State Legislatures Busy

Legally Speaking is a guest authored column. The specific content of each column is written by the author as he/she understands the facts--scientific, medical, legal or otherwise--as they relate to the information presented, and in no way reflects ASRM's understanding, opinion or presentation of these facts.

New York Surrogacy Legislation Advances, Wins Governor’s Support

New York’s Governor Cuomo has endorsed proposed legislation in that state that would recognize and allow compensated gestational surrogacy. New York is currently one of very few states that explicitly bans the practice, following the infamous 1987 Baby M case in New Jersey, involving a traditional/genetic surrogate, Mary Beth Whitehead who changed her mind, but was not awarded custody of the child. Efforts (and vocal opposition) have been underway for several years to change the law. Recently, other jurisdictions have voted to allow compensated gestational surrogacy, including the District of Columbia and Washington state. The current bill, known as the Child-Parent Security Act, now has the support of the governor, and may be voted on as early as this spring. (The author has twice testified at the New York State legislature in favor of the legislation).

New Jersey Bill to Regulate and License Embryo Storage Facilities Advances

In the wake of recent, widely publicized tank failures in other states, three New Jersey Democratic state legislators have introduced a bill (A-4605) that would add state licensing and regulatory requirements to any embryo storage facility operating in New Jersey (including any licensed health care provider who stores embryos, as well as sperm and eggs). The bill was introduced in October, has passed an Assembly Panel, and is currently waiting full Assembly consideration. The proposed law also would make it a third-degree crime to operate such a storage facility without a license or to misrepresent having that license.

The law would assign establishing guidelines to the state’s Department of Health and states those standards should be consistent with standards established by CAP, the FDA (through its guidance on Good Tissue Practices), and the International Organization of Standardization, as well as state local fire codes. State regulators are authorized to conduct inspections of any facilities, and to examine any data and documents during business hours without advance notice.

Indiana Introduces “Fertility Fraud” Bill to Criminalize Physician Unconsented Sperm Donation

After more than 40 Indiana donor-conceived adults learned that their parent’s physician, Dr. Donald Cline, was their biological father following his undisclosed artificial inseminations practices, a bill has been introduced in that state to criminalize such behavior. Cline, age 80 and retired, received a one-year suspended sentence and a $500 fine after being found guilty of obstruction of justice for lying to investigators, and permanently lost his medical license. The inseminations occurred between 1974 and 1987.

The bill would create a Level 6 felony in that state for physicians who use their own sperm or ovum on their patients without consent and provides for a five-year statute of limitations after discovery for the criminal offense, but also allows civil cases to be brought with damages capped at $10,000. A civil case also would have a five-year statute of limitations, but starting at either discovery or the child’s 18th birthday. A similar bill died in committee last year. The current bill has been sent to committee, but no hearing has yet been scheduled or heard.

“Personhood” Initiatives Filed in Several States, Only Two Exclude IVF

Since January 2019, several state legislatures have introduced so-called “Personhood” bills, essentially asserting that life begins at the moment of fertilization, with various explicit protections asserted. At last count, nine such bills have been filed, including in Indiana, Kansas, Mississippi, Missouri, Montana, Oklahoma, Rhode Island, South Carolina and West Virginia. Only the latter two specify that the proposed law would not prohibit IVF. Missouri also has proposed a law, similar to that passed last year in Arizona, that would award IVF embryos to the spouse who intends to allow them to develop to birth.

Embryos Back in the Courts

U.S. Supreme Court Petitioned to Overrule Embryo Dispute Case, Declare Embryos Constitutionally Protected Human Beings

Efforts to legally declare pre-implantation IVF embryos legally recognizable, and constitutionally protected as human beings continue. A petition for certiorari to the U.S. Supreme Court was filed January 22, 2019 by the Thomas More Society, an organization that has been behind many of the embryo disputes around the country in which one party has argued that life begins—and must be protected—at the point of fertilization. A petition for “cert” is necessary because there is no right of appeal to the U.S. Supreme Court. All such cases are taken, or not, at the discretion of the high court.

The Society is representing Mandy Rooks, the former wife in the Colorado Rooks case (Legally Speaking, Dec. 2018). The case involved a divorcing couple who, after having three IVF children, divorced, and disagreed over which of the former spouses should have control over their remaining six embryos. The clinic forms did not include choices for an agreed upon disposition at divorce, instead stating that a dispositional decision would be made as part of any divorce. At that point, the ex-wife wanted more children, while the ex-husband wanted the embryos discarded. The Colorado Supreme Court ruled the embryos were not entitled to statutory protections designed for born children, that couples should record their preferences, but in the absence of such a record, a balancing test would apply to best respect each party’s Constitutionally protected right to procreate and not procreate. Ultimately, the husband was awarded the embryos.

The cert petition squarely aims to have IVF embryos recognized on a federal level as legally protected children. Likening the status of frozen embryos to slaves, and citing the famous Dred Scott decision, the petition argues that the answer to “the most basic question--is a human embryo a person or property?” must be decided by the Supreme Court on a national level and not left up to individual states. On its website, the Society states reasons it says support its position, including, “Science is firm on when a person comes into being,” that classifying embryos as property instead of human life violates the U.S. Constitution’s preamble, 14th Amendment, and “a plethora of federal and state laws,” and that “scientific reality confirms the terms ‘reproduction’ and ‘procreation’ as referring to a new human person, not property, and not to an in-between classification.”

Whether the U.S. Supreme Court will consider taking the case and wading into this highly-charged issue and type of arguments remains to be seen. Unlike some of the express exceptions for IVF placed in a few of the personhood state-level initiatives noted above, a decision on this issue would directly impact IVF, cryopreservation, patients’ respective procreative decision-making rights, and providers’ obligations.

CAS DataLoggers added as Defendant in New Ohio Tank Incident Lawsuits

Eight new lawsuits filed in January against University Hospitals Fertility Center following March 2018 tank malfunctions also have added CAS DataLoggers as a defendant in those cases. According to published reports, the new cases allege CAS DataLoggers was responsible for monitoring the remote alarm. While multiple cases remain pending, including one by a couple claiming their embryos should have the legal status of born children, reportedly, a number have been settled, and the fertility center has apologized and offered free fertility treatment to those affected.
NBC News,1/24/19;

International Developments

Cambodian Surrogacy Update

After Cambodia outlawed commercial surrogacy in 2016, authorities recently entered two homes where a number of surrogates were living and charged the pregnant women with violating human-trafficking laws. The women were released on the condition they raise the children and forfeit all fees they had either received or been promised. Media reports suggest the women were each being paid $10,000, a fraction of fees typically paid to U.S. surrogates. At least some of the surrogates were acting as gestational surrogates for Chinese couples.

Media coverage highlights the complexity of the issues and mixed impact of the government’s efforts to end the practice. Some of the women interviewed expressed relief, while others expressed concerns over how they would be able to afford to raise the children. One 24-year-old surrogate, who said she had not told her husband she was participating, said the $10,000 payment would have allowed them and their two children to move out of a shack they share with 12 family members.

Cambodia had become a surrogacy destination after surrogacy was banned in 2015 in Thailand. According to the International Monetary Fund, the average annual income in Cambodia is $1,490. Critics of the new law argue it will be ineffective given the “life-changing sums of money” paid, and that surrogates will risk arrest and the law will be unlikely to end surrogacy in that country.

Ros Sopheap, director of the charity, Gender and Development for Cambodia, said poverty is likely to drive more women to engage in surrogacy, and that few know the practice is illegal. “Very few people are aware of what’s right, what’s wrong, what’s against the law,” she said. “The reality is that these women do this because they are living in poverty. So, as long as there is a demand for surrogate mothers, they will continue.”

A column highlighting recent court decisions affecting the assisted reproductive technologies and the families they create, written by Susan L. Crockin, J.D. and guest authors who offer unique perspectives and expertise on significant legal topics.  

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