stigma

The Food and Drug Administration (FDA) explicitly prevents men who have had sex with another man from donating sperm (and blood, though the amount of time since having sex is much shorter) due to presumed risk for infectious diseases[1]. This policy is particularly harmful because it corroborates the societal stigma around gay men that they are more likely to have sexually transmitted diseases. This stigma is rooted in heteronormativity and homophobia, and this policy gives that harmful stigma legal and medical credibility. Ultimately, this regulation prevents queer men from serving as sperm donors. Therefore, the policy about who can donate biological materials must change so that it is not discriminating against queer men. The FDA requires that all donated biological materials be tested for infectious diseases, and people with known infectious diseases (such as HIV or Hepatitis) are not allowed to donate blood or gametes. The FDA should maintain mandatory testing of all donated biological materials for infectious diseases in order to protect recipients of the material. However, they should allow all healthy people to donate gametes (and blood). It is discrimination to prohibit men who have sex with men from donating biological materials.

Assumed heteronormativity in legal language regarding gamete donation has parentage ramifications

Legal literature around parentage when using assisted reproductive technology assumes heteronormativity, therefore setting a legal precedent for language that many of these contracts follow[2]. In Katherine Johnson’s article about gamete donor partner involvement, she had several quotes from contracts that involved donor’s “husbands”. Her excerpts from contracts are below:

“…the Egg Donor and her Husband/ Partner do not desire to have a parental relationship with any child born pursuant to this Agreement … ([Johnson’s] italics)”[3]

“Donor and Donor’s Husband, if any, hereby agree that once the eggs are removed from the Donor, they shall have no rights to said eggs […] Donor and Donor’s Husband, if any, specifically agree …([Johnson’s] italics)”[4]

These contractually relinquished parentage rights by the donor and “her husband” to children born with the donor’s eggs[5]. However, they would not require a non-husband spouse or partner to sign, thereby giving contractual credibility to a marriage between a husband and wife in a way that does not provide that credibility for a relationship between two wives or two husbands.

Gamete recipients for intended parents are the member of the couple with the uterus and that will be the birthing parent. As discussed in the previous blog post, the state laws of parentage regarding someone receiving donated eggs or sperm refer to their spouse as the “husband,” and he is usually mentioned in order to consent to parentage rights[6]. However, people with uteruses may have wives or non-binary spouses, who are not given the same legal credibility, rights, or responsibilities when a law specifies the gamete recipient’s “husband” will be the legal other parent of the child. The Uniform Parentage Acts of 1973 and 2002 establish legal parentage and used gendered language that therefore did not provide equal parentage rights for children with same-sex couples[7]. The Uniform Parentage Act’s most recent update in 2017 changed this language to provide equal, legal parentage for children born to same-sex couples by updating the language to be gender neutral[8]. The 2017 version of this act has been enacted in 7 states and has been introduced in 3 states, but previous versions that used gender language remain in effect in 15 states[9]. Laws around children born with ART should ensure that all intended parents are given parentage rights by using gender-neutral terminology such as “parent” and “spouse” in the text of the statutes. This gives credibility to the family unit and the relationships in that family, and ensures parentage rights and responsibilities to all intended parents when having a child using ART, which is not guaranteed when the text is gendered.

Heteronormativity in family structure has insurance coverage ramifications

Importantly, the content of the laws around assisted reproductive technology is almost always based on a heteronormative family structure in which a husband and wife are trying to have children. The law does not protect LGBTQ+ families and does not support the norms that queer people develop and try to maintain when building a family[10]. The current policies “incentivize conformity to traditional family norms,” sometimes requiring marriage or making it much harder for non-married couples to legally use a gestational carrier or IVF in order to grow their family[11]. In Louisiana, for example, Bill HB 1102/Act 494 requires that couples using a gestational carrier are married and using their own egg and sperm[12], therefore eliminating the option of using donor gametes and preventing lesbian or gay couples from using a gestational carrier. Insurance coverage for fertility treatments in some states, like in Louisiana HB 1102, specifically stipulates that a wife be inseminated with her husband’s sperm, thus excluding married same-sex couples from insurance coverage for ART[13]. Not all states require that insurance plans cover fertility treatments[14], which excludes LGBTQ+ couples from having genetic children. This policy prevents same-sex couples from getting insurance coverage for IVF treatment due to the need for donor egg and gestational carrier for gay couples or through donor sperm for lesbian couples. Marriage and Fertility lawyer and legal scholar, and editor of the Georgetown Journal of Gender and the Law, Rose Vacanti Gilroy argues that family codes should follow an “intent-based definition of parentage”, which would allow non-genetic parents who are involved in the decision to have a child or children and would be involved in raising the children to remain a parent under the law regardless of marital status[15].

Laws should require that insurance companies cover ART equally for all couples

Heteronormativity in parentage laws and laws covering ART is harmful because it perpetuates discrimination against queer people and it gives legal credibility to homophobic attitudes. A lack of policy to support queer people trying to grow their families perpetuates heteronormativity in state laws of family structure and into how those laws are put into practice. This ideology spills over into the medical practice of who can use fertility treatments, to guidelines around who can engage with ART and how, and to insurance coverage benefitting straight couples more than queer couples.

States have different requirements for insurance coverage for couples pursuing ART, and some of these policies discriminate against queer couples. Same-sex couples and single people experience infertility due to not having the right gamete combination (an egg and a sperm cell) among the parent(s) trying to grow their family. A policy should be enacted to require insurance to cover IVF treatment, including using donated gametes, in all cases in which a couple is unable to have a baby and experiencing infertility, regardless of marital status or gamete availability between the couple. Such a policy is important because it will allow couples experiencing infertility and queer couples to have genetic children. ART is very expensive, so insurance coverage will make this accessible to people from all backgrounds. People who want genetic children should be allowed to have them, which is why ART was developed.

ART has been an amazing medical development to allow queer couples to have genetic children, and the insurance and parentage policies need to ensure that queer people have the same opportunities to use this technology as straight people. Policies need to be developed in order to make that process feasible for queer couples, and to address the discriminatory nature of current state policies that favor straight couples over queer couples. In order for our society and legal systems to fully accept LGBTQ+ people and communities, new systems must be developed that fully take into account queer perspectives, goals, and community norms.

[1] The Practice Committee of the American Society for Reproductive Medicine and the Practice Committee for Society for Assisted Reproductive Technology, Guidance regarding gamete and embryo donation, (2021), https://www.asrm.org/globalassets/asrm/asrm-content/news-and-publications/practice-guidelines/for-non-members/recs_for_gamete_and_embryo_donation.pdf; Food and Drug Administration (FDA) & US Department of Health and Human Services, Guidance for Industry: Eligibility Determination for Donors of Human Cells, Tissues, and Cellular and Tissue-Based Products (HCT/Ps), (2007).

[2] Linda S. Anderson, Adding Players to the Game: Parentage Determinations When Assisted Reproductive Technology Is Used to Create Families, 62 Ark. Law Rev. 8 (2009); Uniform Law Commission, Parentage Act (2017), https://www.uniformlaws.org/committees/community-home?CommunityKey=c4f37d2d-4d20-4be0-8256-22dd73af068f; Katherine M. Johnson, My gametes, my right?: The politics of involving donors’ partners in egg and sperm donation, 45 J. Law, Med. Ethics 621 (2017); 2015 Me. ALS 296 | 2015 Me. Laws 296 | 2015 Me. Ch. 296 | 2015 Me. SP 358, Maine Parentage Act., (2015).

[3] Johnson, supra note 2.

[4] Id.

[5] Id.

[6] Id.

[7] Uniform Law Commission, supra note 2; Anderson, supra note 2.

[8] Uniform Law Commission, supra note 2.

[9] Id.

[10] Rose Holden Vacanti Gilroy, The Law of Assisted Reproductive Technologies: Imposing Heteronormative Family Structures onto Queer Families, 31 Tulane J. Law Sex. 27 (2022).

[11] Id.

[12] Representative Stuart J. Bishop, Louisiana HB 1102, (2016).

[13] Gilroy, supra note 10.

[14] Id.

[15] Id.