ASRM Legally Speaking

Non-Residents Entitled to Massachusetts Gestational Carrier Pre-Birth Order…

The Massachusetts Supreme Judicial Court determined that Massachusetts both had jurisdiction and was a proper choice of law to determine parentage even though all the parties were out-of-state residents. The intended, genetic parents lived in Connecticut; the gestational carrier and her husband lived in New York. The only Massachusetts connections were the prenatal care and birth. Noting the equity statute’s absence of a residency requirement, the hospital’s status as a Massachusetts corporation, and the carrier and her husband’s agreement to submit to the court’s jurisdiction, the Court determined Massachusetts had proper personal and subject matter jurisdiction to grant the relief requested, a pre-birth parentage order.

The Court also upheld the contract’s choice of Massachusetts law provision, finding Massachusetts had a “substantial relationship” to the transaction and that result would not be contrary to Massachusetts public policy. In reaching that conclusion the court considered whether another state had a stronger connection to the transaction, and thus considered the laws of both New York and Connecticut. Both states address gestational carrier and traditional surrogacy arrangements, with contradictory policies (pro-and anti-surrogacy) which made the Massachusetts’ court’s decision easier to reach. The Court also noted it had not been asked to, and would not, express any opinion on
the validity, construction, or enforceability of any other provision of the agreement. Thus, the opinion clarifies that nonresidents may seek parentage orders in Massachusetts where the child’s birth is planned and occurs there and their contract provides for such.
Hodas v. Morin, 442 Mass. 544, 814 N.E.2d 320 (2004).

One Trial Court Deems Gestational Carrier Mother of Triplets; Second Court Allows Donor Maternal Status…

A Pennsylvania trial court has ruled that a gestational carrier is the legal mother of triplets conceived by an unmarried Ohio couple using the male partner’s sperm and donated eggs. The parties’ relationship deteriorated during the pregnancy and, when the couple did not arrive at the hospital shortly after the births when expected, the gestational carrier sought and obtained court permission to take the triplets home. The court found the gestational surrogacy contract void due to its failure to identify a legal mother and because the contract allowed the parties to bargain away the rights of the children. The court held that the carrier had standing to pursue custody as the legal mother. J.F. v. D.B., 66 Pa. D. & C. 4th 1 (2004).

Shortly after the Pennsylvania decision, the egg donor also sought maternal status in an Ohio court. An Akron judge determined that the egg donor does have a parent-child relationship with the triplets, but declined to decide who has parental rights, leaving that to the Pennsylvania court to decide. A decision from the Pennsylvania court is expected soon. Pittsburgh Post-Gazette (11/10/04).

Washington Appellate Court Allows Former Partner to Proceed With Parentage Claim

In a decision currently being appealed, the Washington Court of Appeals ruled that a woman may proceed with an action for recognition as a ‘de facto’ or psychological parent, and, in the alternative, for third-parent visitation of a child she raised with her former partner for six years. The child was conceived through known donor insemination. After the couple separated, the biological mother (Britain) cut off her former partner’s (Carvin) contact with the child. Carvin filed a petition for parental rights and/or visitation. Thereafter, Britain married the sperm donor, signed an acknowledgment of parentage with him, and had his name added to the child’s birth certificate.

The Court of Appeals first found that Carvin could not pursue her claim under the 2002 Uniform Parentage Act, because she did not fit into any of the specific, unambiguous categories of persons listed in the Act as having “standing” to adjudicate parentage. However, the court ruled she could proceed under Washington common law with her action to establish that she is a de facto or psychological parent, or alternatively for visits with the child under Washington’s third-party visitation statute. An appeal is pending with the Supreme Court of Washington.
Carvin v. Britain (In re Parentage of L.B.), 121 Wn.App. 460, 89 P.3d 271 (2004); pet. for rev.granted by, 2004 Wash. LEXIS 663 (10/06/04)

Couples Settle Embryo Mix-Up Lawsuits Against New York Fertility Clinic

The tort lawsuits arising out of the 1998 embryo mix-up that resulted in one patient carrying both her own IVF child and that of another couple, has now been settled for an undisclosed sum. A New York doctor mistakenly implanted Donna Fasano with one embryo created by her and her husband, and one embryo created by Deborah Perry-Rogers and Robert Rogers, another couple at the same clinic. Ms. Fasano gave birth to twins. Following the two boys’ births, and after a lengthy dispute, the Rogers were deemed parents with full custody of their genetic child. Both couples brought lawsuits against the medical providers which have both recently settled for undisclosed sums.
Kaisernetwork.org, Daily Reproductive Health Report, (9/15/04); Newsday.com (9/13/04).

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