ASRM Legally Speaking

Author's Note: This issue's column reflects a sense of litigation Déjà vu and renewed vulnerability for providers and patients. Notably, issues which seemed to be somewhat settled law, including frozen embryo disputes, sperm donor status for same-sex couples, and birth orders in uncontested court actions, are all back in court with novel arguments, judicial perspectives, and uncertain outcomes and implications for ART family building.

Maryland Court Upholds Birth Order, Questions Baby Buying Restrictions
More questions were raised than answered by an intermediate appellate court's ruling that a single man may obtain a birth order without a mother cited for twins carried for him by a gestational carrier and created with the help of an egg donor. There was no disagreement by the parties and the court found that state law, and specifically its equal rights act and paternity statutes, supported equal treatment for women denying maternity and thus the gestational carrier's right not to be legally treated or listed as the twins' mother. That conclusion falls into line with a number of other states that are increasingly issuing pre or post-birth orders for children born to gestational carriers.

The court went further, however, suggesting that surrogacy arrangements may be vulnerable under that state's laws: "It requires noting that surrogacy contracts, that is, payment of money for a child, are illegal in Maryland" and noted that the courts have enforced two statutes that prohibit payments not only for adoption, but for custody, as well as in exchange for a waiver of child support. Strongly worded dissenting opinions were also filed, referring to ART births as creating new ways of "manufacturing children." Subsequent clarification of Maryland law as to both traditional and gestational surrogacy arrangements may be anticipated. In re: Roberto d. B, 2007 Md. LEXIS 269 (5/16/07)

PA Sperm Donor Ordered to Pay Child Support
In a somewhat startling ruling, an intermediate appellate court in Pennsylvania has in essence approved a three-way parenting arrangement by ordering a former lesbian couple's sperm donor to pay child support. The man, who was a close friend of the women and had voluntarily contributed financial support for the two children, ages 7 and 8, and participated in their lives, was found to be a biological father with obligations to the children which their rearing mothers could not waive. The issue arose when the women separated and a custody case ensued, with one woman seeking child support from the other, as well as the sperm donor. The court acknowledged there was no agreement for support but that there was also no need for one and that the donor had showed "constant and attentive solicitude," that he had become "voluntarily, indeed, enthusiastically, an integral part of [the children's] lives" (including being called "Papa"), and as such, should be a party with an allocation of child support assigned. Unless clarified or reversed by a higher appellate court, it is unclear how or whether a same-sex couple can create a clear donor recipient arrangement with a known donor who plays a role in the resulting child's life.

The donor has also since died, leaving questions such as to whether the children will qualify for social security survivor benefits. Jacob v. Shultz-Jacob and Frampton, 2007 PA Super 118 (York Cty, 4/30/07)

RECAP
UC-Irvine Multi-Million Dollar Settlements Disclosed
More than a decade after the initial scandal, UC-Irvine has released settlement figures paid out to patients whose eggs were taken without their knowledge or consent through the IVF practice run there by Drs. Ricardo Asch and Jose Balmaceda. A total of $23.2 million was paid to a variety of patients whose eggs were either given to other patients-some of which resulted in children, for research or which were never found. The settlement total included settlements ranging from about $2,000 to $700,000, the highest resulting from cases where eggs resulted in the birth of a child to an unrelated woman. Despite initial custody claims, none of those approximately 12 cases ultimately ended up in a custody lawsuit, and those children were all left to be raised by the women who birthed them.

In all, 139 patient lawsuits were filed, 16 of which were ultimately dismissed. Whistleblower claims were separately settled by UCI, with those settlements also in the millions of dollars, and criminal prosecutions were pursued against the individual physicians who subsequently left the U.S. Orange County Register, 6/26/07

New Frozen Embryo Appeal May Raise Constitutional Issues
A wife's pending appeal of a decision that allowed her husband to stop her from using their frozen embryos (Roman v. Roman, LS Spring '06), is raising potentially significant constitutional issues and both sides are threatening to go to the U.S. Supreme Court if they lose before the Texas Supreme Court. On the eve of returning to their IVF clinic for a fresh embryo transfer, Randy Roman informed his wife that he was dissatisfied with their marriage, and unwilling to go forward with the scheduled transfer. The couple therefore told the clinic the next morning to freeze the embryos, and are now litigating whether or not the wife may force the husband to allow her access to them. Her somewhat novel argument is that the program consent forms they signed three weeks before the IVF cycle, and which recognized the right to a changed mind, and destruction in the event of a divorce, was only intended to apply to leftover embryos, not all embryos. Her attorneys are also arguing that a woman should have the right to control embryos just as she would a pregnancy. Many commentators have suggested the case raises right-to-life issues that may take on more significance with the newly composed, more conservative Supreme Court that in the 2006-2007 term cut back on the protections of Roe v. Wade with its partial birth abortion ruling. Roman v. Roman, 2006 Tex.App. LEXIS 5804 (further appeal pending)

VA-VT Lesbian Couple's Civil Union Dissolved
After a years long, two-state custody battle [LS Winter '06-7], a Vermont judge has now dissolved the civil union between two women whose custody dispute over their five-year-old daughter sparked a national debate over state's rights and same-sex couples. The court also awarded custody to the biological mother with "regular parent-child contact" in the form of alternate weekends for her former partner. When the former couple split, a Vermont court had ruled that both were legal parents of the child born to Lisa Miller who had moved to Virginia, and that Janet Jenkins should have visitation rights. That ruling was affirmed by Vermont's Supreme Court but Miller refused to allow Jenkins access to their child, went to court in Virginia, and those courts initially refused to accept the Vermont courts' rulings, a violation of “full faith and custody” rules that apply to most interstate cases. Ultimately, the Virginia courts accepted the Vermont court rulings, although Miller still has an appeal filed with the Virginia Supreme Court. Because the case involved disputed legal recognition of same-sex couples parental and custody rights, it garnered national attention. The U.S. Supreme Court refused to hear an appeal of the Vermont court decision in April of this year, but Miller is reportedly considering an appeal of the new visitation order so the most recent decision may not be the end of the legal or emotional sparring over the child's status. Miller-Jenkins v. Miller-Jenkins, (2006 VT 78; Nos. 2004-443/2005-030); NYTimes (6/19/07); Rutland Herald (6/19/07)

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