ASRM Legally Speaking

Court Reverses, Upholds Cryopreservation Agreement in Frozen Embryo Dispute…

The Washington State Supreme Court has issued its long awaited opinion in a case involving the disposition of two frozen embryos embroiled in a divorcing couple’s lawsuit. In upholding the couple’s prior agreement, the court gave neither party what it sought. The couple had one child born from the initial embryo creation, which involved both an egg donor and gestational carrier. The husband wanted the remaining embryos donated to an out-of-state couple for their use. The wife wanted them implanted in a gestational carrier to carry and birth a sibling for the couple’s child born from the initial embryo transfer. Both the egg donor and previous gestational carrier had supported her in her claim. Neither of the parties sought to have the embryos destroyed. Despite their competing claims to use the embryos, the court upheld the provision in the former couple’s cryopreservation agreement with their IVF program to thaw and discard the embryos after five years. In doing so, the court employed a strict contract analysis. The decision reversed the Court of Appeals decision, which had awarded the embryos to the ex-husband. In embracing a contract analysis, the court’s decision lines up with an earlier previous frozen embryo decision from New York (Kass v. Kass, Legally Speaking, Winter 1997) and opposes the first such decision (in Louisiana, Davis v. Davis, Legally Speaking, Fall 1993) and more recent ones in Massachusetts (A.Z. v .B.Z., Legally Speaking, Summer 2000) and New Jersey (J.B. v. M.B., Legally Speaking, Fall 2000). One consistent point, however, is that by upholding the prior agreement, neither party could use the embryos against the other’s wishes. To date, no final state court has reached such a decision, by whatever analytical route.
Litowitz v. Litowitz (WASup.Ct. Dkt.No. 70413-9; 6/13/02)

Litigation Erupts in Texas Over Egg-Sharing Donation…

According to published reports, an egg donor has sued two couples who shared her eggs, seeking to stop their usage by anyone without her written consent and asking for money damages. In turn, the second couple, who had sought to use four remaining embryos created with the donor’s eggs and husband’s sperm, has sued the egg donor, the doctor, and the clinic. The interlocking disputes involve an anonymous donor located through the California-based Options National Fertility Registry, two infertile couples who shared her eggs to create embryos, Michael A. Allon, M.D., and Obstetrical and Gynecological Associates of Houston, Texas.

According to their lawsuit, the second couple, the McBrides, claim the doctor recommended the egg sharing arrangement to them, but when they went to use their second set of frozen embryos (after an initial miscarriage), the doctor then told them that he did not have the donor’s permission. His attorney has been quoted as saying the doctor had relied on the donor’s initial permission and Texas law. The donor claims she only authorized the initial couple to receive her eggs and at no time was asked, informed, or agreed to her eggs being used by any other couple. The McBrides are claiming the embryos are “children in waiting” whose fate should be determined on a “best interest of the embryos” standard. It appears there was no legal agreement in place between the donor and either recipient couple outlining their mutual understandings.

These interrelated cases challenge the assumption of many programs and intended parents that they are free to use donated gametes or embryos as they wish, despite a lack of clarity in the law or documentation. Whatever their outcome, these cases suggest a need to review the sufficiency of existing protocols, consents, and documentation in light of the current uncertainties in the law in most states.
J.A. Zuniga, Houston Chronicle, 5/31/02

Sperm Donor Children Begin Case for Access to Donor Information in Britain…

A British High Court action has been brought by a 29-year-old Australian woman and a 6-year-old British child who are seeking non-identifying information about the sperm donors who helped conceive them. They are also pressing for the establishment of a voluntary contact register and the collection and storage of more information about future donors.

Under the current Human Fertilisation and Embryology Authority law in Britain, children have access to non-identifying information about their donors. However, this provision of the act is limited both to children born after the act came into effect, and to children who have turned 18 years old. Lawyers in the case are arguing their claims under the Human Rights Act of 1998, which guarantees the right to form a personal identity, and under the anti-discrimination theory that sperm donor children should have the same rights as adopted children to trace their genetic parents.
BBC Online, 5/22/02; The Times, 5/23/02; The Independent, 5/23/02.

White Couple Gives Birth to Black Twins After British Clinic Mix-Up…

A white couple living in Britain has given birth to black twins, apparently the result of a mix-up by their infertility clinic. The exact nature of the clinic’s mistake is unknown, whether the children resulted from a misimplanted fertilized embryo or from a mistake in fertilizing the woman’s own eggs. Court injunctions are in place prohibiting the media from publishing details of the case, including the names of the parties, the clinic, or the hospital. Reportedly the white couple and a black couple, who also underwent in vitro fertilization at the clinic, want custody of the children, and the case is expected to be heard in court in October. Similar cases have been reported in the United States and the Netherlands, involving both mistransferred embryos and misfertilized eggs. The case has sparked much controversy, not only over how the error could have occurred and can be avoided in the future, but also suggestions that this case is just a more obvious example — due to the interracial nature of the error — of an error occurring more frequently than acknowledged within assisted reproductive technology programs.
The Globe and Mail, 7/9/02; The Guardian, 7/9/02; Scotsman.com, 7/10/02.

Woman Escorted out of Kuwait by Canadian Embassy after Surrogate Procedure…

After entering into a gestational carrier contract with a Kuwaiti couple, a Canadian gestational carrier traveled to Kuwait for the embryo transfer. The plan, facilitated through a California attorney and an Internet Web site, was for the woman, Shani Russell, to wait until confirmation of the pregnancy, return to Canada, and give birth in California. She was to be paid $10,000.

The plans went awry when an apparent family tragedy prompted the carrier to request an early return home, prior to pregnancy confirmation. According to Ms. Russell, but denied by the intended parents, the couple threatened to hold her against her will. She also allegedly feared arrest in Kuwait, where a “fatwa,” an Islamic legal ruling, bans this type of surrogacy, a fact that she claims not to have known prior to the July procedure. After her frantic emails to Canadian governmental authorities pleading for help getting out, Canadian embassy officials escorted her from her hotel in Kuwait City to the airport for a flight home. Since returning home, Ms. Russell has had a negative pregnancy test. According to her mother, Ms. Russell had hoped to use some of the money for her own in vitro fertilization as she has no fallopian tubes; her mother reports she is now considering egg donation instead.
D.Ruppe, ABC News Internet Ventures (6/23/02).

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