ASRM Legally Speaking

Parents’ Claims Against Program and Doctors for Failing to Reveal Egg Donor’s Cystic Fibrosis Carrier Status Meet with Mixed Judicial Reaction...

A New York trial court ruled on various claims involving an IVF program’s failure to advise parents that their egg donor had been tested, and found to be a carrier, for cystic fibrosis. The court dismissed some of the claims, but ruled that one can go forward. After the child was born with cystic fibrosis, the husband was tested and also found to be a carrier. The child was born with severe physical symptoms, necessitating two months in intensive care, several surgeries, a colostomy bag, and lifelong medical care. Shortly after the child’s birth, one of the defendant physicians wrote the parents, acknowledging the donor’s screening results and expressing regret that the results had not been given to the couple earlier.

The parents and the child sued for medical malpractice, alleging failure to properly screen the donor, inform plaintiffs of the positive screen, or test plaintiff father prior to conception. The plaintiffs sought punitive damages for the defendants’ allegedly “egregious, grossly negligent and reckless conduct.”

The court followed New York’s law disallowing wrongful life claims brought on behalf of a child under a public policy rationale that a child’s life cannot be valued or devalued as compared to not having been born, and dismissed most, but not all, of the plaintiffs’ claims. The plaintiffs argued that the child’s complaint did not rely on a wrongful life theory, but stated a relatively new legal claim for “negligent preconception and pre-implantation counseling” and that pre-implantation genetic diagnosis of the embryo should have been performed. The court rejected the argument and also rejected damages for the parents’ emotional distress. The court allowed damages necessary to reimburse actual expenses necessitated by the child’s disease which it found flowed from the defendants’ alleged breach of a duty to the prospective parents.

The court rejected an argument that the doctors were actually responsible for the child’s conception by manipulating the egg and sperm during the IVF procedure. It also ruled it would be unfair if IVF children or their parents could recover for emotional distress if their naturally conceived counterparts cannot. Finally, however, the court stated that the parents might still be able to recover punitive damages, having alleged grossly negligent or reckless conduct. The court found that the defendants’ alleged conduct, failing to disclose genetic test results or to test the intended father, might
certainly constitute at least gross negligence.

The court noted “it is hard to ignore defendants’ alleged role in Theresa’s illness. Indeed, it is difficult to conceive that parents, concerned about whether the egg donor had freckles and with the size of her eyes and ears, would not have expected full disclosure of information regarding whether she carried cystic fibrosis. Thus, the Parettas will be permitted to vigorously pursue recovery.”

In 2002, a similar case was decided by the California Appeals Court involving a child born with a serious genetic disorder (polycystic kidney disease) after her parents unknowingly received affected donor sperm from a sperm bank (Johnson v. Superior Ct., see LS Winter 2002). The California court similarly rejected claims for general damages and lost earnings as based on a wrongful life theory and also applied state statutory protections designed for health care providers.

Both courts refused to adopt the distinction and theory urged by the plaintiffs — that the defendants had caused the child’s genetic abnormalities by approving the donor. Rather, the courts noted it was the donor’s genes that had literally caused the abnormalities.
Paretta v. Medical Offices of Human Reproduction, et. al., 195 Misc. 2d 568, 760 N.Y.s.2d 639 (2003).

California Supreme Court Affirms Second Parent Adoptions…

California, in a new Supreme Court decision, has judicially affirmed its practice of allowing second-parent adoption proceedings and reversed a lower appellate court that had called into question the validity of such proceedings. The lower court had thrown the legitimacy of same-sex or other unmarried couples’ adoptions into question by interpreting California’s adoption laws to require a birth parent relinquishment prior to any adoption. That practice has not been routinely followed in the estimated 10,000 to 20,000 second-parent adoptions in California where the first legal parent typically consents to their partner’s adoption without relinquishing their own parental rights. In a separate opinion, concurring in part and dissenting in part, one judge suggested that by waiving the statutory requirement of relinquishment, the majority of the court had opened the door to unlimited multiple party adoptions, a charge the majority denied.

The court also noted that, “[u]nmarried couples who have brought a child into the world with the expectation that they will raise it together, and who have jointly petitioned for adoption, should be on notice that if they separate the same rules concerning custody and visitation as apply to all other parents will apply to them.” This decision suggests the significance of clear clinical consent forms, especially for non-traditional couples, that accurately reflect the parenting intentions of the patients.
Sharon S. v. Superior Ct. of San Diego County & Annette F., Real Party in Interest, Super.Ct.No. A46053 (8/4/03); Lambda Legal News Release, 8/5/03.

Dueling Insurance Companies Dispute Coverage for Gestational Carrier and Child…

A federal court stepped in to resolve the question of which of two insurance companies was required to cover the pregnancy, complications, and two months of neonatal hospitalization costs of a child, referred to as “Brenda Roe,” born through a gestational carrier arrangement between two sisters. It appears there was no dispute between any of the adults, with all seeking the maximum coverage for their various expenses. Mid-South, the insurer for the carrier’s husband and his dependents (defined as “spouse and children”), balked at covering both the maternity complications costs and the newborn costs for the premature infant. Celtic Insurance, which covered the genetic, intended parents, refused to cover the child. In what appears to be the first reported case dealing with this issue, the court split the coverage obligations in what was a predictable outcome for those familiar with these issues. Less predictable were the lengths the parties were willing to go to try to get insurance by characterizing the child as that of the carrier.

The court found that the carrier’s pregnancy and medical complications were covered by her husband’s family policy while the child, whom the surrogacy agreement acknowledged would be the child of the genetic, intended parents, should have been covered by their policy had they registered her, as that policy required for coverage to extend to a dependent child beyond the 31st day of life. The court held that the genetic parents’ ultimate adoption of the child did not negate her legal status as their daughter prior to the adoption.

The court recognized the Mid-South policy covered the gestational carrier’s husband and his dependents, with “child” defined to include “natural child, step child, or adopted child.” The court found “no reasonable person” could interpret the term “natural child” to mean Brenda Roe, instead finding it obviously meant “biological child” and, since the carrier’s husband was the policy holder, no reasonable language interpretation could make her his natural child. The court denied the term ‘natural child’ was ambiguous because of the unusual nature of a surrogate pregnancy. Nor did the fact that the genetic parents sought an order of adoption for their child dissuade the court from recognizing the facts of the child’s parentage. Any other construction would have flown in the face of the parties’ expressed understanding of the child’s parentage and the language of the policies.

Mid-South was less successful in arguing that it did not have to cover the carrier’s pregnancy complications. The court rejected both arguments the company raised, finding the expenses were not for the benefit of a third-party and were at least in part to protect the carrier’s own health; and finding the surrogacy agreement’s statement that the intended, genetic parents would pay for any “maternity and birth costs” if “health insurance is not available…,” was clearly contingent on lack of coverage under the policy, not in lieu of it.

However, the court refused to find Mid-South acted in bad faith, since given the unusual circumstances of a surrogate pregnancy, it was reasonable to seek a declaration of rights.

Finally, the court found the child was not covered under her genetic, intended parents’ policy after 30 days post-birth, since they failed to inform the company of her birth, as the policy required for all dependent children.

The decision is likely in line with both the expectations and experience of those who have been involved in gestational carrier/surrogacy arrangements. Indeed, the parties’ arguments to the court that the child should be seen as the child of the gestational carrier and her husband for purposes of insurance coverage would seem not only to be ineffective but would also potentially make a family—perhaps one not involving sisters—vulnerable to claims of a legal parent-child relationship between the carrier and the child.
Mid-South Ins. Co. v. John Doe, Frank Roe, Mary Roe, and Celtic Ins. Co., 274 F.Supp.2d 757 (2003).

UK Victory for Diane Blood and Posthumously Conceived Children...

After protracted challenges by widow Diane Blood and other women who also became mothers using their deceased husbands’ preserved sperm, recent changes in British law now allow posthumous fathers to appear on the child’s birth certificate. The law now permits the name of the man who died before his child was conceived to appear on the child’s birth certificate; the space for the child’s father’s name had previously been left blank (See LS Summer 2003 ). The new law, the Deceased Fathers Bill, applies not only to deceased biological fathers, but also to deceased social fathers, i.e., to children born through artificial insemination to women, married or unmarried, whose former partner did not himself provide the sperm. In that respect, the law mirrors the same position given social fathers in the Human Fertilisation Act.

The government was reportedly forced to pass the new law after an English court suggested that the former law was incompatible with Article 8 of the European Convention on Human Rights. In contrast, in the United States, individual women have brought court challenges in only a handful of states (including Massachusetts, New Jersey, and Louisiana)—with mixed results—to attempt to have posthumously conceived children recognized to be the legal children of deceased biological fathers.
Tizzard, J, Progress Educational Trust; Bionews 226:22/9/03.

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