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Legally Speaking

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

Surrogacy Litigation Continues to Make Headlines

Legally Speaking April 18, 2016

A jury returned a large verdict in a medical malpractice lawsuit filed against a Maryland IVF physician who did not order medical records of a Pennsylvania gestational surrogate carrier. The suit was brought by the parents of a child who died 21 days after being delivered at 25 weeks due to their gestational carrier’s preeclampsia. She had failed to disclose she had had preeclampsia in her most recent prior pregnancy.  The parents, Andrew and Marni Hotchkiss, from Bethesda Maryland, sued, claiming the doctor was screening prospective gestational carriers on their behalf, that they would have rejected this carrier based on her actual medical history, and that the failure to order and review the gestational carrier’s medical records was malpractice. The gestational carrier, Christina Jensen, had reported having had four previous healthy pregnancies, but failed to disclose she had delivered six children, the most recent of which was delivered prematurely as a resulted of preeclampsia.  The jury’s $44.1 million damage award will be reduced to under $1 million under Maryland law which caps non-economic damages.

Missouri Embryo Dispute on Appeal: guest author Raegen N. Rasnic, J.D.

Legally Speaking March 21, 2016

A trial court in St. Louis, Missouri has sparked controversy, and an appeal, after resolving a dispute between divorcing spouses by awarding them joint control over their cryopreserved embryos. (McQueen-Gadberry v. Gadberry, 4/15).

Surrogacy Cases Continue in the News and Courts

Legally Speaking February 15, 2016

According to news reports, Melissa Cook, a 48-year-old California gestational surrogate pregnant with triplets has filed a lawsuit challenging the constitutionality of California’s surrogacy laws. Cook, who was matched through a California surrogacy recruiting program, agreed to carry male triplets for a single intended father created with his sperm and eggs from a 20-year-old donor. Cook is due in March. She and the intended father, known as C.M. in the media, have been in the news with dueling accusations by their attorneys after she refused C.M.’s request to selectively reduce to twins.  Cook claims the request was based on the inability of the intended father (reportedly a single, 50-year-old, deaf postal worker who lives with his parents in Georgia) to financially support the children. C.M.’s attorney claims the request was made for medical reasons. 

Shepherd-Sally Surrogacy Agreement Upheld by Pennsylvania Appellate Court

Legally Speaking 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.

California Trial Court Upholds Couple's Agreement with UCSF and Orders Pre-embryos Discarded

Legally Speaking 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.

A Legal Primer on Fertility Law in Canada

Legally Speaking 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.  

Legally Speaking Pays Tribute to Dr. Howard W. Jones, Jr.'s Singular Contributions to ART Law, Ethics and Policy

Legally Speaking 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.

Surrogacy in Australia

Legally Speaking 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.

SCOTUS: Same_Sex Marriage Now Legal in All 50 States

Legally Speaking 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).

French Highest Court Recognizes Children Born Abroad Through Surrogacy

Legally Speaking 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.


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