ASRM Legally Speaking

California Custody Battle Ongoing Over Child Born through Embryo Mix-Up

A California case is pending over the custody of a child born over a year and a half ago to a single woman who thought she had achieved her IVF pregnancy using anonymous donor egg and donor sperm. The pregnancy was apparently the inadvertent result of an embryo transfer from the same group of embryos created by a married couple, who had used donor egg and husband sperm and who were cycling at the same time. That couple gave birth to a girl; the single woman to a boy. The patients became aware of the mix-up when the children were almost a year old. According to published reports, that followed an anonymous letter to the state and instigation of a state medical board investigation after which, with the doctor’s encouragement, the three patients met in January in an unsuccessful attempt to work out an informal resolution. A month later, the married couple sued the single woman for custody. The lawsuit is currently pending. The single woman has since sued the medical program for malpractice. Egg donation and inadvertent embryo mix-up presents a unique challenge in defining maternity and parentage. By agreement, the parties are not making public comments. Attempts to mediate the case have been unsuccessful to date.
Mercury News (8/2/02).

Former UC-Irvine Patients’ Lawsuit to Determine Twins’ Parentage Rejected

A state appellate court recently upheld the dismissal of a lawsuit brought by a former University of California-Irvine patient couple to try to determine whether they are the genetic parents of twin girls born to another couple in 1988. The decision affirms a lower court’s ruling that both public policy and the state’s rules of evidence precluded the lawsuit. The couple initially sought DNA testing and custody. They dropped their custody claim but continued to seek visitation with the now 14-year-old girls, reportedly hired private investigators to do surveillance on the family and the girls’ school, and threatened to tell the children about themselves. Declaring it hearsay and therefore inadmissible, the lower court refused to accept as evidence a “declaration” from the program’s embryologist that records seized by the FBI indicated the second woman had received eggs from the first, resulting in a twin pregnancy. That court also ruled that even if such evidence did establish a genetic connection, it was in the best interest of the children to dismiss the lawsuit.

The plaintiffs had previously received a monetary settlement from the university after learning that their stored embryos had been misdirected. The appellate court found that the couple’s rights were vindicated with that settlement, stating ‘[t]he rights still at issue are not the [couple’s] rights. They are the rights of the Does [the rearing parents] and their twins to be free from the interference of strangers who have no standing to pursue their demands .... and cannot alter the focus of this issue by characterizing the Does’ rights as mere privacy interests that may, under appropriate circumstances, give way to greater rights.”
Prato-Morrison v. Doe, B151028 (L.A.Sup.Ct. 10/29/02); (Met.News Co.10/20/02).

British Clinic’s ICSI Mix-Up Results in Twins and Lawsuit

Twins born to a patient at the Assisted Conception Unit at Leeds General Infirmary are the result of a mistaken fertilization of her eggs through intracytoplasmic sperm injection (ICSI) with the sperm of another patient. The woman, who is white, gave birth to mixed-race twins earlier this year. The man and his wife, who are black, were unsuccessful in their own attempts to achieve a pregnancy. Although the case has been pending for months, and the head of the U.K.’s High Court Family Division has repeatedly said that there is no suggestion the twins would be uprooted from their environment, the court has also just recently ruled it will determine both the legal parentage and custody of the children early in 2003.
BBC News Online (11/4/02); BioNews (11/4/02).

Florida Appellate Court Decides Sperm Donor Has No Parental Rights

After what it termed “protracted, unnecessary litigation,” a Florida appellate court has determined that a sperm donor has no parental rights to twins he helped a lesbian couple conceive and has consequently thrown out the parties’ stipulated agreement as to visitation. The case tested Florida’s ART statute, which, although quite comprehensive, failed to define the term “sperm donor.” Lucas, a single male friend of the couple, had tried to claim he was not a sperm donor but part of a “commissioning couple” under that law, and thereby the children’s father (See Legally Speaking Summer ‘99). The court confirmed that both the contract between the parties and the Florida donor insemination statute provided that the sperm donor had no parental rights or responsibilities. The court noted that even though the statute did not define a sperm donor, the contract clearly labeled him as a donor, indicated sperm was the only donation re q u i red of him, and explicitly stated he would not have or seek any parental right or obligations. Lucas’s attempts to have paternity testing and the visitation agreement were all labeled as errors of both the parties and the lower court. Instead, the appellate court labeled him a “statutory stranger to the children” and ruled, “This is a simple case that can be resolved in a one-sentence opinion, to wit: Danny A. Lucas is a sperm donor, not a parent, and has no parental rights….” The case suggests the benefit of clear contracts between parties to collaborative reproductive technology arrangements, even if the law leaves or creates some ambiguities.
Lamaritata v. Lucas, Case No. 2D01-3293 (2nd Dist.Ct.App. of FL) (8/16/02).

Sperm Bank Falls Under California’s Health Care Provider Law

A California appellate court has ruled that a sperm bank is a “health dispensary” and therefore a “health care provider” protected from punitive damages under California law absent proof of malice or fraud. The case involves a child, now 13, born through donor insemination, and now diagnosed with autosomal dominant polycystic kidney disease (See LS, Fall ’00). In previous rulings, the California courts denied the donor complete anonymity, and he had been forced to submit to a deposition confirming his family history of kidney disease and the fact that he put some information about that history on his donor forms. The family claims that information was never given to them, and that had they been informed, they would have chosen a different donor.

The Court of Appeals also ruled that the child could not recover general damages or lost earnings, rejecting that claim as a form of “wrongful life,” a legal concept rejected by California and many other state courts. The reasoning behind such a principle is that it is impossible either to find that being born with an impairment is worse than never being born at all or to calculate such damages. The family’s attempt to distinguish the case, by claiming that the defendants “caused” the injury, was rejected. Despite the fact that the couple would have chosen another donor, the court ruled it was the donor’s genetic abnormality, not the defendants’ alleged misconduct, that literally “caused” the impairment. Despite denying petitioners’ motion for reconsideration of a summary adjudication on the issue of fraud (and therefore punitive damages) as untimely, the court noted that evidentiary issues had been raised about the source of handwritten notations on a page of the Donor Profile and whether the original page was deliberately withheld from petitioners, and that the lower court had discretion to allow discovery on that issue.
Johnson v. Sup.Ct., B155896 (Ct.App.2nd.App.Dis. (8/30/02); Met. News-Enterprise (9/3/02).

Erratum

In the pending Texas litigation arising out of an allegedly unauthorized egg-sharing arrangement (LS Fall '02), it should be clarified that according to her attorney, the donor entered into a legal agreement with the first couple authorizing them to use her eggs for themselves only, did not enter into any legal agreement with the second couple and was totally unaware of any egg-sharing planned by the couples or physician involved. OPTIONS, the agency that recruited the donor, states that since its inception, it has required all of its donors and recipients to sign legal agreements, with separate legal counsel, one purpose of which is to avoid legal issues such as have arisen in these pending cases.

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