ASRM Legally Speaking

Utah Surrogacy Law Challenged…

Genetic parents of twins and the twins’ gestational carrier have filed a lawsuit in the U.S. District Court in Utah, asking the court to declare that state’s surrogacy statute unenforceable. The parties are also seeking to validate their contract with each other and to order the state’s Office of Vital Records and Statistics to issue birth certificates listing the twins’ genetic parents as their legal parents. Under Utah’s surrogacy statute, contracting with a woman to carry a child for profit is a misdemeanor. While unpaid surrogacy and gestational carrier arrangements are not illegal, they are not recognized and cannot be enforced. The law also requires both the surrogate or carrier’s name be listed on the birth certificate as the child’s legal mother, and, if she is married, her husband’s name as the child’s legal father. Since the carrier in this case was unmarried, the genetic father’s name was able to appear on the birth certificate as the twins’ father. At present, however, his wife’s parental rights will only attach through an adoption.

The parties are hoping their case will pave the way for others in similar situations in Utah. A few states, including Massachusetts and Illinois, have resolved these issues through litigation or legislation. (See Legally Speaking: Spring ’02 , Winter ’02, Winter ’99.)
J.R., M.R., W.K.J. v. State of Utah, U.S.Dis.Ct.(Utah), Case No. 2:02 CV 195 (filed 3/6/02).

Delaware Court Orders Lesbian Ex-Partner to Pay Child Support…

A Delaware Family Court has ordered a woman to pay child support for the son that she and her former lesbian partner created together through fertility treatments. The women separated after the child’s birth. Karen, the biological mother, sought mandatory child support after Carol was awarded permanent visitation rights. Carol argued against the child support order, arguing that she had no biological or adoptive connection to the child and that Delaware does not legally recognize same-sex couples. Under a broad interpretation of the Delaware Parentage Act, the court ordered support despite the absence of any biological connection between Carol and the child. An appeal is pending.
Chambers v. Chambers, Fam.Ct. (Delaware) No.CN00-09493 (2/5/02).

British High Court Decides Gestational Carrier is Mother of Twins…

An international legal fight continues in a highly publicized gestational carrier arrangement between a California couple and a British woman who carried the couple’s genetic twins. The agreement was to give birth in California with the genetic parents taking immediate custody upon birth. Problems arose when the genetic parents requested a selective reduction procedure, the carrier refused, and the genetic parents threatened not to pay her. The carrier then decided to keep the twins. The American couple applied to a British court for a declaration of international abduction, arguing the twins were residents of California based on the biological father’s residence there. The British High Court has now rejected the argument, ruling that under British law the carrier is the mother of the twins and the only person with parental responsibility. The genetic parents are expected to appeal.
The Times, 2/26/02; The Guardian, 2/19/02; The Daily Telegraph, 2/19/02.

Australian Authorities Grant Permission for Preimplantation Genetic Diagnosis/IVF…

In a case very similar to that involving Adam Nash in Colorado, a three-year-old Australian girl was born with Fanconi anemia, a rare genetic disease that is usually fatal before age 30. Her parents, who were already planning to have more children, have been granted permission by Victoria’s state Infertility Treatment Authority to use IVF to create embryos and then select one with the same genetic tissue as the affected child, in the hope of ensuring a bone marrow match. The Authority’s chief executive officer stated that the procedure would be allowed for use for a terminally ill sibling where all other avenues of treatment have been explored and where the child was not being produced solely as a means to an end.
The Canadian Press, April 16, 2002.

UPDATE: Disciplinary Action Against British Fertility Doctor Dropped...

Just as disciplinary hearings were set to begin against one of IVF’s leading pioneers, Professor Ian Craft, Director of the London Fertility Centre, the General Medical Council (GMC) decided not to proceed. Since last October, the GMC had been investigating allegations that Professor Craft violated government guidelines allowing no more than two embryos per embryo transfer. Since the government guidelines are not laws, doctors can legally use more than two embryos if they believe it can be justified on medical grounds. After finishing the investigation, the GMC decided to drop the case.
The Times, April 13, 2002.

UPDATE: Posthumous Parentage Case Filed in Britain...

Three-year-old Liam Blood is beginning his own court battle after his mother, Diane Blood, fought and won a lengthy court battle to conceive him and his brother. (See Legally Speaking, Spring ’02, 12/00, and 3/97.)

Lawyers on Liam’s behalf have filed a challenge to the Human Fertilisation and Embryology Act (HFEA), which states that a man who fathers a child through the use of his sperm after his death is not the child’s legal father and there f o re cannot be listed on the child’s birth certificate. The lawyers argue that the HFEA is incompatible with Liam’s right to respect for private and family life as guaranteed by the Human Rights Act. They claim that the HFEA also discriminates between children conceived after their fathers’ deaths and others born as a result of fertility treatments.

This case follows on the heels of the first state high court opinion in the United States involving posthumous reproduction, (Woodward v. Commissioner of Social Security, SJC-08490 (1/3/02); Legally Speaking, Spring 2002.) That court found that twins born to a widow using her deceased husband’s cryopreserved sperm may be entitled to inherit from him under Massachusetts law and therefore be entitled to survivors’ Social Security benefits if certain criteria are met. Even if all criteria are established, the Massachusetts court noted that there may still be issues of timeliness or competing interests of other heirs (including children already in being) that would preclude inheritance.
The Guardian, April 16, 2002.

UPDATE: Ex-Prison Guard Sentenced for Sperm-Smuggling...

A former prison guard at the Allenwood Federal Prison in Pennsylvania has been sentenced to 27 months for his role in a sperm smuggling operation. The guard pleaded guilty last year to charges of bribery and conspiracy, after prosecutors alleged he accepted between $200 and $300 per trip to smuggle out the sperm of an imprisoned mobster. (Legally Speaking, Spring ’02). The intended father had six months added to his racketeering sentence. His wife, who did not get pregnant, is serving a one-year probation sentence.
The Associated Press, April 19, 2002.

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