ASRM Legally Speaking

Final Frozen Embryo Appeal Lost in Europe
Natalie Evans, the British cancer survivor who had fought to use her six frozen embryos over the objection of her former partner, has lost her final appeal. The Grand Chamber of the European Court of Human Rights affirmed the British courts (LS/Spring 2006) that had ruled that no violations of law had occurred. Evans tried, but failed, to demonstrate that there was both discrimination and human rights violations under the European Convention of Human Rights. The Grand Chamber noted that the rules were clear, told to Evans, and fairly balanced she and her former partner's rights. No further avenues of appeal are available. (Various;4/11/07)

NY Court Allows IVF-Sperm Mix-Up Lawsuit to Proceed Against Embryologist and Program
An apparent sperm mix-up involving a 2004 IVF procedure is the subject of an ongoing lawsuit filed by the girl's rearing parents. The couple initially became concerned after the child's birth when she appeared to have darker skin than either the wife who is Hispanic or the husband who is Caucasian. After three DNA tests confirmed that Thomas Andrews is not the girl's genetic father, the Andrews sued the clinic and professionals involved. The sperm is purportedly from an African-American sperm donor. The couple has also expressed concerns over whether the husband's sperm may have been used to create another child. The trial court recently allowed the case to proceed against the New York Medical Services for Reproductive Medicine, the physician who owns the practice only in that capacity, and the program's embryologist who purportedly fertilized the wife's eggs. The court dismissed claims against the physician who performed the embryo transfer and rejected the couple's claim of mental distress, ruling that the birth of a healthy but unwanted child is not a recognizable injury under New York law, but allowed other aspects of the case, including the malpractice claims, to continue. Andrews v. Martin, et.al. (Sup.Ct.N.Y. No. 109263/2005); The Guardian (3/27/07).

Botched Abortion Results in Healthy Child and Lawsuit
A 45-year-old woman from Massachusetts, whose abortion procedure failed to end her pregnancy, has sued Planned Parenthood and two doctors for the costs of rearing the healthy daughter she later gave birth to. Jennifer Raper's lawsuit is based on a Planned Parenthood physician's allegedly failed abortion procedure and another physician's subsequent failure to detect the continued pregnancy at 20 weeks. Raper alleges she had decided on an abortion for financial reasons, and only discovered she was still pregnant late in the pregnancy and then delivered a healthy child. While many states recognize the tort of "wrongful birth" following a failed abortion procedure or other medical steps that lead to an unanticipated birth, damages are frequently limited to the direct costs of the failed procedure and any extraordinary costs of rearing a child with medical problems. Only a few states, not including Massachusetts to date, have allowed damages for the costs of rearing a healthy child. A trial court in that state did order an IVF program to pay child support costs to a man whose ex-wife used their frozen embryos without his consent (LS Spring 2004/Gladu) to have a child, but no appellate court in that state has endorsed the principle. Raper v. Planned Parenthood (Boston Globe 3/7/07)

British Gestational Carrier Fights to Keep Twins
In a legal first for England, a 42-year-old single mother is fighting to keep legal custody of twins she bore for a married couple from their frozen biological embryos after changing her mind during the first trimester. The twins are currently living with her and her two teen-aged sons, with court-ordered weekend custody for the biological parents. Under British law, she is considered the legal mother and must be found unfit to remove custody from her. Because the biological father is deemed the legal father, he and his wife have been granted court-ordered weekend custody while the case moves forward. The parties found one another through COTS, a British surrogacy agency, and used the couple's previously frozen embryos to establish a pregnancy. The gestational carrier reportedly passed both medical and mental health screenings.

According to a published interview with the woman (the couple declined to be interviewed), she became upset when the warm, personal relationship she expected with the couple---including contact with the child---became more business-like, including being told the couple, who are Asian, did not want their family to know the children had been carried by a white woman and did not want a continuing relationship with her. She was also reportedly angered when, after expressing her reservations about carrying a twin pregnancy, she was immediately scheduled for a termination without further input or discussion. She has returned the money she had received, and expressed her willingness to continue the present arrangement with the twins essentially having three parents. A hearing in January decided the temporary custody arrangements while the case is pending. MAIL ON SUNDAY (London, 12/17/06; 1/25/07)

RECAP: Massachusetts Governor Moves to Loosen Stem Cell Restrictions
The newly elected Democratic governor of Massachusetts has wasted little time in reversing anti-stem cell regulations put into place by his Republican predecessor and the state's appointed Public Health Council (LS/Fall 2006). The previous regulations interpreted the 2005 law as prohibiting scientists from using embryos created for research or stem cell lines derived from them, and had been widely criticized for both limiting stem cell research and thwarting the intent of the legislation. Governor Deval Patrick and his administration have made it known they want to support stem cell research and the scientific and economic advances it may bring to the state. The governor's actions, including the announced intent to reconstitute the state's Public Health Council, have been favorably received by the research and scientific community. Boston Globe (3/30/07.)

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