A column highlighting recent court decisions affecting the assisted reproductive technologies and the families they create, written by Susan L. Crockin, J.D.
“Legally Speaking: A Column Highlighting Recent Court Decisions Affecting the ARTs and the Families They Create” returns to ASRM amidst extraordinary legal developments impacting the assisted reproductive technologies. The column will appear online monthly in ASRM News, with links to court decisions for those who wish to delve directly into the courts' opinions. There will be guest authors to add expertise and unique perspectives related to significant legal topics. “Legally Speaking®” will continue its commitment to not only report on new and noteworthy court cases but also analyze their potential impact and significance on the practice of ART. --Susan Crockin, JD
December 16, 2015
A Pennsylvania intermediate appellate court has affirmed a lower court’s
ruling that Sherri Shepherd is the legal mother of “Baby S,” a child
born as a result of a gestational carrier arrangement entered into in
Pennsylvania, using an anonymous donor and Shepherd’s then- husband’s
sperm. The court expressly ruled that a gestational carrier contract is
enforceable under Pennsylvania law, and upheld Shepherd’s child support
payments as the legal mother. In its November decision, the appellate
court cited and quoted extensively from the multiple legal agreements
the parties entered into with one another, as well as those the intended
parents entered into with both the gestational carrier and egg donor
recruiting programs, all of which reflected Shepherd’s explicit desire
and intent to be a mother through the arrangement.
December 16, 2015
A long-awaited trial court decision over a frozen embryo dispute has
come down squarely on the side of the ex-husband and the medical program
whose documents the former couple signed before undergoing IVF. (Findley v. Lee,
11/18/15). The case involved a divorcing couple and their differing
views on disposition of their cryopreserved embryos, created after the
woman’s diagnosis of breast cancer early into their three-year marriage.
November 11, 2015
There has never been a time when Canada’s fertility laws have been more
relevant to the international community. Various international surrogacy
destinations such as India and Nepal have very recently closed their
borders to foreigners looking for surrogacy services, creating demand
for these services in other jurisdictions. Recently, many seeking to
engage in surrogacy are considering Canada because of its high quality
healthcare services, proximity to the United States, and LGBT-friendly
laws and attitudes. However, only altruistic surrogacy and egg donation
are permissible in Canada; and therefore some Canadians seek various ART
services in the United States.
September 18, 2015
This month, as IVF pre-implantation embryos once again dominate legal
news with an international court upholding Italy’s ban prohibiting a
widow’s embryo donation for research (Parillo v. Italy, ECHR
8/27/15), and appeals pending in the U.S. over disputed control over two
former couples’ pre-implantation IVF embryos U.S. cases (Findley v. Lee (CA) and Szanfranski v. Dunston (IL), Legally Speaking
pauses to pay tribute to the visionary Dr. Howard W. Jones, Jr.
(1910-2015). Dr. Jones’ impact reached far beyond the medical aspects
of assisted reproduction, and he leaves a perhaps less recognized, but
similarly singular legacy on three related fields: ART law, policy and
ethics. This month’s column highlights a few of those notable
accomplishments and their impact.
August 14, 2015
Surrogacy involving Australian intended parents has been big
international news of late. The infamous “Baby Gammy” case, where an
Australian couple left for home without their male twin born with Downs
syndrome to a Thai surrogate, has highlighted both the demand of, and
the potential risks of, working with Australian couples overseas.
Australian courts and government officials, on both federal and state
levels, have been involved in addressing recent controversies. This
guest column by Australian lawyer Stephen Page presents an overview of
the current state of ART law and practice involving Australians seeking
to build families overseas.
July 22, 2015
On June 26th, 2015 the Supreme Court of the United States(SCOTUS) issued its long-awaited decision on same-sex marriage, ruling that the right to marry is a fundamental Constitutional right recognized under the 14th Amendment that cannot be denied to same-sex couples. As a result of the Court’s 5-4 decision, every state must now issue marriage licenses and recognize marriages between same-sex couples. The decision reflects a remarkably swift change of law and policy that began only in 2003, with the first such legal recognition handed down by the Massachusetts Supreme Judicial Court in its ground-breaking 2003 Goodrich decision. Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003).
July 21, 2015
In July, and after years of refusing legal recognition to children born abroad from surrogacy, that country’s highest court has reversed course. The French Court of Cassation’s July 3rd ruling means that children born to surrogates abroad will now be legally recognized as children of their biological French parents, entitled to French birth certificates, and thus able to both confirm the parent-child relationship for all purposes and establish French citizenship. Surrogacy within France remains illegal and the decision does not apply to an intended parent who does not have a biological connection.
July 21, 2015
There has been a partial settlement in the complex set of court cases
and a maternity decision in April 2015, involving a child born to actor
Sherri Shepherd and her estranged husband Lamar Sally through
gestational surrogacy. The child was conceived and born during the
parties’ marriage, using embryos created from Sally’s sperm and an
anonymous egg donor, and carried by a single mother as a gestational
June 18, 2015
The British Columbia Court of Appeal upheld a lower court ruling that determined human sperm to be property for purposes of determining storage responsibilities under Canadian provincial law. Lam v. University of British Columbia, 2015 BCCA 2. The plaintiff represents more than 400 patients who froze their sperm after being diagnosed with cancer and prior to receiving chemotherapy treatment that would severely compromise or destroy their fertility. In 2002, power to the cryopreservation units at the University of British Columbia (where the specimens were stored) was interrupted and the specimens were destroyed. The plaintiffs sued the university for negligence and breach of contract.
June 18, 2015
An Illinois court recently ruled that it was permissible to use pseudonyms to protect the identity of 40 plaintiffs in an ongoing malpractice case against an Illinois fertility center. Doe, et al. v. Northwestern Memorial Hospital, 2014 IL App (1st) 140212 In 2013, Northwestern University reported a malfunction of its cryogenic tanks that stored sperm and testicular tissue specimens, which were cryopreserved by patients intending to use them for future fertility procedures. Many of the specimens were stored by patients who subsequently underwent treatment for diseases that rendered them unable to have biological children without the cryopreserved specimens. The malfunction resulted in the damage or complete loss of the specimens. Forty of the affected individuals filed this claim against the hospital, its faculty foundation, the cryotank manufacturer and the vendor companies involved in the maintenance of the croytanks.