12/26/2012 12:51 pm ET Updated Feb 25, 2013

Science Outpacing Family Law?

Law strives to keep up with science, and nowhere is this clearer than in the area of family law, where reproductive technologies have been evolving quickly. It's been only a few decades since the first baby was conceived by in vitro fertilization (IVF) in 1977, but now even more is possible than conceiving outside a human body: human genetic material may become unnecessary after Stanford researchers published a 2009 article in Nature reporting that they had determined the genes that coax human embryonic stem cells into becoming cells that form eggs and sperms.

Alternative reproductive technology has also allowed for surrogacy arrangements, whereby one woman carries another couple's fetus to term. In fact, a surrogacy industry has arisen in India -- among other fertility hotspots -- with women in India serving as surrogates.

The law has attempted to keep up with these developments, but not effortlessly. Some states enforce surrogacy agreements, others do not. Some courts have ordered sperm donors to pay child support, others have not. Just last term, the U.S. Supreme Court held that posthumous children, conceived through IVF after their father's death, are not necessarily automatically eligible for Social Security survivor benefits, which instead depend on state law.

One of the most recent developments in the fertility industry was reported in the LA Times last month: Couples may now undergo IVF with an embryo from a batch created for many couples. In other words, there is no genetic connection between the couples and the embryo. However, the costs are lower for this IVF option because the laboratory work and the donors are paid for only once in creating a single batch of embryos used by multiple couples. In fact, this option costs only $9,800 at the clinic offering it.

Meanwhile, a traditional cycle of IVF, using one's own genetic material, generally costs between $10,000 and $15,000 and pregnancy is far from guaranteed. In contrast, by some estimates, adoption from the American foster care system generally costs almost nothing, while adoption through a private agency ranges from $5,000 to $40,000 and international adoption runs between $15,000 and $30,000. The adoption process has also often become restrictive, with China now screening for the health and weight of prospective foreign adoptive parents.

While selecting the method of expanding one's family is a personal and sensitive matter, the relative affordability of alternative reproductive technology -- due to the recent strides in creativity -- gives the adoption process a run for its money. While thus far it seems that high adoption costs and delays have driven demand in alternative reproduction technology, perhaps decreasing costs in such technology will now prompt the streamlining of the adoption process.

In addition to challenging the adoption process, new alternative reproductive technology options will also challenge family law to address the inevitable legal issues, most likely prompted by child custody or support claims arising from such technology. As family law continues to evolve on this topic, no doubt incentive structures will emerge that, in addition to financial costs, will become factors to watch.