ASRM Legally Speaking

In a novel court case, a New York court has ruled that twins born through IVF-ET using donor eggs and born to a gestational carrier are entitled to inherit from the estate of their maternal grandfather and that an exclusion for adopted children did not apply. The case involved a trust created in 1959 for the benefit of the settlor’s eight children or their children’s descendants with the stated exception that "adoptions shall not be recognized".

In 2002, one of the adult children had twins born in California and, under that state’s laws, obtained a parentage judgment. The issue before the New York court was whether or not those children were entitled to inherit. New York law does not recognize surrogacy contracts. The case arose when the trustees asked the court to determine whether or not the exclusion applied.

The court found that the children were not adopted and that the adoption language in the trust should not be extended to apply to them. The court noted that no adoption occurred, that under California law a judgment for parental relationship is a totally distinctive proceeding and governed by a different part of California statutory law. Given that the trust was created in 1959 before these technologies were available and used, the court also found that there could have been no intent to exclude ART-conceived children.

Interestingly, the court was not affected by the use of donor egg and relied on the California court’s legal determination of parentage based on intent and found that, “no reasoning justifies a denial of full faith and credit to the judgment…[I]t is clear that in California the twins were not adopted…”. Matter of John Doe, 3012-1980 (NY Surr.Ct. 1/05).

Massachusetts Legislature Passes Stem Cell Law, with IVF Consent Provisions …

Massachusetts joins California and New Jersey in enacting a law designed to promote stem cell research within a state. The bill is now headed to the governor’s desk, where it is easily expected to override an anticipated veto. The law does not fund the research but approves it with certain caveats, including disallowing compensation to egg donors and prohibiting the creation of research embryos through fertilization. As currently drafted, the law will permit creation of embryos through somatic cell nuclear transfer and other non-fertilization methods. Excess IVF embryos are also permitted to be used, again with no compensation to the donors. Of particular interest to the ART community may be provisions that made their way into the final version of the compromise law after it came out of both houses. Notwithstanding a provision that "[n]othing in this chapter shall be deemed to prohibit or regulate the use of in vitro fertilization for reproductive purposes", an added section details specific requirements for taking IVF consents whenever eggs are retrieved from any patient. Those requirements include a standardized pamphlet which outlines the procedures, medical risks, drug-related known and unknown risks, and disposition options for any resulting embryos. In addition, a required "notes" section must be completed referencing any issues specific to a particular patient and a copy provided to that patient. A different section added late in the process authorizes an investigation into the possibility of the state taking custody of abandoned embryos and deciding whether or not they can be used for "biomedical research or medical care or treatment". MA Senate Bill No. 2039

Utah Legislation Approves Surrogacy Contracts, Streamlines Birth Certificates…

Governor Jon Huntsman has signed into law a surrogacy law that permits court-approved contracts and sets out procedures for obtaining birth certificates for children born to gestational carriers. The law is limited in its application to married infertile couples and carriers who are not using their own eggs. Prior to this, Utah law prohibited any form of surrogacy and any traditional surrogate or gestational carrier, regardless of whether she was a genetic parent, was required to go on the child’s initial birth certificate. Despite some opposition in the House of Representatives, the law passed and goes into effect July 1, 2005. Utah Uniform Parentage Act, 2005 General Session, Utah Code Annotated 78-45g-801.

UPDATE: Donor’s Maternity Rights Debated in Triplet Gestational Surrogacy Controversy….

The formerly anonymous Texas egg donor involved in a triplet surrogacy gone awry (Legally Speaking Summer 2004 and Spring ‘05), has now asked a Pennsylvania trial court to reject a petition to terminate her maternity rights that was filed by the gestational carrier. The carrier, Danielle Bimber, has physical custody of the children under a Pennsylvania court’s order, that is currently on appeal. The case arose after the genetic father and his fiancée reportedly failed to arrive at the hospital shortly after the children’s births and the gestational carrier successfully sought custody of the children. She then sought to terminate the donor’s rights. The donor, 23-year-old Jennifer Rice of Texas, is attempting to maintain her parentage status both by filing suit in Ohio and defending the current action brought by Bimber. The donor has acknowledged that her legal fees are being paid by the children’s father, that she does not want custody, and that she is willing to relinquish her maternal rights if the father’s fiancée (and originally intended mother) is permitted to adopt the children. The Pennsylvania court also took testimony from experts who testified that inserting a
new “parent figure” into the 16-month-old boys’ lives would likely be detrimental to them. The court ordered the parties to submit legal briefs on the case and a ruling is
expected shortly.

In the wake of this litigation, Pennsylvania has proposed a law that would require court approval of any surrogacy contracts, as well as counseling for all parties.

A separate lawsuit was filed in late May by the intended parent against the Indiana attorney and agency who brokered the arrangement. The couple’s suit, for negligence and breach of contract, claims Attorney Steve Litz and Surrogate Mothers Inc. of Indiana failed to file documents to give Flynn, as the genetic father, sole legal custody or to inform them their contract could not be enforced in Pennsylvania which has no surrogacy laws. Litz has reportedly responded that he always warns clients some states do not recognize surrogacy agreements and has called the lawsuit “meritless”.
Flynn v. Bimber, Post-Gazette (4/6/05); appeal: Dkt.#221 WDA 2005 (Sup.Ct. PA); AP (C.Wilson. 5/19/05).

UPDATE: Jury Verdict in OPTIONS National Fertility Registry Litigation …

A jury trial between a donor egg recruitment agency and the medical professionals arising out of an egg sharing arrangement has concluded. (Legally Speaking Fall 2002). The cases arose after a donor recruited through that agency entered into a legal agreement with one Texas couple but later found that her eggs had been shared with a second couple who were patients of the same medical practice, at the suggestion of the couples’ treating physician. The second couple was initially denied use of the eggs, but was later permitted to use them as part of a legal settlement. The agency, physician, and medical program were ultimately the only remaining parties in a trial which concluded in January 2005 with the jury finding the defendants liable for failing to comply with their agreement with the agency and for interference with the agency’s business, but not liable on a charge of intentionally interfering with the agency’s contract with its own clients.

Options National Fertility Registry v. Dr. Michael Allon, Michael Allon, MD, PA, Infertility Center of Houston, LLKP, Center for Women’s Medicine, (Jud.Dis.190th, Harris Cty, TX, 1/10/05).

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