Surrogacy Done Right - Psychological Aspects
Great show today with Andrea Bryman, LMFT, on the psychological aspects of surrogacy. Have a listen - it is a great show!
Legal Puzzle of Parentage? New York Times finally gets it right on this one.....
Surrogacy & Egg Donation & the Legal Puzzle Regarding Parentage - I am pleased to see that someone at the New York Times finally posted something positive on surrogacy - a concept to say the least regarding how these cases should be handled by the courts. In fact, the writer is focusing on the science that is now evolving whereby the defective DNA of one female is removed and replaced with another female's DNA - effectively causing there to be more than two genetic parents. However, the writer elaborates with some common sense information that is both timely and responsible.
"When technology transforms a legal field — as the Internet is doing now for privacy, and digital music and video are doing for copyright — judges and legal thinkers have to decide what are the important values.
Parenthood cannot be reduced to a formula, but the law should move toward a greater recognition that the intent of the people involved is more important than the genes. That would provide useful guidance for courts to think about fractional parents — especially if the day comes when three or more people want to combine their DNA to create a baby."
Nice job and good advice for the courts and legislatures alike!
German Surrogate Twins - End of Legal Battle in Sight After 2 years
German Surrogate Twins born in India may finally be able to go home with both of their parents, of which one parent has had to remain in India for almost two years. Ladies and gentleman, this is a cautionary tale of a couple wanting to be parents so badly that proper legal advice was not obtained beforehand. You MUST check the laws of where you child is being born AND where you reside. You cannot and should be taking advice from centers who tell you that things will work out - they have in the past. You need solid legal guidance that makes certain things will go smoothly, as Murphy's Law never fails.
Here is where the case now stands:
"New Delhi, Jan 20 (PTI) The Supreme Court today allowed a German couple to approach the government of Germany to go in for an "inter-country" adoption of the twins born to them from a surrogate Indian woman.
A bench of Justices G S Singhvi and Asok Kumar Ganguly granted the permission after senior counsel L Nageswara Rao, appearing for the couple, sought 10 days time to go through the procedure as it involved certain intricacies.
Appearing on behalf of the Centre, Solicitor General Gopal Subramanaiam assured the apex court that the government "would extend all possible assistance to the petitioner (couple) to facilitate the adoption on humanatarian considation.
On the basis of the undertaking given by the couple and the Centre, the apex court posted the matter for further hearing after a fortnight."
Again, this is not a done deal, but it looks as if an end is in sight. Good luck to them!
IVF - How Old is Too Old?
IVF & Age - Britain's oldest woman to undergo fertility treatments is now 59 years old. She herself thinks that there should be an age limit, but she believes that it should be in the 60's.
"Mrs Tollefsen, who turns 60 in October, said: "I agree there should be a cut-off point. Perhaps 65 is too old, but I'm full of life and healthy.
'I know other people are looking forward to retirement while I'm looking forward to kindergarten and infant school.'
'"But if the circumstances are right I'd encourage other women my age to do this.' She had her first baby aged 57 after travelling to Russia for the fertility treatment that had been refused in Britain.
The decision to help her has sparked an angry response from people who think it is unnatural for OAPs to have families using IVF.
Her case could provoke a wave of old mums who can afford the £5,000 to overcome infertility."
Based on this angry response from those opposed to this, legislation is now being considered in Britain in order to set an age limit on IVF. In fact, politicians think that this move by Mrs. Tollefsen may set a "dangerous precedent".
Furthermore. a pro-life group commented as follows: "What's missing from this, apart from consideration of the rights of the child, is that there's no real focus on egg donation and this is very bad news.
"Would women expose themselves to the risks of donation if they knew the eggs were going to a woman of 59? You're exploiting a woman and putting her at risk to fulfil the fantasies of another woman who can't accept that she's gone beyond the menopause."
In fact, the following facts are worth noting - the oldest woman in Britain to give birth is 66-year-old Elizabeth Adeney, a company director from Lidgate, Suffolk, who had a boy last May. The world's oldest new mum, Rajo Devi, 70, from Haryana, India, had a daughter last year. Maria del Carmen Bousada de Lara was 66 when she gave birth to twins in Barcelona, Spain, in 2006. She died in July 2009. the first famous elderly mum was Rosanna della Corte from Canino, Italy, who was 64 when she gave birth to a son in 1994.
What do you think?
German Twins Born via Surrogacy in India Denied Visas
India Surrogacy & German Twins - the twins born to a surrogate in India approximately two years ago have hit another legal hurdle. The Indian courts had requested that the German government grant the children temporary visas so that the couple can finally go home from India with their children. However, news reports now state that Germany has rejected the parents' bid for the visas. The German government stated that their only real option was to adopt the twins. A cautionary tale for all when thinking about reproductive tourism.
The twins of a German couple born to an Indian surrogate mother may have a chance to go to Germany – if the couple decides to adopt them. The Supreme Court asked the couple if they would consider adopting the two-year-olds as Germany does not recognise surrogate motherhood.The apex court Monday asked Jan Balaaz and his wife if they would consider adopting the children after Solicitor General Gopal Subramanium told the court that Germany does not recognise surrogate motherhood, but allows international adoption of children by its citizens.
Subramanium told the bench of Justice G.S. Singhvi and Justice Asok Ganguly that in the given scenario, the German couple may consider adopting the twins.
He gave the information during hearing of a lawsuit by the government challenging the Gujarat High Court ruling which had directed the government to give Indian passport to the twins born to Jan Balaaz and his wife through a surrogate Indian mother.
The apex court has asked the couple to take their decision and apprise it within two days.
The apex court on Jan 4 asked the central government to try to settle the tangled issue of citizenship of the twins through diplomatic channels. The children were born to Gujarati surrogate mother Marthaben.
The government is opposed to grant an Indian passport to the twins on the ground that it would mean granting them Indian citizenship.
The Gujarat High Court in its order on a lawsuit by the German couple ordered passports for the twins born in January 2008.
The couple came to India in December 2006 in search of a surrogate mother and entered into an agreement with Marthaben, according to which she lost her right over the child after delivery.
On the plea of the German couple last month, the apex court asked the government to provide travel documents to the twins within 48 hours, while asking them to approach the German embassy for visa to the twins.
Friday Legal Updates™ - Abortion Foes & Egg Donation, NJ Gay Bill, & Prop. 8, Marriage & Infertility
First, let's start out with a moment of silence for all of the people of Haiti. Please make donations via www.whitehouse.gov.
TGIF! Now, let's start out with our updates:
1.New York - Abortion foes are challenging the payment of $10K to egg donors for use in research by the NY Stem Cell Board. Interestingly enough, no donor has donated through this program. The Board argues that the case lacks merit; however, the group believes that the offer of money for the donation of eggs exploits women. What do you think? The Board also argues as follows:
However, opponents of Prop 8 have a novel argument of their own:
Good Morning America, Melissa Brisman and the Michigan Surrogate Twins
Surrogacy, Surrogacy, Surrogacy - good morning and a shout out to my friend and colleague, Melissa Brisman, for her spot today on Good Morning America regarding the Michigan twins that were handed over to their gestational surrogate. The parents call it "legal kidnapping." What do you think? I think that this is a sad loophole in the law that needs to be fixed since she is a gestational surrogate. By the way, I think that the facts show that the parents were found fit with a home study.
So, with that, why does the surrogate think that they are "her babies?" Hasn't she been a surrogate twice before? Has she been judged as a fit parent now that she has six children? Are they receiving any state aid?
Oh, and by the way, is it true that the agreement with the parents was only oral? If so, didn't she know better since she has done this before? Or, is she hiding something due to the laws in Michigan so as not to face criminal prosecution, if any?
Many, many questions from my end. How about you? And, again, I must reiterate, speak with a lawyer first!! Or, at least before one moves forward, whether as an Intended Parent or a surrogate - because in this case, everyone here loses - both families and these children.
Tia Tequila Surrogacy and Doctor "Octomom" Kamrava
Surrogacy and Multiple Embryos - How would one ever expect these two individuals to be in the same post? But, here we have it. Dr. Kamrava, the infamous doctor for the "Octomom," is now being accused of "gross negligence."
A disciplinary complaint filed by the California Medical Board said that Dr Michael Kamrava acted “beyond reasonable judgment” by helping Nadya Suleman to conceive octuplets.
The complaint filed by Barbara Johnston, the executive director of the medical board, questioned Dr Kamrava’s treatment methods and criticised him for not referring Ms Suleman to a mental health professional after she repeatedly sought fertility treatment. At the time she conceived she was living in her mother's three-bedroomed home, subsisting on benefits.
The complaint states that Dr Kamrava implanted Ms Suleman with a far greater number of embryos than the American Society of Reproductive Medicine recommends and "beyond the reasonable judgment of any treating physician".
The ASRM expelled Dr Kamrava in September, but his medical licence was not affected, allowing him to continue treating patients.
The medical board has yet to set a date for hearing the complaint, which could result in Dr Kamrava’s license being revoked or suspended.
Hopefully, this issue will be resolved, but not before he will implant Tia Tequila! Of course, we all know that she has not been a mother yet, so he would be the perfect doctor to use for her and her brother. She claims that she wants to be a surrogate for her brother, but we also know that a woman should have given birth to at least one child and have custody of that child. That case is just what this industry needs - more problems being created by those who do not seek the advice of competent practitioners. Happy 2010!
Theresa Erickson
Attorney at Law
www.ericksonlaw.net
www.surrogacy-eggdonation.com
Television, Modern Families & 2010
With time on your hands over the holidays, I thought I would update everyone on a few interesting additions to the television line up. Modern Families on ABC is a great show in many ways, as is shows how different families can be while poking fun at itself. Some things are clearly cliche; but, you can't have everything!
On the other hand, there is a new show, which Fertility Authority actually brought to my attention, called Find My Family. It sounds like a good premise; however, what concerns us the most is the fact that it claims to bring families back together. What I do hope is that they address what a family is and that they come in all shapes and sizes regardless of origin.
Happy New Year to all - this will be my last blog post until next week, so have a great week. See you in 2010!!
NY Times Article on Surrogacy - the Debate Continues
With all of the attention this industry has given the NY Times Surrogacy article last week, which I myself had blogged about here, I wanted to give everyone a few additional updates to ponder. Once is from the American Fertility Association, and the other is from the NY Times themselves with readers responding directly to the Editor. I certainly hope that this article does more good than harm. What do you think?
Happy Holidays!
Surrogacy & The Media - Why is it always so negative?
Surrogacy gets a bad rap from the media in general, as they only seem to want to post stories that are negative or involving a celebrity. In fact, the blogsphere was in full swing yesterday after NY Times posted an article that was not so nice. It was called Building a Baby, With Few Ground Rules, and it was absolutely depressing. The piece would almost make anyone run from surrogacy - myself included; however, the most important point to take from that article is that couples, surrogates and egg donors need to make certain that they do the right things with the right team and professionals.
In fact, Kathy Benardo of Northeast Assisted Fertility Group stated it very nicely when she clarifies that it speaks of only bad surrogacies, while the piece only slightly makes the point that most surrogacies go well. What she also addressed is that "The Michigan and Indiana cases discussed did not follow the proper legal or medical protocols at all; in fact, the egregiousness is stunning. These surrogacy cases should have never happened in the first place." Yes,I agree, Kathy, wholeheratedly.
Surrogacy, despite what the naysayers may say, is not an unregulated Wild West mentality, although the article does make one think that. When done correctly, Surrogacy is an exciting option for infertile couples and individuals, as well as LGBT couples who could otherwise not have a child, to have the family that they always dreamt of.
Just look to the posts by a set of hopeful Intended Parents who have been through so much to have their baby - My Journey to Myles and Beyond. Just look at the timeline on the side. They certainly are upset with the article that over sensationalizes what surrogacy is all about. The Intended Mother puts her heart on the line, and it is worth a read.
Let me know your thoughts. We will take up Reproductive Tourism this week again involving Canada and the rules that are being violated when working in that country, so keep watching.
Friday Legal Updates™ - India, Sperm Donation, Israel, Ireland & Virginia
Hello, and welcome to Friday Legal Updates regarding surrogacy, sperm donation, adoption, and other topics of interest. TGIF! Short but sweet so enjoy!
1. Florida - Florida Must Recognize Lesbian Adoption from Washington - The answer, an appellate court said earlier today, is that Florida must recognize the adoption. In other words, when parenthood is established by adoption it is portable.
2. Virginia - Court Gives Full Faith and Credit to NC Custody Order for Gay Dads. Three-judge panel of the Court of Appeals of Virginia ruled on November 24 that the Fairfax Juvenile and Domestic Relations District Court had properly accorded full faith and credit, as required by the U.S. Constitution, to a North Carolina judicial decision awarding primary legal and residential custody of a child to two gay men (who are registered California domestic partners). Still pending before the lower court is a demand by the woman who served as surrogate mother for this child that the North Carolina custody ruling be modified to give her sole custody. One of the judges on the Court of Appeals argued in dissent that the case was not properly before the court for review.
3. Pennsylvania - Court Orders Child Support from Sperm Donor. might be the first of its kind in the U.S. A Superior Court panel last week ordered a Dauphin County judge to establish how much Carl L. Frampton Jr. would have to pay to the birth mother of the 8-year-old boy and 7-year-old girl. “I’m unaware of any other state appellate court that has found that a child has, simultaneously, three adults who are financially obligated to the child’s support and are also entitled to visitation,” said New York Law School professor Arthur S. Leonard, an expert on sexuality and the law.
4. Ireland - Gay sperm donor should see his son. DUBLIN (AP) -- The Irish Supreme Court ruled Thursday that a gay man who donated his sperm to a lesbian couple should be permitted to see his 3-year-old son regularly - in part because Ireland's constitution doesn't recognize the lesbians as a valid family unit.
5. Israel - Israel to Address Gay Surrogacy. The Israeli Health Ministry is considering to allow gay couples to have a child through surrogate mothers, according to ministry legal adviser Mira Huebner-Harel. Heubner-Harel announced Monday at an Israel Society of Obstetrics and Gynecology conference that the health ministry is planning to form a committee to update the law. "The traditional family unit has been changing lately," said Huebner-Harel, reports Haaretz. "A man, woman and child was good, but the trend is changing, and we know of male couples who travel across the sea to have children through surrogates."
6. India - Surrogacy should be governed by laws, not market: Panel. Repulsed by commercialisation of surrogacy using reproductive technologies, the Law Commission has proposed a legislation to restrict it to altruistic arrangements and clearly define the rights of commissioning parents, child and the volunteering mother. It also proposed that surrogacy should be governed by contract among the commissioning parents and the surrogate mother.
Have a great weekend!!
'Reproductive tourism's risks and ethics' by Corey Whelan
Hello, everyone, sorry for the long time between posts, but today is a great one by our own Corey Whelan of the American Fertility Association. She wrote an excellent article in the Examiner on Reproductive Tourism that I think is a must read:
"Increasingly, we find ourselves living in a global society. Through online communication, and social networking initiatives like twitter and ...... read more here.
Ms. Whelan continue as follows: "This story does not represent an isolated incident. Family formation and reproductive law attorney, Theresa Erickson, Esq., has researched programs in places such as India, Thailand, and the Ukraine, where surrogacy is not regulated or supported by law. Erickson has found that on average the financial costs are usually not much different from those found in our country, especially when you figure in the risks that must be undertaken legally, particularly in places where the levels of medical technology, safety, and privacy regulation is lower than our own.
Erickson noted that the intended parents in this case thought they had done everything right. They contacted the appropriate authorities early on in their search. And yet, neither they, nor their babies, were protected by law. Also unprotected in this case was their surrogate, or their anonymous Indian egg donor.
In countries where poverty is widespread, inferior medical care, as well as poor nutrition and substandard sanitary conditions are the consistent norm. Indian women living under these conditions may feel a level of coercion when considering the financial escape hatch that surrogacy can give them. An Indian surrogate can expect to earn somewhere between $3,000- $6,000 as a surrogate. In a country where the per capita income is not quite $500 per year, this is a staggering sum.
Is this exploitation? Or is it rather a great opportunity for the women now being outsourced to play this role? Says Prospective Families Donor Agency founder and long time donor advocate, Amy Demma, J.D. "I have heard colleagues question pre-natal care and other clinical issues. There are risks, and they are serious".
As there are no official records about surrogates kept in India, we do not know how many women give birth to babies in this way, nor do we know how many failed attempts there are. We also do not know the quality of medical care that these women will receive after they give birth, or how they will be cared for if medical complications related to the birth occur.
Everything possible should be done to obtain accurate information about the care your surrogate has and will receive both before,during, and after her pregnancy. "
Friday Legal Updates™ - Catholicism and Reproductive Technologies & Southern Australia Surrogacy Update
IVF, Reproductive Technologies, Catholicism, and Surrogacy in Australia are our updates for today. In fact, just this week, the Catholic Church issued a statement that can be found here regarding couples who are infertile and how the Church views how they proceed in creating a family. I found it to be interesting, but certainly painful for those Catholics who cannot conceive naturally.
What is absolutely great; however, is that the American Fertility Association is having an upcoming webinar on Catholics and IVF: A Pastoral Approach as follows:
"Are you a Roman Catholic or married to one and considering IVF or other forms of ART for your family? Does the Roman Catholic Church’s position raise concerns regarding your decision?
This webinar will help prepare Catholics who are considering IVF / ART or have a child born as a result of IVF / ART to have a productive and respectful conversation with their pastors from the perspective of their lived experiences. The guest speaker will be Father Jon Pedigo, STL.
For more information, please email Corey at: Corey@TheAFA.org"
Please consider attending if this is something that you are currently dealing with in your life. I am certain it will be informative.
Australia - Surrogacy is now legal for childless South Australian Couples. Unfortunately, it only applies to heterosexual couples and for non-compensation surrogacy. Definitely a step in the right direction - but there needs to be more inclusiveness.
TGIF and have a great weekend!
Doctor Comments on Profit Motive for Sperm Banks
There was an interesting article in the Washington Times on Friday, whereby the physician quoted blames the profit motive behind sperm donation (and the resulting passage of inheritable diseases) for the damage that has been done to these families. He believes that the recently reported case of the sperm donor who helped create 24 children, nine of whom became sick with an inherited heart condition, is a cry (scream) for reform.
While I do agree with about 50% of his arguments, we must remember that reform will be good if it allows people (couples and individuals) to make their own choices when it comes to reproductive freedom.
Another point to make is that even with blood and other tissues, there is some profit even in a non-profit organization - salaries are paid, as are bonuses - just look at the American Red Cross.
Secondly, I do believe that their should be some additional controls and guidance over gamete donors, as well as a way to track how many donations are occurring and the number of resulting births. This is also where follow ups are needed - if there is a profit being made, the least that can be done is some form of tracking. Genetic counseling is also admirable, but again it is based on the donor's knowledge of their own history, as well as their family's history.
Finally, although I do not agree with the complete loss of anonymity, I do think that an open identity option is preferable. In fact, out of 100 egg donors, I see only one out of the 100 that is not open to being contacted for medical reasons and when and if the child would like to meet them in the future. I think that this is an honorable compromise that will make the parties work together, as well as protect the child in the future. What are your thoughts?
Friday Legal Updates™ - Nevada Pro-Life Effect, Doctor Uses Wrong Sperm, German Twins in India, Australia Surrogacy Law, & Embryo Battle
Surrogacy, Surrogacy and more Surrogacy on this Happy Friday Morning! Too bad it is gloomy outside here in Southern California, but it could always be worse. Welcome to today's updates. Have an awesome weekend!
New York - Greenwich doctor uses wrong sperm to produce twins for one of his patients - oh, and it is his sperm!
"Hundreds of women have trusted him with their bodies, and their dreams of motherhood. Many depend on him as their doctor today.
But for nearly seven years, none of Dr. Ben D. Ramaley's patients have known that the prominent obstetrician/gynecologist had been accused of an almost unimaginable act - substituting his own sperm for that of a patient's husband during an artificial insemination procedure.
The allegation was made against the veteran Greenwich doctor in a 2005 medical malpractice lawsuit - which was quickly settled, then sealed, the very court documents shredded. The suit was filed by a couple when a DNA test revealed that the husband was not the biological father of their twin girls, born after an insemination procedure performed by Ramaley." Ouch is all I can say!
Nevada - Nevada group sues to stop anti-abortion petition. "The Nevada Personhood initiative violates state law by misleading voters about the true outcomes of the constitutional amendment, according to the lawsuit filed by the American Civil Liberties Union and Planned Parenthood.
"It utterly fails not only to mention it will ban all abortions-- even in the case of rape and incest-- that it will prevent much fertility treatment and birth control, but that it conflicts with a prior vote of the Nevada electorate and it conflicts with the U.S. Supreme Court," said Lee Rowland of the ACLU of Nevada. "Voters need to understand what a monumental change they would be making should they vote for this initiative."
The petition filed by conservative Las Vegas activist Richard Ziser seeks to add a single sentence to the state constitution: "In the great state of Nevada, the term 'person' applies to every human being."
Supporters contend the amendment would grant due process rights to "everyone possessing a human genome," according to a five-paragraph description on the petition.
It's that description of effect that abortion-rights advocates claim is misleading and against state law governing initiative petitions. The description does not use the word "abortion," although it refers to the "unborn."
Ziser said the lawsuit has been filed because opponents disagree with what it would accomplish, not because its outcome is unclear."
Australia - The Queensland Opposition has moved to exclude same-sex couples from new surrogacy laws. "The State Government is legislating to decriminalise altruistic or non-commercial surrogacy and the laws have been framed to include same-sex couples.
Opposition Leader Lawrence Springborg has introduced a Private Member's Bill to rival the Government's legislation.
"The Bill makes it clear that the only form of surrogacy which will be legal will be non-commercial and for heterosexual couples only," he said.
"Same-sex and single and commercial surrogacy arrangements will remain illegal."
UK - Couple in embryo court battle to stop the destruction of stored embryos. "They took the action after narrowly falling outside new rules which relax the upper age limit at which a woman can have an embryo implanted.
From 1 October an age limit of 55 was removed, but the woman involved had reached that age days earlier.
That means continued retention of their embryos is currently illegal
However, the couple have been granted an injunction guaranteeing nothing is done with them until the legal challenge is decided.
They are also seeking permission to be allowed to transport the embryos to the Republic of Ireland should they fail to ensure their retention within the United Kingdom."
India/Germany - Things that make you go hmmmm......India continues to sound VERY RISKY for me. German twins in surrogacy row are Indians, says High Court. "In a historic judgment, the Gujarat High Court held that children born to surrogate mothers on Indian soil are Indians, if there is any dispute regarding their citizenship in cases of foreign nationals.
Jan Balaz, a freelance writer and his wife Susanne Lohle, both Germans, could not have kids, so they came to India and entered into a surrogacy agreement with Martha Khristi, who delivered twins last April âs” Nikolas and Leonard. Their birth was registered in Anand municipality. The babies could never be German citizens, as the laws there prohibit surrogacy. The couple settled down in UK and wanted a visa for the kids from British embassy. They had already got Indian passports.
However, the passports were withdrawn by the Centre on the ground that the parents were not Indian nationals and therefore the kids were not Indians. Balaz approached the High Court, and there was a debate on the twins' citizenship. Ultimately, the High Court took a middle path in the absence of any law, and ordered the Centre to issue identity certificates, just like the Japanese baby Manjiâ's case, and on basis of this the couple was allowed to take their babies to UK.
A division Bench of Chief Justice KS Radhakrishnan and Justice AS Dave asked the Centre to give passport to babies for obtaining British visa. The Centre was willing, but surrogacy laws and citizenship were not clear.
Finally, the court considered the Citizenship Act and held: “Even if the children are described as illegitimate children, they are born in this country to an Indian national and hence, they are entitled to get citizenship by birth, as one of their parent is an Indian."
Male Infertility & A New Option for Young Boys with Cancer Diagnosis
With the American Fertility Association focusing on the often overlooked side of male infertility, today's news from www.Zikkir.com is providing great hope for those who are too young to produce sperm.
"For parents of children with cancer, the hopeful news is that pediatric survival rates have steadily improved for decades. Among the bad news — treatments that enable survival often cause infertility.
Boys diagnosed with cancer who have reached puberty currently have an opportunity to preserve their fertility: before undergoing cancer treatment, they may have their semen frozen and preserved in sperm banks. Younger boys, however, do not produce sperm, although their testicular tissue contains young cells that will eventually become sperm.
Now The Children’s Hospital of Philadelphia is offering a unique option to those boys: from infants up to younger adolescents, at-risk boys can have a tiny portion of their testis removed and frozen for their potential future use. Researchers are also using part of the tissue to investigate ways to help the immature cells in the testes to develop into useable sperm.
The procedure is experimental. No one knows if it will be effective in humans, but scientists are hopeful that successes seen in animal models will also occur with human tissue. Despite the experimental nature of this work, if offers an option that does not otherwise exist for these patients. Early observations from a new study at Children’s Hospital indicate that parents of prepubertal boys are willing to agree to the procedure, and are grateful for the opportunity, even though there is no certainty that the preserved tissue will be useful to their sons in the future.
“Even though there are currently no guarantees of clinical success, families are highly receptive to this option,” said pediatric oncologist Jill P. Ginsberg, M.D., of The Children’s Hospital of Philadelphia, who led a research study published online Oct. 27 in the journal Human Reproduction. One of Ginsberg’s collaborators is Ralph L. Brinster, V.M.D., Ph.D., Richard King Mellon professor of Reproductive Physiology at the University of Pennsylvania School of Veterinary Medicine, an internationally renowned expert in genetics and reproduction."
Great news if this now becomes a viable option!
A Call to Action Regarding Egg Donation Industry Standards
As we all know, California passed legislation this month that required egg donation advertisements to include language regarding the risks that are involved in the medical procedure. Of course, it is not enough for those of us in the industry- BUT would we have preferred that it be TOO MUCH? In fact, the original piece had wanted the egg donors to see a different IVF physician for a pre-consult, which would have added additional costs to the Intended Parents' already steep costs.
I will admit, I did applaud the efforts of the California legislature for being the first state to actually DO SOMETHING. And, despite the NAYSAYERS that are blogging incessantly about how it is not enough, let's be glad for two things: 1. Is was not TOO MUCH and 2. It is a start in the right direction. The entire purpose of the legislation was to protect the egg donors from being exploited - does it do that perfectly - heck no! Does it need to do more - heck yes!
So, with that in mind, I continue my applause as I, along with others in this industry, continue to push for standards in the industry that further protect the Egg Donors, Surrogates and Intended Parents.
A Call to Action Regarding Egg Donation Industry Standards
As we all know, California passed legislation this month that required egg donation advertisements to include language regarding the risks that are involved in the medical procedure. Of course, it is not enough for those of us in the industry- BUT would we have preferred that it be TOO MUCH? In fact, the original piece had wanted the egg donors to see a different IVF physician for a pre-consult, which would have added additional costs to the Intended Parents' already steep costs.
I will admit, I did applaud the efforts of the California legislature for being the first state to actually DO SOMETHING. And, despite the NAYSAYERS that are blogging incessantly about how it is not enough, let's be glad for two things: 1. Is was not TOO MUCH and 2. It is a start in the right direction. The entire purpose of the legislation was to protect the egg donors from being exploited - does it do that perfectly - heck no! Does it need to do more - heck yes!
So, with that in mind, I continue my applause as I, along with others in this industry, continue to push for standards in the industry that further protect the Egg Donors, Surrogates and Intended Parents.
Friday Legal Updates™ - Gay Marriage Updates, Too Many Eggs, & Colorado Initiative
Hello and welcome to another Friday edition of our legal updates. Alot has been happening in the US this week, so our focus will be there. Note as I list these updates, feel free to comment on whether you agree or do not agree. How does this case or this law affect you? There are so many facets of assisted reproduction, and there is likely someone else out there just like you who has the same questions, fears and concerns. Again, TGIF!
Washington State - The state has passed a gay partnership law that essentially provides gays and lesbian "everything but marriage." The measure asked voters to approve or reject the latest expansion of the state's domestic partnership law, granting registered domestic partners additional state rights previously given only to married couples.
Full-fledged gay marriage is still not allowed under Washington law.
Illinois - Two for Illinois this week:
a. Couple Claims Institute Mixed Up Embryos - Oh, no, not another one! "A couple who sought fertility services to prevent passing on a genetic disorder says doctors at the Reproductive Genetic Institute carelessly commingled their eggs and sperm with that of other patients to create embryos.
The husband and wife, Abdullah Abdulmohsen and Enas Ibrahim, say they sought the institute's expertise to ensure that their children would not be born with a genetic disorder, Fragile-X syndrome, which Ibrahim inherited from her parents. Fragile-X causes "mental impairment" and is the "most common known cause of autism," according to the Fragile-X Foundation. The institute promised to provide the couple with "pre-implantation" genetic testing and in vitro fertilization, according to the complaint in Cook County Court.
The couple says that Ibrahim endured hormone treatments to produce numerous eggs which the doctors promised to fertilize with her husband's sperm. But they say doctors carelessly fertilized her eggs with another man's sperm and used her husband's sperm on another woman's eggs. They say the institute informed their relative that the embryos formed from Ibrahim's eggs do not match her husband's DNA. They say the doctors at the institute did not properly keep track of the eggs and sperm or the embryos produced in the mix-up.
b. Human Eggs for Sale - Too Many of Them - "An infertile couple claims an unregistered surrogacy center was in cahoots with a woman who used an alias to donate her eggs more than a dozen times, in violation of industry guidelines. The couple says that when they demanded their money back from Angels in Waiting Surrogacy Center, its owner, Dianna Watschke, closed the company down and reopened under another name. John and Kelli Conroy claim Watschke and Angels in Waiting, of Grayslake, Ill., failed to locate a suitable egg donor or reimburse them for a hefty retainer they paid after getting false information about the egg donor, "Kristin."
They say Watschke induced them to pay money up front based on false information about "Kristin." Based on information on the defendants' Web site, the Conroys say, they contacted Watschke "to inquire about whether 'Kristin' was available and eligible to be a donor for the plaintiffs." They say Watschke falsely assured them she "would obtain 'Kristin's' medical, psychological, pregnancy history and egg donation history to confirm that there was nothing to indicate 'Kristin' was unable to undertake the risks of the egg donation cycle." See Courthouse News for more informationon link above.
Colorado - Proposed Colorado Initiative to Define Eggs as People - "A new ballot measure campaign in Colorado seeks to legally define eggs, not just embryos, as people. The measure (see PDF) seeks to amend the state constitution so that "the term 'person' shall apply to every human being from the beginning of the biological development of that human being," According to the Colorado Independent, this would "move the legal definition of a person further back into the reproductive cycle, granting cells the full spectrum of citizen rights."
The proposed measure goes further than Amendment 48, which was defeated in the 2008 elections by 73 to 27 percent and was a personhood initiative that declared a fertilized egg to be a person who enjoys all constitutional rights "relating to inalienable rights, equality of justice, and due process of law".
If the initiative passes, it would not only put a woman's right to an abortion in danger but also threaten oral and emergency contraception, IUDs, in vitro fertilization clinics, and stem cell research. Biology professor Dr. Johnathan Van Blerkom, of the University of Colorado in Boulder, told the Colorado Independent that "to begin with [embryonic] stem cell research would stop.There would be no research in genetics in the causes of the origins congenital diseases that occur in humans, how to fix them, how to protect them early." Van Blerkom also expressed concern about liability. He said, "it's criminal liability. So would any program want to freeze an embryo in the state of Colorado? If the embryos die, as they frequently do when they are thawed, is that your responsibility? Is it an act of God? An act of science?"
Maine - Maine voters repealed a state law Tuesday that would have allowed same-sex couples to wed, dealing the gay rights movement
a heartbreaking defeat in New England, the corner of the country most supportive of gay marriage.
Gay marriage has now lost in every single state — 31 in all — in which it has been put to a popular vote. Gay-rights activists had hoped to buck that trend in Maine — known for its moderate, independent-minded electorate — and mounted an energetic, well-financed campaign.
I look forward to your comments! Have a great weekend!
Blunder at top clinic sparks fresh IVF fears - How to Protect Yourself
With the new blunder discovered at a UK clinic, more patients are afraid of what if it happens to them....
In fact, as discussed by By Susie Mesure in The Independent, donor sperm with chromosomal abnormalities went unscreened, raising the risk of miscarriage and birth. defects.
"A serious blunder at one of Britain's top fertility clinics dramatically increased the risk its patients would suffer a miscarriage or give birth to a child with serious health problems, sparking fresh fears about how IVF centres are run in the wake of a series of scandals."
In fact, "Fertility experts believe the LWC's error could be the "tip of the iceberg", and that it raises serious concerns about how the industry is regulated. It is the latest in a series of high-profile incidents, including a couple's last viable embryo being implanted into another woman, and eggs fertilised with the wrong sperm, forcing three couples' embryos to be destroyed."
"The blunder constituted the most severe mistake that a clinic can make, according to the Human Fertilisation and Embryology Authority, which regulates the multimillion-pound IVF sector. In future, the watchdog will name and shame clinics for similar incidents under new rules to expose mistakes and near misses."
Yes, mistakes do happen, and we need to keep an eye on regulations that will make this field of medicine as error free as possible. In fact, there are many things that the fertility patient can do for themselves to ensure that they set themselves up for success versus the failures that we have seen in the UK, Ohio and even Louisiana.
I suggest to each one of my clients that following:
1. Make certain that your doctor and clinci is board certified and cleared by the FDA, including their lab being accredited. Look to SART, CDC, and the AMA.
2. Speak with your clinic to understand how they label embryos, sperm, eggs, etc. Also, ask questions regarding all testing provided by the clinic on embryos, sperm, and eggs.
3. Always check to see if there are any complaints against the clinic and/or the doctor;
4. Ask the clinic if they have a policy for disclosing mistakes or errors to patients? Also, what is their history of any such mistakes/errors.
5. DO NOT BE AFRAID to ASK QUESTIONS - no question is stupid or silly.
For more information, also look to Dawn Davenport's article on this issue.
Egg Donation Lawyer Theresa Erickson Applauds Passage of Egg Donation Advertisement Statute in California - the First of Its Kind in the United States
San Diego & Los Angeles, CA October 27, 2009 – Egg Donation Lawyer Theresa M. Erickson applauds Governor Schwarzenegger and Assemblyman Marty Block for enacting a statute that will further protect those women who are donating their eggs for infertile couples, in addition to those protections put in place via Proposition 71 for those donating to research. This law would require an advertisement seeking egg donors associated with the delivery of fertility treatment, including assisted oocyte production, to contain a prescribed notice relating to the potential health risks associated with human egg donation.
The final version of the bill requires that every advertisement include the following information: "Egg donation involves a screening process. Not all potential egg donors are selected. Not all selected egg donors receive the monetary amounts or compensation advertised. As with any medical procedure, there may be risks associated with human egg donation. Before an egg donor agrees to begin the egg donation process, and signs a legally binding contract, she is required to receive specific information on the known risks of egg donation. Consultation with your doctor prior to entering into a donor contract is advised." In fact, Attorney Erickson believes that the law also finally settles the question as to whether a binding legal agreement between the parties is required in addition to the informed consents signed with the fertility clinics due to the specific language that was signed into law on October 11, 2009.
According to the Biopolitical Times, this law is the first of its kind in the United States, and Egg Donation Lawyer Erickson, who has been an egg donor herself, applauds this as a step in the right direction. However, Attorney Erickson insists that more needs to be done to ensure the protection of the parties involved in assisted reproduction technologies, including embryo donation and surrogacy.
http://www.prweb.com/releases/eggdonation/lawyer/prweb3120394.htm
Anger over Croatian Law & IVF Blunders
Good Monday Morning to all! Today's focus in Europe, specifically Croatia, where they have some of the strictest IVF laws. At this point the legistlature has voted to restrict IVF treatment to married couples and only those who can prove that they have been together for at least three years. Furthermore, they are also prohibiting the freezing of embryos left over from any treatment. Donors of eggs and sperm can also no longer be anonymous, and the information can be accessed at the age of 18 by the child.
Critics claim that this new legislation is going to stop IVF treatment all across the country. The President has referred the legislation to the Constitutional Court, where childless couples and individuals will have to wait until next April for a hearing.
In the UK, a leading IVF lawyer is appalled at the latest figures regarding IVF clinic blunders just released by HFEA. "Figures released yesterday by the HFEA under the Freedom of Information Act showed a catalogue of blunders at some of the countrys top IVF clinics, including staff dropping embryos, eggs and sperm on the floor or samples being mistakenly thrown out with the rubbish. Failed storage equipment also meant that frozen embryos and sperm samples thawed which could in some cases lead to a familys last chance of having a natural child of their own being lost. "
"The figures show that between April 2005 and March 2006 140 incidents and near misses were reported to the HFEA. Of these 91 were categorised as Grade A being the most severe with 38 Grade B incidents and 11 near miss incidents. The report Driving Improvement which is available from the HFEA website here confirmed that the most serious incidents include the loss of gametes (eggs or sperm) and embryos through dropping dishes or tripping or accidental disposal and that equipment failure compromised viable embryos."
This is certainly a tragedy for all patients involved.
"Muiris Lyons added I have acted for a number of people who have lost gametes or embryos in claims against the clinics involved. The recent report shows the scale of the problem which has plainly affected a significant number of people.
The most serious IVF blunder in the UK occurred in Leeds in 2002 when mixed race babies were born to a white couple after a womans eggs were fertilised with the wrong man's sperm."
"The case gave rise to the recent acclaimed Channel 4 docu-drama Born with Two Mothers "Born with Two Mothers" in which Muiris appeared as himself advising one of the couples involved in the mix-up. The plot device was also used in the third series of hit American show Desperate Housewives which aired on Channel 4for the first time in the UK last week where childless couple Gabrielle and Carlos Solis were the victims of an IVF clinic blunder which resulted in their surrogate mother giving birth to a black child following an embryo mix-up."
Ouch!
Friday Legal Updates™ - California Regulates Egg Donation, French Courts & Sperm, Women Are "Pre-Existing, & ASRM Revises Embryo Guidelines
TGIF to all! Back from the ASRM conference in Atlanta, and I am just catching up. Very exciting conference for all. In fact, we have new guidelines listed below for embryo transfers. Enjoy!
National USA - The ASRM revised their guidelines in August, which was published this past week in Fertility and Sterility. These guidelines are a further attempt to multifetal pregnancies and certainly another step in the right direction while permitting individual treatment plans based on each patient's unique circumstances.
California - The Governor signed into law on October 11, 2009, Assembly Bill No. 1317, which requires those advertising for egg donors to include the following language in their advertisements:
"Egg donation involves a screening process. Not all potential egg
donors are selected. Not all selected egg donors receive the
monetary amounts or compensation advertised. As with any medical
procedure, there may be risks associated with human egg donation.
Before an egg donor agrees to begin the egg donation process, and
signs a legally binding contract, she is required to receive specific
information on the known risks of egg donation. Consultation with
your doctor prior to entering into a donor contract is advised."
National Debate - Is having a uterus a "pre-existing" condition? Some apparently think so. "Across health insurance markets, discriminatory industry practices put fair and affordable coverage out of reach for far too many women," Greenberger testified on Oct. 15. "We have heard repeatedly from predominately female businesses that have learned that their health insurance premiums are higher because of the gender of their employees."
Fortunately, Over the weekend, California Gov. Arnold Schwarzenegger signed a new state law that bans gender rating, which is the practice of charging women higher insurance rates than men for the same services.
France - A woman is denied her dead husband's sperm for the purposes of creating a child by the French courts. A French court on Thursday turned down a bid by a 39-year-old widow to retrieve her late husband's frozen sperm in order to have his child by insemination.
Fabienne Justel wants a sperm bank in the western city of Rennes to hand over samples from her husband Dominique, who died of cancer three months after their marriage in June 2008.
Justel hopes to use the sperm to undergo insemination in a foreign country, since it is illegal to carry out the procedure in France after the death of one of the partners, or in cases of divorce or separation.
Have a great weekend!
Friday Legal Updates - Embryo Mix-Up, California Update, & Lawsuit over Donation to Stem Cell
TGIF! Today is short and sweet as I am on my way to ASRM. Blog posts on the conference to follow.
Schwarzenegger signed the bill, SB-54 by Senator Mark Leno (D), on Sunday, his office said. Leno's bill requires California to recognize marriages performed in other states where same-sex marriages are legal.
Supporters and people opposed to gay marriage have been in court battles for years, with voters in the state approving Proposition 8 in last year's election. Proposition 8 was a ballot proposition that defines marriage to be between a man and a woman.
The judge was asked to decide whether Ochsner should be prohibited from communicating with in-vitro patients who don't have lawyers. A ruling is expected next week.
Attorneys for two couples who are suing the clinic don't want other patients who may have been affected by the mislabeling practices to be allowed to communicate with Ochsner directly, unless they've been advised they may need to contact a lawyer first. A hearing was held Tuesday in the case of in-vitro fertilization labeling problems at Ochsner Medical Center that led the hospital to suspend its in-vitro program indefinitely.
The judge was asked to decide whether Ochsner should be prohibited from communicating with in-vitro patients who don't have lawyers. A ruling is expected next week.
Attorneys for two couples who are suing the clinic don't want other patients who may have been affected by the mislabeling practices to be allowed to communicate with Ochsner directly, unless they've been advised they may need to contact a lawyer first.
New York - Feminists Choosing Life of New York (FCLNY) filed suit Friday in New York State Supreme Court (Albany) to block the use of taxpayer funds to pay women recruited to donate their eggs for embryonic stem cell research.
FCLNY Executive Director, Wendy McVeigh stated: "New York State has the responsibility to protect women. Instead, the state is using taxpayers' dollars to entice young, economically vulnerable women to experiment in this medically risky procedure."
New York State is the first governmental entity anywhere in the U.S. to approve taxpayer money to pay women to undergo an invasive procedure to harvest eggs for embryonic stem cell research.
The legal complaint was filed on October 9, 2009 in Feminists Choosing Life of New York v. Empire State Stem Cell Board. In part, the complaint states, "The Payment for Eggs Program provides significant monetary inducements to women to engage in this painful and risky procedure, which in part disproportionately appeals to economically vulnerable women...(it)...fails to satisfactorily provide for informed consent and other safeguards to ensure adequate disclosure to women of the risks of egg harvesting."
Custody and Care of Your Genetic Property
The role of a trustee is expanding. Trusts are evolving to harness medical advances. With the use of stem cells and other genetic material babies born today are expected to live over 100 years.
As part of this evolution, new state laws now make extracting live sperm from a dead body for later reproductive use legal. Cryobanks around the country are receiving customer deposits of frozen reproductive cells which include stem cells, cord blood, sperm, eggs and embryos. The courts have held that genetic material is property, like securities and may be bought, sold or transferred.
Unclaimed and abandoned property or genetic material in these banks, including sperm or embryos can be used to create a child through in vitro fertilization (IVF) without the knowledge or consent of the owner. This child, if conceived by a former wife or ex-girlfirend may have rights to an ultimate inheritance from the owners estate.
To account for this material, estate planners have begun to recommend adding provisions to their client’s trusts to be sure this property is managed properly after death – requiring trustees to understand this new language and take on new responsibilities.
Frozen Heirs
The process begins by storing sperm or an egg with the idea that a child may be born after the death of one of the parents. In the past, a child would be born after the death of his or her parent only if the father died during the pregnancy or the mother died during delivery. Most state’s laws account for this and protect an after born child to permit that child to inherit from the deceased father or mother. In other words, a child conceived during the parents’ lives is protected and is considered a lawful heir.
In 1999 everything changed with the birth of Brandalynn Vernoff, the first known child in the United States conceived with the sperm of a dead man. Brandalynn’s father, Bruce Vernoff, was only 35 when he died in 1995 from an accidental overdose of prescription medications. Thirty hours later, at the behest of Vernoff’s grief-shattered family, a doctor extracted five vials of Vernoff’s sperm and stored them in a sperm bank. In 1999, using advanced reproductive technology, a team of specialists posthumously fertilized Bruce’s widows’ eggs. The result was Brandalynn who arrived March 17, 1999 – almost four years after her father drew his last breath.
This is called posthumous conception. It is now possible and with the use cryopreservation, a family can complete its family formation objectives after the death of one on the parents.
But there are still pieces of this puzzle that need to be understood. First, how does a trustee arrange for collection of live sperm from their dead clients corpse? And, second, what inheritance rights does a posthumously conceived child have from their father’s estate?
First, as trustee, you should know, in advance, if the medical powers of attorney require the executor or trustee of the estate have sperm extracted and cryopreserved. Of course, you can avoid all of this ahead of your clients death by advising them to deposit eggs or sperm in a cryobank.
Hurry, We Need a Urologist
I interviewed Theresa M. Erickson, an astute and knowledgeable family formation lawyer based in San Diego, California. Erickson says, depending where you are “finding someone to extract sperm from a corpse may prove difficult.” She added, “most urologists are reluctant to perform the procedure.” Sperm is not preserved indefinitely in a dead body. It should be extracted within 36 hours or less. Although she said, ”one doctor told her that it can be good for up to one week.”
Therefore, for the trustee, when you receive one of these trusts, be sure you have a willing urologist available on-call as you never know when your client may suffer an accidental death. You might start by asking for a referral from Los Angeles Urologist Dr. Cappy Rothman, the physician who extracted the sperm in the Vernoff case. He is also a co-founder of the California Cryobank.
Once you have multiple vials of your deceased clients sperm, you as trustee, will need to get it deposited into a cryobank. To get clear on this, I interviewed Scott Brown, from the California Cryobank, America’s biggest and oldest sperm bank. Brown says is easy to make a deposit. This is usually handled though the physician that collected the sample. However, they will take a direct deposit from a trust company on behalf of their trust client. Opening an account and making a deposit is not like depositing money with Bank of America. Brown says you should have your attorney draw up an agreement. This agreement should be clear as to who is the sperms owner.
The next step for the family it to decide what to do with the sperm. This decision has to be made quickly. California laws say the sperm must create a child within 2 years from the death of the donor, or the child will not have an entitlement to an inheritance. It is legal to use the use the sperm beyond two years, but the child will not see any money from the estate.
All of these thorny issues involving family formation after death of a spouse should be spelled out long before the death of a family member. I found one estate planning law firm in Denver that deals with these issues head on. I interviewed Teresa C. Baird, last week. Her firm, Fairfield and Woods, PC provided a sample trust provision for attorneys to address the inheritance rights of posthumously conceived children.
Barid gives her clients an intake questionnaire before drafting a will or trust. Baird always asks the question about cryo banking genetic materials — “its good practice.” She also asks, “what would you like to happen in the event of your death, would you like sperm or eggs deposited into a cryobank?”
Baird says the legal authority in this area is ”murky” at this time, but will likely be better defined as this practice increases. Baird says, “it is essential that planning take place, beginning with an critical conversation, as very few courts have addressed these questions.”
Questions of Control
Both attorney’s Erickson and Baird agree that genetic property or materials need to be accounted for both before and after death.
While alive, any deposits made in the cryobank need to be correctly titled to either the owner of the material or the trust that governs its disposition. Therefore, when an estate planner creates at trust provision that requires the redemption of sperm or embryos from a cryobank it is important that the trustee have proper standing with the depository.
Brown from the California Cryobank says the instructions as to what to do with the material must come from the owner or the person who has a power of attorney. While alive this agreement should have specifics as to who has the right to contribute and withdraw these materials.
In following the death of the owner of such material it is important to specify in any trust provision that, in the case of sperm, that it be used only by a specific individual and for a limited time period. Erickson pointed out that in a case where a celebrity or multi-millionaire that had former wives or girlfriends “you don’t want them coming forward and claiming the sperm and therefore a right to a child and its rightful inheritance.”
In addition to what may be available to a trust company client for legal remedies there are certain measures that the owner of sperm should do to keep track of his genetic property.
A Mischievous Mistress
Here is a hypothetical situation that might exist in the absence of controls of sperm. Let’s say you have a client who is 70 years old and is worth $100 million. He is married, has three children and a wife. In addition to his family life he has several mistresses, one of which has a hidden agenda.
As our multi-millionaire has frequent sexual relations with his mistress he is strict about using a condom.
At the end of each episode the mistress politely removes the condom filled with semen, takes it into the bathroom, and flushes the toilet. But instead of discarding the condom with the semen, she stores it in a plastic bag. After he leaves, she promptly takes it down to a cryobank and deposits it under her name.
Over the span of a ten year relationship she may have made dozens of deposits.
Then one day the multi-millionaire suddenly dies. He is not around to make any claim one way or another to have fathered another child but our mischievous mistress becomes impregnated with the multi-millionaire’s sperm, announces to the estate she is pregnant with his child. Her lawyers come to the trustee perhaps you, to include her child in the class of beneficiaries for distributions to his children. At the end of the it is her word against the estates as to what the intent of the deceased client.
Of course this is a hypothetical but it can happen. There are two things that might be done when advising a multi-million dollar client: 1) Make certain that estate planning documents are crystal clear who are and are not legitimate children, entitled to the inheritance. 2) If one is having an affair it might be a good idea to take your soiled condom out the door with you!
As reproductive medical technology improves and more genetic property including sperm, eggs, embryos, stem cells and more get stored at cryobanks there will become an ever so important requirement for trust administrators to understand this new science and to be thoroughly familiar with how to both control and manage your client’s genetic property.
Jerry Cooper, senior editor, The Trust Advisor Blog. Steven Maimes contributed to the research.
The Single Embryo Debate Continues
The New York Times brought up the ever evolving debate regarding multiple births and single embryo transfers. In fact, it is my opinion that the piece was meant to blame some of the rising health care costs on the IVF patients themselves. Yet, what I don't believe they addressed well enough was the flip side of this industry that involves the use of stimulation medications by OB/GYNs in order to obtain a pregnancy without the supervision of an IVF doctor. As in the case of "Jon and Kate plus Eight" and other high order multiples, they are often the result of the use of medications such as Clomid (excluding the "Octomom" of course) and interuterine insemination.
The piece does, however, address the painful choice that the patients, as well as their doctors, must make in balancing their desire to have a healthy children against statistics that are often not in their favor. However, why is the IVF patient who is expending large sums of money and often betting it all on one cycle being targeted? Again, what about the use of these stimulation medications without the counseling that is often required by IVF clinics in order to make certain that these patients understand the true definition of selective reduction and its risks? Then again, as was addressed by E.E. Evans in the piece, "Three in a Casket," even if the patients are counseled, they often reject their own physician's advice to reduce.
Truly, this is a national debate, which is one that is likely not to go away; however, there is a much bigger issue that involves the lack of medical insurance coverage for fertility treatments. How can the government or state legislatures regulate an industry that is not covered in some degree by the insurance companies? Yes, they can restrict the practice of one embryo per women of a certain age, but only if there is some coverage for IVF cycles, as in the UK. For now, these treatments are costly, and the likely solution is to bring the IVF physicians in on the risk by offering free storage and/or no subsequent frozen embryo transfer fees.
We need to continue this debate.
Anonymity - Egg Donors, Sperm Donors, Embryo Donors, & the Donor Conceived Children
Alot of conversations have been going on these days regarding anonymity in the field of third party reproduction, and I agree that something needs to be done in the US very soon. In fact, the recent case of Doe v. XYZ Company (75 Mass.App.Ct.311) has increased that attention, as it involves a case of a woman who gave birth to twins after artificial insemiantion using donor sperm. The Plaintiff, the mother of these two girls, is asking for both Donor #D237's identity from the sperm bank, as well as child support from the donor himself.
For now, the Massachusetts Court of Appeals has remanded the issue to the trial court but declared "such cases cry out for legislation defining rights of the participants." Unfortunately, without any statute in place, the Court cannot compel the defendant to reveal the identity of the anonymous donor.
As a side note, the Plaintiff has since placed the children in state Department of Children and Families - for reasons not made clear in the ruling.
So, where does that leave us as a society? Many other countries require that the egg or sperm donor's information be released to the child once they are 18 years of age; h0wever, many fear that this will cause the number of donors to diminish as they have done overseas.
My other thought is that these donor conceived children should have some rights in this matter at some point - but how should we as a society handle this? Donation is a positive thing in many aspects, as these children would not be in existence without the donation. How does a donor conceived child respond to that aspect?
On the other hand, if someone is donating their genetics to help someone have a child, why should they be burdened with the obligations of a parent? And, why should people have to give up the right to have a child with the use of a donor just because some people do not agree with it? Julie Shapiro attempted to tackle this issue several times in her blog.
Well, I am currently working to develop my actual opinion at this point, as I was once an egg donor for quite a few couples as a matter of fact (including married couples, gay couples and a single woman). Do I mind if the children want my information? Not at all. Do I want to pay child support? Hell no! I have my own children, who are legally, genetically and socially my children.
On the other hand, I also have twin nephews who are my brother's children legally and socially, yet not biologically. Should he pay for their support? Yes, as he chose to bring these children into this world. But should my donor conceived nephews have access to their donors' information in the future - I think so but intially on a limited basis. Maybe there is a way that we can compromise for all parties, as these children that are donor conceived are certainly loved and wanted.
If the states want to legislate, we need to move towards a system where the donors information is stored for medical purposes and for potential contact in the future if all parties agree. Most egg donors in particular are open to having contact in the future; however, not without being contacted beforehand by me so they can access the situation at the time they are asked.
In fact, my office now offers Information Storage, which will maintain the files for a minimum of 21 years (or longer if requested by the Parties). In reality, we have been offering that service for over a decade, as I have always felt compelled to ensure that this information is available to the children and/or their parents. Maybe this is a compromise that will allow donor conceived children to be born to those families who need to use a donor to have a family, while permitting these children access without obligating the donors legally into support or parenting.
Let me know your thoughts, as I think that a continued discussion will help me develop my opinion, as well as help others with theirs.
Friday Legal Updates™ - Montana Same Sex Parentage & Protecting Women from Themselves?
Hello & Happy Friday! I am in Montreal where it is rainy and gloomy (yuck!), but enjoying a great ABA convention. Today just one legal update on Montana and an issue the industry is currently struggling with.
Montana - Montana State Supreme Court uphold same sex parentage via Proud Parenting.
"The Montana Supreme Court has upheld a woman's custody rights to the two children her same-sex partner adopted during their relationship.
The Supreme Court on Tuesday backed District Judge Ed McLean's ruling last year that granted Michelle Kulstad joint custody of the two children — a 9-year-old boy and a 6-year-old girl.
The children were adopted by Kulstad's former partner, Barbara Maniaci, in 2001 and 2004. State law does not allow both members of a same-sex partnership to adopt.
After the relationship ended, Kulstad filed in January 2007 to receive parenting rights. Maniaci, who is now married to a man, filed a motion to dismiss Kulstad's petition.
"Maniaci cannot rewrite the history of the fact that she and Kulstad lived together for more than 10 years and jointly raised the minor children in the same household," Justice Brian Morris wrote in the court's 6-1 opinion."
Worldwide Issue - Todd Essig asks the question: Infertility treatments: Do we need to protect women from themselves? He asks, as have I, should we allow women to sell their eggs and/or their wombs for that matter to the highest bidder when they are fully informed, even someone who is economically desperate? In fact, as I posted earlier this month, one expert in the UK called egg donors prostitutes. Well, besides that comment, should we protect women from themselves?
Or, should we allow all persons, men and women, to make their own informed decisions? Mr. Essig even goes on to say that we "need to stop being so squeamish about women using their bodies for their own perceived benefit." And, I say, let's stop being paternalistic. And, as Mr. Essig stated, what about people working in "coal mines or as a field hand on a chemical farm?" Isnt that MUCH more dangerous than donating eggs or being a surrogate? What say you?
Tips for Choosing an Egg Donor via Conceive Magazine
Great article courtesy of Conceive Magazine. Important reading!
Written by Pamela Guthrie O’Brien
A growing number of women—especially those over age 40, and women who have been unsuccessful with other infertility treatments—are using donor eggs.
“More women are choosing this option because of increased awareness and higher success rates,” says Laurel Stadtmauer, M.D., Ph.D., assistant professor of obstetrics and gynecology at the Jones Institute for Reproductive Medicine at Eastern Virginia Medical School. “About 70 to 80 percent of women will conceive within two cycles of using donor eggs.” When selecting a donor, consider the following:
The qualities you’re looking for.
• Is the donor’s religious background important to you?
• Her physical and personality traits?
• Her academic achievements?
• Talk frankly with your partner about the characteristics that top your list.
The best fit.
Many IVF clinics have programs that help match couples to an anonymous donor. But their policies can be very different. Some recruit their own donors, others use outside donor egg recruitment programs. Some allow couples to see photos of potential donors (as long as they’re non-identifiable), others don’t. “At Jones, couples fill out their family history, as well as a wish list [of characteristics],” says Dr. Stadtmauer. “Our program matches the couple and the donor according to looks, ethnicity, medical and psychological histories, education, and personality traits. We give recipients profiles of several donors to review.” Ask about the procedures and policies your clinic uses, and make sure you can live with them.
The kind of donor you want.
There are two options: Using a donor you know, such as a sister or close friend, or an anonymous donor. The advantage of a relative or friend is that you’re likely to know the person’s genetic history, says Dr. Stadtmauer. However, it does raise complicated issues, such as the donor’s future relationship with the child. Figure out which arrangement makes you most comfortable.
The testing process.
Whether you choose a known or an anonymous donor, the screening will be the same. The donor must be a healthy non-smoker who is 21-32 years old. She will undergo extensive medical, psychological, and genetic testing, as well as screening for infectious diseases, such as HIV.
The legal issues.
Donors sign away their rights to the eggs retrieved, the embryos produced, and any child conceived as a result.
Children of Sperm and Egg Donation
There seems to be quite a bit of an uproar over the case involving the woman of sick twin daughters, who were conceived via sperm donation. Some are saying that she signed on the dotted line, and some are saying that the clinic is obligated to provide her the information on the donor. What do you think? I think that the system regarding donations needs to be overhauled but via the clinics and agencies, not via the legislatures where the real issues are often misunderstood. In fact, Sean Tipton of the ASRM stated it quite well as folllows: he states that he "believes the donor debate is best left between adults - not courts and legislatures."
“Most states have established a clear path for sperm donors to relinquish their parental rights and obligations,” Tipton said. “Agreements entered into need to be honored unless all parties agree to change the terms.”
I agree with that perspective, but these children and the parents of these children may need contact in the future, which I why I am a big advocate of this information being stored. My office does it for a 21 year period in a very efficient and safe way, and it is time that others do the same. Ultimately, we cannot force these donors to comply, but it should be an option.
What are your thoughts?
Friday Legal Updates™ - Embryo Mix-Ups, India Surrogacy, Lesbians Settle Lawsuit, Indiana Triplet Update & Texas Gay Divorce
TGIF, fellow bloggers and readers. We have more information on the embryo mix-up case, as well as a new development in India with Baby Manji and the Louisiana clinic that mislabeled embryos. Happy reading!
California - the lesbian couple who sued the clinic in San Diego for refusing IVF treatment based on their sexual orientation has settled. According to a joint statement, the defendants are "sincerely sorry that Ms. Benitez and Ms. Clark have felt this way, and have never meant to treat Ms. Benitez with disrespect."
"Defendants want all of their patients, including those who are lesbian and gay, to feel welcome and accepted in their medical practice, and are committed to treating all of their patients with equal dignity and respect in the context of the highest quality of medical care."
Benitez sued, and the case went all the way to the state Supreme Court, which ruled last year that Benitez was entitled to be treated like other patients with her same health problem, and that constitutional protections for religious liberty do not excuse unlawful discrimination.
"I didn't look for this fight, my doctors forced it on me," said Benitez, now a mother of three.
"We felt helpless, humiliated and trapped, and it's been a long, hard fight to get to this point," she said. "But we know we've made a difference in the law that will help people in California and hopefully, across the country. We are very proud of that." Bravo!
Reaffirming its earlier decision, the court said child-welfare officials in New Jersey must determine whether Stephen F. Melinger can
provide a safe and stable home for the twins, Kathy Zee and Karen Zaria Melinger, who were born in April 2005, the Indianapolis Star reported Thursday.
The girls, now 4, can stay with Melinger in New Jersey while he goes through the adoption process again, the Star said.
The court expressed concerns about false statements by Steven Litz, a lawyer who represents Melinger and owns a firm that solicits clients and surrogate mothers on the Internet.
provide a safe and stable home for the twins, Kathy Zee and Karen Zaria Melinger, who were born in April 2005, the Indianapolis Star reported Thursday.
The girls, now 4, can stay with Melinger in New Jersey while he goes through the adoption process again, the Star said.
The court expressed concerns about false statements by Steven Litz, a lawyer who represents Melinger and owns a firm that solicits clients and surrogate mothers on the Internet.
During adoption proceedings, the high court found, Litz had told a Indiana, court Melinger lived in Indianapolis when in fact he had lived in Union City, N.J., for 10 years. Litz also had indicated the surrogate mother was inseminated with sperm from Melinger and another donor when Melinger actually did not donate sperm, the court found.
Texas - A Texas judge has cleared the way for two Dallas men to get a divorce, ruling that Texas' ban on same-sex marriage violates the constitutional guarantee to equal protection under the law. District Judge Tena Callahan's ruled Thursday that the court "has jurisdiction to hear a suit for divorce filed by persons legally married in another jurisdiction."
Texas Attorney General Greg Abbott has argued that because the state doesn't recognize gay marriage, its courts can't dissolve one through divorce. Voters approved a state constitutional amendment banning gay marriage in 2005.
Abbott says he'll appeal the ruling.
"The laws and constitution of the State of Texas define marriage as an institution involving one man and one woman," Abbott said in a written statement. "Today's ruling purports to strike down that constitutional definition — despite the fact that it was recently adopted by 75% of Texas voters."
Embryos Mix Up Updates - Ohio & Louisiana - Updates on these cases, as well as a response by the Ohio clinic and the ASRM.
A Lafourche Parish (Louisiana) couple said that Ochsner Hospital Elmwood can't find four embryos that its fertility clinic froze more than two years ago. Kim and Abraham Whitney "hoped (that one of) these embryos would be their future child and a sibling to their only child," said their attorney, Melanie Lagarde, who earlier this month filed suit on behalf of the Whitneys against Ochsner and the embryologist they believe was responsible.
This is the second class-action lawsuit filed against the clinic in recent months. In July, a St. Charles Parish couple, Heather and Duane Hebert, filed suit after a pair of embryos they had frozen also disappeared.
The Heberts were also notified that, even if genetic testing could determine which embryos were theirs, they would not be able to implant them because the Food and Drug Administration found that required screenings for sexually transmitted disease were not done prior to freezing, the lawsuit stated.
The clinic in Ohio responsible for the embryo mix-up between a Metro Detroit couple and a Toledo couple is promising it will "never happen again," the attorney for the clinic announced Friday.
"This has never happened to this medical practice before, and they are working day and night so that it will never happen again," Paul Manion, a Detroit attorney, said in a prepared statement.
Manion declined to name the clinic. But he said an unfortunate mistake had been made and, when it was discovered, the families were immediately notified.
Mixups Increase Scrutiny of Fertility Clinics
However, in a statement released today, ASRM executive director Robert W. Rebar said:
"Even with these efforts, the incidents reported this week make it clear that there is still work to do. As the leaders in reproductive medicine, we will redouble our efforts to develop systems that will assure our patients and the public that these kinds of mistakes will not happen.
"The time has come for policy makers to sit down with the leading experts in the field to explore ways we can codify our standards to give them additional regulatory teeth.
"We will lead an effort involving our members, representatives of patient groups, policy makers and other stakeholders to work together to come up with solutions."
India - First, the Health Ministry in India send ART bill to law ministry for vetting. The Bill is expected to find its way to the Union cabinet soon for its approval once it gets the Law Ministry's nod.
The Bill is being introduced to regulate thousands of infertility clinics that have mushroomed in the country over the past several years. The Bill will define the establishment and functioning of these clinics.
Senior Health Ministry officials confirmed that the Indian Council for Medical Research (ICMR) has finalised the redrafting of the Bill and the ministry has sent the Bill to the law ministry for its opinion. After getting the approval from the Union cabinet, the Bill be introduced in Parliament for final seal of approval before implementing it in the country.
Sources said that the ministry had incorporated several changes in the final draft as it had received a large number of suggestions and comments from foreign countries, embassies, legal institutions, international institutions, experts and others on the draft bill. The government had late last year published the draft bill and had invited suggestions and comments from the public on the proposed bill. The Bill, drafted by an 11-member expert committee appointed by the health ministry, proposes to establish a National Advisory Board and state Boards to regulate and supervise the establishment and functioning of the infertility clinics in the country.
The bill, once it gets the Parliament nod, will provide for a national framework for the regulation and supervision of assisted reproductive technology (better known as infertility clinics) and matters connected therewith or incidental thereto. Apart from putting strict parameters for the establishment of an infertility clinic, the Bill also defines the minimum requirement regarding staff in an infertility clinic and minimal physical requirements for a clinic.
Again, still no laws in India, so parents beware. Plus, a suit has been filed to stop baby Manji from leaving the country. The Jaipur bench of Rajasthan High Court on Tuesday issued notices to the union and the state home departments asking them to produce the Japanese surrogate baby Manji in court within four weeks and explain why the baby was being allowed to be taken to Japan. A division bench of Justice R C Gandhi and Justice Guman Singh issued notices citing ambiguity regarding surrogacy in India. The baby is at present in a Jaipur hospital under the supervision of her Japanese grandmother.
The notice was issued on a habeas corpus petition filed by a Jaipur-based NGO, SATYA, alleging that in the absence of any surrogacy law in the country, the surrogate child born out of the sperm of a Japanese father could not be kept in the custody of her Japanese grandmother, Emiko.
THERESA ERICKSON ON EMBRYO MIXUP
Enjoy, and let me know your thoughts!
http://video.yahoo.com/watch/6086410/15814600
Theresa Erickson
Egg Donation Lawyer
www.ericksonlaw.net
Friday Legal Updates - PA Triplet Case, Infertility Coverage, & Misleading IVF Success Rates
TGIF! Hope that everyone has a great weekend! Will be speaking in Las Vegas at a LGBT conference - definitely fired up for this one! Oh, and I will also be inVegas - poor me....
Here at the updates for this week. Enjoy!
Pennsylvania - A judge will not dismiss a lawsuit against a northwestern PA hospital over allowing a surrogate (gestational, I might add) to take home triplets she has given birth to. Some may not remember the case, but here is a link if you need a recap. The Parents are suing the hospital for allowing her to take the babies home - why was social services not called? I guess that they will now live and learn.
California - The California Supreme Court decided this past Wednesday not to revive a challenge to the limited insurnace coverage for infertility treatment offered by employer provided group health plans. The panel threw out an appeal by a woman struggling to conceive a child, who contended that Blue Cross of California had engaged in false advertising and unfair business practices. The Appellate Court noted that the Plaintiff's argument was based on an erroneous premise that Blue Cross was required to offer and provide full coverage for fertility treatments, noting that "nowhere does section 1374.55 state that coverage that the parties negotiate be full. What are your thoughts?
Illinois - Dr. Rapisarda with Fertility Center of Illinois explained that physicians and clinics have different criteria that limit entry into their IVF programs, thereby leading to higher pregnancy rates and better statistics. As a result, he urges patients not to focus on numbers alone, as some statistics may be misleading. Good point, Dr. Rapisarda!
The American Fertility Association Responds to Alleged Embryo Mix-Up Case in Ohio
September 24, 2009 - An Ohio woman, 40 year old Carolyn Savage, claims a fertility clinic implanted the wrong embryo and that the baby she’s due to deliver the first week in October is not hers. Several media reports state Savage and her husband plan to give the baby boy to his biological parents. The name of the clinic is not being released in this very rare alleged case.
The AFA is issuing the following statements regarding the matter:
Medical:
“If the facts in the Ohio case are concordant with media reports, it’s a very unfortunate circumstance for all concerned, a result not to be minimized or trivialized. The story is newsworthy, however, because it is an extremely rare event.
In 2007, there were 132,262 IVF cycles performed in the United States (Fresh, Frozen and Donor Egg, per the CDC) in which more than 300,000 embryos were placed into the intended recipients. Embryology laboratories have extremely rigorous procedures to maximally ensure public safety and the health of our patients and their children born of IVF.
The Ohio case is rarer than 1 in a million and I speculate that human error, not malintent, will prove to be the root cause. I have every confidence that each IVF program in the country will review their procedures and discuss this case to reinforce what we already know, that the work we do each and every day is very special and that the hundreds of thousands of patients we help each year are counting on us to do our best every day.”
-Alan Penzias, MD, Member, AFA Board of Directors
Legal:
“Unfortunately, due to the acknowledged negligence of the IVF Physician and clinic, this Ohio couple, by choosing to proceed with the pregnancy, is obligated to afford the other couple the legal rights to this little boy. Any case, such as this that would go before a court of law, would likely grant full legal and physical custody to the other couple without any visitation to the Ohio couple. They appear to be aware of this – such an unfortunate event for all parties involved.”
-Theresa Erickson, Esq., Member, AFA Board of Directors; Member, AFA Legal Advisory Council
Mental:
“As a psychotherapist and co-chair of The American Fertility Association, patients receiving treatments live in fear of this happening to them. The AFA continues to encourage patients to become educated consumers and ask their treatment providers about their procedures for safeguarding their genetic materials. Programs are required to have in place strict guidelines that are overseen by numerous state and federal agencies requiring very specific procedures to be practiced and in place by each reproductive center.
These incidents are rare and patients should feel assured that the majority of centers follow these rigorous guidelines. When these rare accidents do occur, it can be not only psychologically devastating to the couples involved in this mix-up but emotional damaging to the thousands of patients who are currently receiving or starting fertility treatments. We at the AFA hope that the media will allow these couples, the children involved, and the baby yet to be born to privately get the support that they need to cope with this emotionally difficult experience.”
-Patricia Mendell, LCSW, Co-Chair, AFA Board of Directors
The American Fertility Association, a 501 (c) (3) national non-profit organization is a lifetime resource for infertility prevention, reproductive health and family building.
http://www.theafa.org or .
Brian Armentrout
Communications Director
brian@theafa.org
Alan Penzias, MD
apenzias@bostonivf.com
Theresa Erickson, Esq.
terickson@ericksonlaw.net
Patricia Mendell, LCSW
pmendell@aol.com
Egg Donation = Prostitution? Are You Kidding Me?
Wow, I love when people give me something to talk about. And, this story is certainly one of them. I understand and acknowlegde arguments made by some against egg donation because of exploitation and medical risks, but this is truly a new one.
At a conference in the UK, Dr. Naomi Pfeffer, who researches controversial developments in medicine, told the Motherhood in the 21st Century Conference at the University College London that “The exchange relationship is analogous to that of a client and a prostitute. It’s a unique situation because it’s the only instance in which a woman exploits another woman’s body.”
Honestly, I do believe that her intentions were good as she was merely warning that increasing numbers of “vulnerable women in developed countries” were being exploited by Westerners who were desperate to conceive. I do understand issue as stated above, and I do think that something needs to be done on that front; however, charges of prostitution by the women desperately wanting a child??? I guess it got people to listen.
She continued by stating that “Most of these women are in developing economies where access to healthcare is limited by their ability to pay. They are often vulnerable women and it’s a very unequal economic relationship.
“These women are being encouraged to take real risks with their health through ovarian stimulation and egg retrieval. It commodifies women’s bodies and treats their reproductive capacities as a service.”
Unfortunately, Pfeffer also stated that British parents should face up to the consequences of their actions. “They should know that they are using vulnerable women. These women who are buying eggs have to appreciate that the eggs don’t appear from a stork or from under a gooseberry bush.” However, we cannot forget that many British doctors refer patients abroad if they do not want to join the NHS's three-year waiting list for donor eggs. That is clearly a long time for any woman.
The likely answer in all of this is not to punish the women who desperately want a child, as they too are vulnerable. Instead, changes within the British government, as well as these other countries such as Spain, Romania, the Czech Republic, and Ukraine, need to take place to ensure that everyone is protected.
Again, just my two cents.
Woman Implanted with Wrong Embryo & Carrying Baby to Term for Couple
A woman in Ohio was implanted with the wrong embryo eight months ago, and she and her husband decided to keep the pregnancy, despite the fact that they know that they will be saying "hello and goodbye" at the same time to the child that is not theirs.
According to the couple, when they received the call from the doctor telling them that they were pregnant, the doctor also told them in the same sentence that it was the wrong embryo. The doctor gave them the option to abort; however, they could not go against their religious beliefs. I find this couple to be an honorable couple, and I hope that their journey ends well. It appears that they intend to use their remaining embryos in a gestational carrier very soon, as the woman can no longer carry.
A very sad story, and we hope them, as well as the child and his family, the best. As for the IVF doctor and clinic, it was honorable that they informed the couple right away unlike Dr. Katz in California, who has since lost his license and who did not inform the woman until the child was 10 months old. Unfortunately, providing the information right away still does not take away the damage that was done.
I am not sure what to say on this one. I think this couple is incredible, but what an experience. What do you think?
Botched IVF Procedure at Clinic Finally Settles & Yet Another is Filed
The San Francisco Gate recently reported the following:
"A San Mateo County couple filed suit against a San Francisco fertility clinic this week, claiming the doctors implanted the wrong sperm into the woman's eggs and then destroyed the embryos without consent.
According to the complaint, filed Monday in San Francisco Superior Court, Katie Aschero, 31, of El Granada underwent egg retrieval in February in an effort to have a child with her husband, Robert, via invitro fertilization.
The Ascheros later learned that seven of the 13 viable embryos had been inseminated with another man's sperm and that the clinic's staff destroyed those embryos in violation of the couple's contract with Laurel Fertility Care in San Francisco, the complaint said.
The Ascheros' attorney, Nancy Hersh, said the clinic's decision to discard the embryos violated their contract."
[Editor's Note: This post was originally based upon a National Law Journal article. Laurel Fertility Care has disputed some of the reporting by the National Law Journal; therefore, we are removing the disputed information in order to keep our readers from being influenced by material that may not be correct.]
Friday Legal Updates - Florida Personhood, UK Update, Wisconsin Surrogacy Insurance, & Croatia
Wow, can you believe that summer is officially over already? I can't because of the blistering heat here in Southern California; however, another Friday is upon us with some legal updates for your thoughts and comments.
Florida - Last November, Colorado pro-life groups placed a ballot measure before the voters in order to extend "personhood" to the moment of conception. This amendment was rejected by 73% of the voters in Colorado; however, the groups have now set their sites on Florida. The new amendment would define even a newly formed embryo as a person. The implications of this becoming law is an issue those suffering from infertility and living in Florida need to consider.
Wisconsin - Two women have filed a case in Wisconsin where their insurers have denied them maternity coverage due to the fact that they were surrogates. This issue is now before the State Supreme Court, so we will have to wait and see how this one ends and if it will have implications elsewhere.
UK - Women whose embryos were to be destroyed in the next few weeks have been given an extension. With the new HFEA of 2008, which comes into force on October 1, everyone with embryos in storage will be able to keep them there for a decade versus the previous law of 5 years. "These new rules will come into effect on October 1 and I will be seeking to make an Order to Parliament to ensure this applies to embryos that are 'out of time' on that date."
Professor Lisa Jardine, chair of the Human Fertilisation and Embryology Authority (HFEA), said: "I am delighted that the Government has listened and made this common-sense decision.
"This will be an enormous relief to all of those people who faced the heartbreak of seeing their embryos destroyed all because of a matter of timing. We will be contacting clinics immediately so that they can inform the patients concerned and make appropriate arrangements for the continued storage of their embryos."
Croatia - The government moved Thursday to amend a law involving IVF after strong criticism from human rights and parents groups over its criteria for couples entitled to treatment.
"Under the amendments forwarded to parliament, couples will now only have to sign a notarised statement confirming they are in a relationship rather than have to prove before a court they have been together for three years, Health Minister Darko Milinovic told a cabinet session.
Also as part of the changes, children conceived by donated eggs or sperm will now be allowed to obtain information about his or her biological parents once turning 18 only if donors have given their prior agreement.
However provisions in the law which ban the freezing of embryos will not be altered.
Croatia's original legislation on medically assisted reproduction dates back to 1978, when the world's first test-tube baby was born. The former Yugoslav republic had its first IVF baby five years later."
Subscribe to my blog here.
UCI Egg Stealing Case Appears to Have Finally Settled
According to the California Bar Journal, the case of Beasley v. Regents of the University of California has been settled for $4,230,000.00. It states that the doctors at UCI Center for Reproductive Health were found to have engaged in the misappropriation and nonconsensual transfer of donor eggs, several of which resulted in live births. The original case was initiated in 1995. Look to the Orange County Courts website for case #JCCP 3213 for additional information on the actual case.
Also, don't forget about our upcoming egg donation and surrogacy conference in San Diego on September 23, 2009.
FRIDAY LEGAL UPDATES - Criminals & Adoption, Battle over Surrogacy, & CA Same Sex Bill Passes
TGIF! I hope that those who are celebrating Labor Day this long weekend have a great time - I know I will.
New York - A history of crime and drug addiction spanning two decades should not bar a man from being able to adopt, so says a New York judge who credited the man's attempt to turn his life around. This ruling will allow this man and his wife to be placed on the adoption list. His last conviction was 1995, and he claims to be clean and sober since 2000 when he was released from prison. Many think it was a good decision - what about you? I know what Bill O'Reilly would say.
California - Legislation authored by Senator Mark Leno that resolves ambiguities about how out-of-state same-sex marriages will be recognized in California passed the Assembly today with a 44-27 vote.
Senate Bill 54 bill clarifies that same-sex couples who married outside of California before Proposition 8 went into effect last year are recognized as married spouses, not unlike the 18,000 same-sex marriages performed in California. The legislation also confirms that same-sex couples who married outside California after Prop 8 went into effect on November 5, 2008, or plan to do so in the future, must receive the same rights, protections, benefits, obligations and responsibilities afforded to opposite-sex spouses, with the sole exception of the designation of "marriage."
Australia - Couples dealing with infertility in Melbourne and the state of Victoria, Australia, will now require that all couples wanting to go through IVF first have a background police check. Should the background check find any convictions for serious sex or violent crimes, past incidents of having children taken out of their care, or any other crime that is considered a potential risk to children – IVF should be forbidden to the couple.
As stated in the article, I also agree that someone with serious sex or violent crime in their past shouldn’t be raising kids; however, are they going to force everyone else in Victoria to use birth control? And only allow people to have children if they pass background checks? Unlikely!
This law is unfairly targeting couples with infertility. It’s discrimination, and I too think it’s blatantly wrong.
Under current Czech law, biological mothers are not guaranteed parental rights to a child born to a surrogate. The surrogate mother could gain custody rights to the child she carries and delivers.
The Justice Ministry wants to change this part of the law. "I've been thinking about changing the law since May. In the course of my career, I've met a number of clients interested in the issue," Minister for Justice Daniela Kovářová told Aktuálně.cz.
The Czech legal system permits surrogate motherhood but has no law dealing specifically with the issue.
The girl’s biological father had sought a surrogate mother because his own wife was infertile. Baby Donna was born in 2005 using his sperm. However instead of handing over the baby as agreed, the surrogate mother said she had miscarried and sold the baby to a Dutch couple in Leusden.
Since then, baby Donna has been the subject of a string of court cases in Belgium and the Netherlands. Last year, a court in Arnhem gave the man the right to visit his biological child but turned down his demand that the child be returned to him.
The Belgian couple, who live in Antwerp, have always regarded themselves as the child's real parents. They call her Valentina.
Don't forget that Surrogacy Lawyer, Theresa M. Erickson, is conducting an online seminar about Surrogacy and Egg Donation to air on September 23, 2009
For additional information on The Surrogacy & Egg Donation Seminar please contact Sabrina Scialpi at 858-748-4133 or visit
www.ericksonlaw.net/surrogacy_egg_donation_seminar.html
Surrogacy and Egg Donation Online Seminar Hosted by California Surrogacy Lawyer Theresa Erickson
Surrogacy Lawyer, Theresa M. Erickson, is conducting an online seminar about Surrogacy and Egg Donation to air on September 23, 2009. “We realized there is a need for information on the process of Surrogacy and Egg Donation. We also realize that with the current state of the economy, people just don’t have the funds or time it takes to travel to a conference, with that in mind we are holding an online seminar that anyone with a computer can attend,” states Theresa M. Erickson, Surrogacy Lawyer, CEO and founder of Conceptual Options.
This Surrogacy & Egg Donation Seminar is aimed at informing and educating those suffering from infertility on the possibilities that exist for family building. The topics to be discussed include explaining the process of third party assisted reproduction, as well as helping alleviate the uncertainty of the journey, such as medical insurance issues, obtaining birth certificates and passports, citizenship issues, and taking your baby home. Attendees will also receive a “goodie bag” for attending via mail after the seminar.
“During these times of uncertainty and with the recent media coverage of surrogacy and egg donation, we are certain that these informational seminars will help dispel some of the miss-information that is being dispensed by the uninformed. Assisted reproduction is a safe, legal and effective way for those who are unable to build their family through traditional methods,” states Surrogacy Lawyer Erickson.
We have combined our drawing for a Free Egg Donation Cycle with our recent conference in Genève, Switzerland. One lucky seminar attendee from these two events will be awarded a Free Egg Donation Cycle, which can also be used in conjunction with someone using a surrogate. “Dr. David Smotrich and La Jolla IVF have generously given their services for this Free Egg Donation cycle, while Conceptual Options is providing the egg donor and cycle coordination. The surrogacy and egg donation law firms of Myers & O’Hara and Erickson Law will be providing free legal representation for the egg donation cycle and Egg Donation Lawyer Theresa M. Erickson will be sponsoring all of the donor medications,” states Ms. Erickson.
The keynote speaker at this seminar will be Surrogacy lawyer Theresa M. Erickson. Ms Erickson is a globally recognized expert in this specialized area of law. Attorney Erickson is also involved in this community by volunteering her time for as a board member of the American Fertility Association and as the legal director of Parents Via Egg Donation, while sponsoring events that promote awareness in this field. She is also the author of Assisted Reproduction, the Complete Guide to Having a Baby with the Help of a Third Party. Her next book is currently being finalized for publication.
For additional information on The Surrogacy & Egg Donation Seminar please contact Sabrina Scialpi at 858-748-4133 or visit
www.ericksonlaw.net/surrogacy_egg_donation_seminar.html
Friday Legal Updates - Surrogacy Legal Battles, Federal Suit Blocking Embryos Research, & Sperm "Brokers"
Good Morning and TGIF to all! Hope you are well. Morning radio show starts in about an hour, so here are your Friday Legal Updates. They are mostly international stories with a federal law suit just filed also added. Enjoy!
United States - Federal Law Suit Filed to block federally funded human embryo reserach. "A group of plaintiffs filed a federal lawsuit today in the U.S. District Court for the District of Columbia to "enjoin and overturn the controversial guidelines for public funding of embryonic stem cell research that the National Institutes of Health issued on July 7, 2009," according to a press statement...."
It will be interesting to watch this suit play out. What are your thoughts on stem cell research?
UK - Two directors of a fertility company appeared in court yesterday accused of illegally delivering sperm to women by courier. They are to appear in court next month. This is a test case under the Human Fertilisation and Embryology Act of "procuring sperm". They face two years in jail.
Australia - A couple must battle the courts to adopt their own son. I blogged on this case already, but I wanted to repost as I really feel for this couple. Grandma carried her grandson for her daughter. Apparently, surrogacy law in NSW has not kept up with science.
Poland - A surrogate mother is fighting for custody of the child that she gave birth to for another couple from Warsaw. Polish law does not regulate surrogacy, and despite a written agreement, this looks like a battle for this couple with their gestational carrier.
Uruguay - Uruguay is one step closer to becoming the first country in Latin America to permit same-sex couples to adopt children. Uruguay had authorized same-sex civil unions last year.
New Zealand - Parents of surrogate born daughter battle to bring her home from Thailand. The couple is heartbroken as the little girl is the daughter of the Thai surrogate in New Zealand, but the couple are her parents in Thailand. The couple claims to sought legal advice, but this unfortunately looks like another issue with fertility tourism in certain countries.
Subscribe to my blog at: http://www.surrogacyeggdonorblog.com/subscribe.html
Fertility Tourism - Where Do You Go From Here?
Depending upon who you talk to - fertility tourism may or may not be a good thing? In my opinion, if you are working with a reputable clinic/company, it is a good thing. But, where do you find these clinics, and how do you truly know if they are reputable, success, etc. as it may be the clinic/company themselves posing as a patient on a forum? As I noted in an earlier blog piece, I was appalled (naively, I must admit) that this sort of unethical practice is going on here right in my own back yard.
Besides those forums, I think that Parents, Surrogates, and Donors must absolutely EDUCATE and INFORM themselves, instead of becoming another horror story. Not everyone has the funds to keep trying once things go badly.
In fact, I will be speaking on this on my radio show, Surrogacy Lawyer Radio on Blog Talk Radio this Friday on how to ask the right questions, get referrals (not just via the internet), and ask more questions.
In addition, my recent concern over fertility tourism outside of the US, where I am very familiar and aware of reputations, etc. is a blog post written by a woman with alot of information regarding India. Note, she did get her child from India via surrogacy, but she had alot of concerns, as did the comments from others. It is worth a read.
Mission: Family and the American Fertility Association
I know that there are many organizations out there giving patient education in the area of family building for singles and couples, including the LGBT community, surrogacy, IVF, egg donation and sperm donation, but I have to toot my horn for the American Fertility Association. And, I want you to help this organization by donating to our cause (I say our cause, as I must provide full disclosure that I am a board member) BUT by not donating any of your own money. Yes, you can help by donating Capital One's money - just sign up for a card, and they do the rest.
The benefits to The AFA are as follows:
1 - Capital One gives The AFA $25 for everyone who signs up for the card, upon the first use.
2 - Capital One gives The AFA 1% of all purchases on all AFA-branded cards.
It is easy to sign up:
https://www.cardlabconnect.com/AffinityPortal/visitorAction.do?affinityName=missionfamily
Now, that was easy!
Subscribe to my blog at: http://www.surrogacyeggdonorblog.com/subscribe.html
FRIDAY LEGAL UPDATE - The Donation of Gametes and the Donation of Kidneys - Where Do We Draw the Line?
After reading an interesting commentary posted on MSNBC involving a gentleman that claims to have sold his kidney for $20,000.00 to another man in New York who had no chance of living without it, I started thinking about how this story may or may not be used against egg and sperm donation solely on the basis of compensation (this is not meant to address any issues regarding medical procedures, duress, the rights of donor conceived children, etc. in this post - we will address that at another time).
It appears that this gentleman and the New York man concocted a story to cover what was truly happening so that the doctors would proceed with the donation. In fact, they claimed to be cousins and an intermediary was used.
Now, the paying for the donation of organs has been outlawed in the US for quite some time, while the UK has just set in place a new law banning of private organ transplants from dead donors to allay fears that prospective recipients can buy their way to the front of the line.
They even submitted a government-commissioned report that recommended that organs donated within the state-run National Health Service should stay within the public health system, even though very few Britons have private transplants. In fact, the new rules will mainly stop overseas patients from coming to Britain and paying privately for a transplant.
On the other hand, gamete donation for compensation has also been banned in several countries, such as Canada, for quite some time, but where do we draw line between what we can be compensated for and what not? What about participating in a research program for a new drug or therapy?
Now, let’s get back to this gentleman from Israel, who believes that he has done something great and earned money along the way. And, he does have two kidneys, doesn’t he? (Personally, I would like to keep both of mine as a back-up, but that is just me.) Does he have the right to sell something that he can function without?
I did submit my vote in an online poll (I will not divulge my answer), and this is the current standing as of now:
1. Yes, absolutely. It's dangerous and unfair to go outside the approved system for organ donation – 20.3%.
2. No. I think people who need an organ should be able to pursue all options – 70.8%.
3. I don't know. It's a complex topic – 8.9%.
This topic, although dealing with organs versus gametes and the process in which they are obtained, is certainly going to continue to be debated; however, I want to know what you think? Where do we draw the law on what can be compensated for and what cannot be compensated for? And, why do we care? I do not have the answer; I am just asking the questions. Let me know what you think?
Subscribe to my blog here
UPDATE - Whew...Woman "Pregnant" with 12 Babies is NOT true!
I don’t think that I ever hoped that someone was NOT pregnant, but this case certainly was one. And, now she has been exposed as a “fraud” – thank goodness for those “babies.” Apparently, officials in Tunsania interviewed her – they found her not to be pregnant. They also think that she has some psychological issues, as she is likely not even pregnant with one baby. I will not even get into the issue of psychology in this post, as the officials were more focused on the fraud then on the fact that this woman may have fertility problems. (Side note: I hope that they get her some psychological help if needed) First, what surprised me was that her husband had been quoted in the last article – interesting, as he should know that she is pregnant or not, or so I would hope. This fact points more to fraud as they were likely trying to cash in on a story. Secondly, I was surprised that Dr. Manny Alvarez from Fox News stated that any pregnancy over five babies is “high risk.” "When you get to a pregnancy with that many multiples, often some of them spontaneously die," Alvarez said. "Anything more than five babies becomes a very high-risk pregnancy. The rates of premature labor for multiples are astronomical." Fox News, please do not pass that sort of information around, as I am certain that many, if not all, doctors would disagree with that number, which appears to be awfully high. We certainly do not want to be informing people that up to five babies is okay, especially after the “Octomom.” Again, I am not a doctor of any type, but I am certain they would all agree with me. As I included in my comment of Monday from Dr. David Kreiner (FACOGI), I wanted to remind everyone the following from him: “I site the SART recommendations on the number of embryos transferred and my endorsement of making this a regulation. I talk about the benefits of IVF where one can control the number of embryos transferred compared to IUI where as many eggs as you make can fertilize and implant. I am sure you know that 99% of REIs were absolutely against that 6 embryos were transferred into one woman. Perhaps this Tunisian pregnancy of a dozen implanted embryos should teach us that it is cheaper for insurance companies, the government and society to support IVF treatment rather than put people in a position where they feel compelled to play roulette with their lives by doing gonadotropins and IUIs rather than IVF.”
Well, thankfully for all involved, this story was untrue!
Cheaper by the Dozen? Pregnant with 12 Babies? Come On, Didn't the "Octomom" Teach Them Anything?
All I can say this morning, is come on, people! Thank goodness this is not in the US....did the "Octomom" not teach everyone a good lesson.
So, for those of you who have not heard, a woman in Gafsa, Tunisia is apparently pregnant with 12 babies. No one is certain how the 12 were conceived, but Dr. Dr. Mark Hamilton, of the British Fertility Society thinks that "the woman could have been receiving ovulation induction treatment, which stimulates egg production. You don't have the same control as with IVF." But, again, there is a responsibility on behalf of the clinic when the follicle count is that high. Don't you think? Or, am I way off base?
The teacher, who has not yet been named, is expecting six boys and six girls, according to reports. She conceived the babies following fertility treatments, after suffering a number of miscarriages. Fertility experts confirmed the extraordinary pregnancy was possible, but carried "colossal" risks - Really? We did not know that.
Sorry for being cynical, but I certainly hope that this is not some hope for a reality show.
According to Fox News and Dr. Manny Alvarez, managing health editor of FOXNews.com, he has said it is possible for someone to be pregnant with 12 babies, and he has in fact seen a woman pregnant with nine babies. However, the likelihood of this woman carrying all 12 babies to term is very slim.
"When you get to a pregnancy with that many multiples, often some of them spontaneously die," Alvarez said. "Anything more than five babies becomes a very high-risk pregnancy."
If the woman does succeed in carrying a majority of the babies to term, Alvarez said she will need constant monitoring, and will more than likely need to be hospitilized.
"The rates of premature labor for multiples are astronomical," he added."
Nadya Suleman of Bellflower, Calif., currently holds the record for the longest-living octuplets in history.
Does Theresa Erickson Eat Cupcakes?
You bet I do.....but, just when they involve educating those who are desperate and vulnerable and need some guidance.
In conjunction with the American Fertility Association, I will be hosting a "Dessert & Learn." Please join us in beautiful La Jolla, California.
by Corey Whelan
Have you met her? One of the most knowledgeable and compassionate attorneys in this field; plus she has the most astonishing savvy. A true thoroughbred, inside and out. I’m proud that Theresa sits on The AFA’s board of directors and am grateful for the wisdom she has brought to these blog pages.
The AFA is big on creating soft spaces for people to learn in. Why shouldn’t life have some sweetness, even when you are struggling to create your family? So when Theresa came to us and said she wanted to reach out to the people of La Jolla who are interested in third party reproduction, we knew we had to find the right place for folks to get to know her, and benefit from what she has to bring to the table, especially if that table features a dessert buffet.
Enter CUPS. CUPS is a brand new, organic bakery that specializes in? You guessed it. Cupcakes. Exotic, amazing, silly, frivolous, and organic baked creations, guaranteed to shift your reality from oy to yum.
Perfect.
Except for one tiny detail. CUPS is so new, they are not even open yet. But Michelle, CUPS owner and an attorney in her own right, believes so strongly in The AFA’s mission that she is lending us her gracious and magnificent estate for this season’s premier Dessert & Learn event.
So…..please join us poolside at Rancho La Jolla. We will be having an intimate and relaxed chat with Theresa about ovum donation, surrogacy, and everything third party repro.
I’ll save you a bite.
For more info on our upcoming Dessert & Learn, click here.
For info on Erickson Law, click here.
For info on CUPS Organic Bakery, click here.
Friday Legal Updates - California Bill, Chicago Scammer, Ohio (oh, my), Michigan & embryos, DC & same sex couples, & International Issues
Hello! I am back after a two week hiatus on my Friday Legal Updates, but it is summer so the wheels of justice turn slowly, as does legislation. Either way, here are today's updates for the last few weeks:
California - The California Legislature is getting back into the Prop 8 fight with a bill that would recognize those same-sex marriages performed legally outside of California before the measure had passed. SB54 also intends to ensure that gay and lesbian couples who have been married legally in other states and countries since November 5th when Prop 8 became official can receive all the rights and obligations that opposite sex Californian couples enjoy.
Illinois - More couples are coming out of the woodwork regarding a surrogate who had scammed them into believing that she was pregnant with their baby. Beware!
Ohio - A Republican lawmaker in Ohio is re-introducing a bill that would give a man the final choice on whether the woman he got pregnant can have an abortion. I am so "impressed" that a man can force a woman to keep the baby, but the bill mentions nothing about forcing him to be a good father or provide financial stability.
DC - A new DC law is making it alot easier for a newborn to have two moms at birth. Lesbians who create a child via artificial insemination will no longer have to adopt their children that have been born to their partners. A similar law is to go into effect in New Mexico in 2010. This is a huge step for same sex couples, as they do not have to go through the time consuming and expensive legal process that is not required of heterosexual couples who use artificial insemination.
Croatia - Croatia continues to tighten their laws on fertility treatments by forbiding the freezing of embryos. It also limits the number of embryos used to three and for unmarried couples, they must prove that they have been together for at least three years.
Romania - 30 Israelis were detained in an egg trafficking case. It sounds like the issue is on its way to being resolved from more recent reports; however, I certainly hope that this is not an issue of human trafficking.
Justice Sotomayor - How Will Her Confirmation Affect Those Suffering from Infertility?
As was posted today on the AFA website, I wanted to provide you something interesting to read today on the Supreme Court Nominee:
While watching the confirmation hearings last week (yes, I am one of those dorky lawyers), I was listening for any cues regarding how she may address a case that involved fertility treatments, fertility coverage, pregnancy discrimination (including pre-pregnancy for IVF treatments) and, of course, a woman’s right to chose, including the right to privacy involving medical treatments. Now, mind you, I understand regulation may be needed in some areas of this industry, but I also do not want to see the government restricting our ability to create a family, regardless of marital status, age, or sexual orientation. Again, these are issues that must be determined between a physician and their patient when he or she is accessing the health risks for the woman carrying the children, as well as any harm that may come to the future children in terms of prenatal health.
I did discover, despite her attempts otherwise, that she appeared to hold a liberal point of view in many ways, which despite my own leanings, is important when it comes to autonomy for those patients and those involved in this industry. However, regardless of her political stance, what is important is that she applies the law neutrally with a perspective of her life experience. I know that many do not agree with that statement, but we all must agree that it is not humanly possible to take one’s own life experiences out of the picture when making decisions. What we do want is for judges to use that experience, while simultaneously utilizing an objective vision when making decisions that will affect us all, as well as future generations.
Of course, much of what we do and what our clients/patients deal with is family law. Judge Sotomayor has little experience in that area due to her previous posts as a federal judge, as most Supreme Court judges. Even the Supreme Court itself has little experience in that area. The most notable family law case is the case of Troxel v. Granville in which the Supreme Court did strike down a trial court judge’s decision to allow grandparent visitation involving a completely fit mother. They were concerned that the judge had used his personal experience in making the decision since he stated he truly enjoyed his time with his grandparents as a child. But, as I stated above, personal experiences do shape our lives and how we shape our decisions; however, in this case, the Court did not state that the judge did anything wrong in doing so, it was merely that it was a case with a backdrop of a fit mother. Different set of facts could have created a different ruling.
Now, with that in mind, Justice Sotomayor is a woman – she has no children, and she has been battling diabetes since the age of 8. Does that make her more sympathetic to our plight or not? I am not certain, as we do not know why she does not have children or if it was a path she chose. But, we do know that she knows what it is like to battle a disease that controls your life, which should be good for those of us in the community.
Remarkably, after reviewing her previous decisions, I was unable to locate much information on how she would rule if any such case comes before her. In fact, she has not dealt with stem cell research regulation of Assisted Reproductive Technologies, healthcare choices, or on-point abortion cases; however, there are a few notable cases that she has dealt with as a judge:
1. Saks v. Franklin Covey Co (316 F.3d 337 (2d Cir. 2003)) – This is a bioethical issues case in which she joined a Second Circuit opinion rejecting a claim that exclusion from coverage of surgical impregnation procedures, including in vitro fertilization, violated Title VII and the “Pregnancy Discrimination” Act. Note that this does not assume that she is against IVF, only that she did not judge that that particular case was within the parameters of the Pregnancy Discrimination Act, which is her duty as a judge – to interpret law, not make laws. For changes like this to be made, we need to address our Congress to have them amend these laws as they currently stand.
2. Center for Reproductive Law and Policy v. Bush (304 F.3d 183 (2d Cir. 2002)) – Judge Sotomayor found that a “reproductive rights” group had standing to challenge the Mexico City Policy. She concluded that the group had “competitive advocate standing,” on the grounds that the government’s allocation of a benefit “creates an unequal playing field” for organizations advocating their views in the public arena. She agreed that the government had a rational basis for favoring “the anti-abortion position over the pro-choice position” with public funds. Again, as the above case, since this case is not on point, we truly do not know how she would rule regarding the right to life, the right to abortion, status of embryos, etc.
Ultimately, based on her performance at the hearings and her record, and despite a few bumps in the road involving the case of the firefighters, it does appear that she will be confirmed prior to the start of the next Supreme Court session. And, of course, I am truly excited, as a woman, as a lawyer, and as a member of the US Supreme Court Bar, that there is another woman on the bench. Call me sexist, call me whatever you want, but we need diversity on the bench so that those who have never “walked in our shoes” can see the perspective, albeit objectively, when our cases come before them.
Who is Entitled to Becoming a Parent? Does Age, Marital Status or Sexual Orientation Matter?
I have been pondering all of the recent media attention regarding acccess to IVF and age, remember the "World's Oldest Mom," and Michael Jackson's children created via IVF and surrogacy (and possibly egg donor and/or sperm donor). Again, I am surprised by the number of people who want to restrict access to IVF, or more importantly access to having a family. They want age limits, marital status limits, as well as sexual orientation limitations.
Now, for those of us who have families, we may or may not have walked in the shoes of those that cannot have children on their own without the help of medical intervention or adoption. But, I will tell you that I am not any more entitled to having my children than Michael Jackson or even Maria del Carmen Brousada. Why, you may ask? Because having a family is something that is inate in all of us - albeit some stronger than others. And, when I have stated in the past that it is a biological imperative, I do not mean the need to pass on genes - I mean the inate human desire deep in our DNA to have a family - to be a part of something bigger than ourselves.
With that in mind, why should gays and lesbians be restricted to having children via IVF or adoption? In fact, a study recently out of Tufts University School of Medicine stated that they found "overwhelming" that these children of same sex couples do as well as those children of heterosexual parents.
Now, back to the age issue, do I think that this woman had a right to treatment? Yes, I do; but, I also think that her age placed her and her children into harm’s way as far as their health during the pregnancy was concerned. And, should are worry carry over into being concerned for their health and livelihood after her death? Well, I did not know Maria, nor do I know if she provided for them financially after her death or if she provided them with guardians who will love and take care of them as if they were their own. But, this is an issue again that all parents must deal with one way or another regardless of age - her risk factors were just higher.
As for Michael Jackson, we are learning so much more about the life that he too created with these children whom he dearly loved and wanted to protect from the media spotlight. Let's take out all of the allegations of child molestation for a minute and only address those children. Should he have children because he wants them or because he can afford them? Or, should he be able to have children so long as the allegations were not proven?
Oh, and by the way, all of those pundits out there claiming he is not the father since he did not adopt them - you are way off base. Adoptive and foster parents also do not need to worry since surrogacy, egg donation, and sperm donation is a different area of law, specifically here in California. Whether he used sperm donors, egg donors and/or surrogates, he is the father of these children, with Debbie Rowe being the only possible outsider with a chance at custody. And, despite reports she did not make Michael the adoptive father by signing away her rights - and no need for an adoption.
Ultimately, as a country, we do need to take all of this into consideration, but we also need to allow doctors and their patients to make the best decisions for their family, their bodies, and, most of all - the children that we are creating.
What are your thoughts on today's ponderings?
Friday Legal Updates - Fertilty & Insurance, Kansas Agency, Baby Scammer, Embryo Dispute, Custody Battle, NY Stalls Same Sex Bill & Adoption Agency Bankruptcy
Yes! It is finally Friday, and I am ready for the weekend. Remember, it is less than two weeks to our conference in Switzerland. Alot of updates this week, so enjoy....
1. California - The District Court of Appeal has thrown out an appeal by a woman struggling to conceive a chiled via IVF. She was challenging the limited coverage provided for fertility treatment by her employer's group health care plan. InYeager v. Blue Cross of California, she alleged causes of action for unfair competition and false advertising. Although the employer chose not to offer $2000.00 of infertility coverage, Yeager went after Blue Cross for these above reasons, including stating that the $2000.00 offered by BC does not constitute coverage under the statute.
2. Kansas - Clients say that a surrogacy agency in Kansas has kept their money. "The owner of the agency, Michelle Faulkenberry, stopped returning calls from Winters and the couple, and stopped reimbursing Winters for her expenses, Winters said.
Court documents, interviews with clients and surrogates and an affidavit by a Wichita Police Department detective show complaints dating to 2001 that Faulkenberry dipped into clients' escrow accounts -- money meant to cover medical bills and other expenses -- for her own use. Faulkenberry declined to comment for this story. Her agency, Alternative Family Building, was the second surrogate agency that Faulkenberry had started and closed, court records show.Unlike 29 other states that have some laws regarding surrogacy -- most of which void paid contracts -- Kansas does not regulate such agencies."
In fact, the article continues with this: "Looking back, Mike said there were signs that Alternative Family Building might not have been as legitimate as some other agencies. For one, he said, Alternative Family Building's fees were much lower. "The fees were low enough that I figured it was worth the risk," he said.
3. Chicago, IL - Day in court for accused baby dreams scammer - A 31-year-old Chicago woman is accused of using the Internet to take advantage of desperate people.
WBBM's Steve Miller has the story of that woman - and the people who believe she should be put away forever.
Her name is Teandrea Watson, and she has billed herself as a surrogate mother. A beauty pageant queen. A graphic designer. Others say Watson robbed them of their dreams - after she signed a contract to be a surrogate mother.
Teandrea Watson appears in court today, accused of cheating that man from Maryland, and his wife, out of money - and a baby they so desperately wanted.
4. Ohio - Embryo Dispute detailed in Lawsuit - Lori Johnson was excited about trying to have her third child and ecstatic that Montgomery's Bonnie Bernard would help.
Bernard operates a company called Embryos Alive out of her Pfeiffer Road home that links embryo donors with people like Johnson, an infertile Texas wife. "It seemed like one of those things that was too good to be true," Johnson said. Initially impressed by Embryos Alive, Johnson eventually came to feel she was bullied by a "callous" Bernard.
A lawsuit filed by Johnson in Hamilton County - against Embryos Alive, Bonnie Bernard, her husband, Gary Bernard, and another relative, Scott Hasselring - accuses Bernard of turning on Johnson after she challenged what she considered improper procedures by the company.
"I felt taken advantage of," Johnson said. "People who suffer from infertility have a painful and costly journey. To have someone give you hope and then take your money in exchange for that hope ... is definitely salt in the wounds." Johnson alleges Bernard and Embryos Alive defamed her with false postings on the Embryos Alive online support group board, breach of contract and consumers sales laws, fraud and misrepresentation.
5. Florida - Two Gay Couples Fight over Custody of Child - "Two dads face off against two moms. It's perhaps the most unique custody battle in recent Florida history and maybe the most radical verdict. Katherine and her eight-year partner, Ana Sobrino, decided to have a baby about a half-decade ago. Again and again, they tried using sperm from anonymous donors. But Katherine — a driven real estate agent then in her late 30s — couldn't get pregnant.
Enter their close friend, Ray, a handsome, gay Air Force veteran.
After some casual negotiation, he donated and Katherine conceived. In August 2006, a sweet and burbling baby whom we'll call Austin was born. Katherine put Ray's name on the birth certificate because she wanted the child to know his dad's identity - That turns out to be a big mistake.
The baby was raised mostly by Katherine and Ana at their NE 24th Street home, but Ray and his partner Craig also spent time with the boy. "[Ray] made it clear he wanted to be involved in the child's life," a counselor later wrote. He took Austin to baby music lessons. Sometimes the child would sleep over at his "da-da's" apartment overlooking a canal. Then, last fall, the mothers decided to move to California, and things got ugly.
Ray sued Katherine in November 2008. The case tells the story of two sets of gay parents — all of them loving and active in the child's life — vying for custody. "Responsibility for the child should be awarded to the mother and father equally," Ray demanded in the suit. "[I am] the natural father."
After considering arguments from both sides, Miami-Dade Circuit Court Judge Leon Firtel on June 3 found Ray was nothing more than a sperm donor. Because there was no contract before birth, he had "no rights." Says Ray's attorney, "[The ruling] is the most tragic of my career, and I will not rest until Ray is reunited with his son."
Opposing council responds that Ray surrendered his role when he let the mothers become primary caregivers: "Ray has changed his mind about his parental role... Katherine and Ana feel like their family unit is being attacked." A motion for reconsideration is scheduled in circuit court this week.
6. New York - Gov. Paterson will delay his plan to force a vote on a bill to legalize same-sex marriage until early September because the Senate is too unsettled now to take it up, his spokesman said on Friday.
“Governor Paterson believes that marriage equality is an important civil rights issue and will be working with Senate leaders to move the process forward,” said the spokesman, Peter E. Kauffmann, adding that the governor was more immediately focused on the state’s dwindling tax revenues. Mr. Kauffmann said the governor would probably call a special legislative session in early September so lawmakers could close an anticipated hole in the state’s budget.
7. Canada - Adoption Agency's Bankruptcy strands families - An Ontario agency specializing in adoptions from Africa has gone bankrupt, leaving scores of families across Canada disappointed and in financial debt. Kids Link, which operates as the Imagine adoption agency in Cambridge, put up a bankruptcy notice on their website on Monday to inform their roster of more than 200 clients of their financial difficulties.
An official with the Waterloo Regional Police fraud department told ctvtoronto.ca that he has received many calls from clients of the agency who are worried that their money was stolen."I can tell you it's not a criminal investigation," said Sgt. Robert Zensner. "We are not investigating anyone in the company or anyone linked to the agency." He said that could change once BDO completes their review of the agency's books. "If they find any criminality than they would contact us but we have to wait for their review," he said. "At this point, we're hands off."
That's it! Have a great weekend.
Top Ten Questions to Ask Before Signing Up with an IVF Clinic, Law Office, or Agency as a Surrogate
As I was reviewing some incoming emails this week, I received one from a woman who could not decide how to move forward in becoming a surrogate. First, she went on the internet, then she went onto Craigslist, where she found several ads declaring why they were the best. So, in order to help her and others looking into becoming a surrogate, here are ten things you need to think about first:
1. Contact a Reproductive Lawyer or IVF Clinic for recommendations - the lawyers and the doctors are the licensed professionals in this field, as are the psychologists, and they can often give good advice on where to begin your journey. You might also find a lawyer you want to work with when it becomes time to sign and review agreements with Intended Parents.
2. What if the lawyer or clinic has their own agency for matching surrogates with parents? Well, I myself own an agency, so I can speak clearly to the potential conflicts of interest that can arise between you and the agency or the clinic; however, here are a few things to remember:
a. Doctors and lawyers are licensed professionals who have licenses that they have worked hard to obtain and maintain. At least in my office, surrogates always get their own attorneys, their own psychologist, and their own support separate from me. But remember, doctors are not lawyers just as lawyers are not doctors - it is that simple.
b. If an IVF physician has an agency, how is their money held for their surrogates? It is unlikely that they are licensed and bonded escrow holders, and they are not attorneys whose clients are protected by the state bar's client security fund, so ask that question. Physicians do not have the same protections as the attorney's trust account does.
c. With an IVF Physician, what happens at 12 weeks when you are released to your OB physician? Do they have the staff to do that, and who is that? How does the clinic still handle and facilitate your arrangement, if at all? Make sure you are being supported all the way to the end, not just until the pregnancy reaches the first trimester.
d. Now, as for your health and physical well being, the other issue that some have is the conflict of interest that a doctor has with his patient, the surrogate, and his patient, the Intended Parents. Again, as it has to do with your health and well-being, make certain that you get independent legal representation and ask questions. It is your body and your health, so you must be diligent in making certain that you are being protected too. Many, many IVF Physicians are wonderful, caring doctors, but you must ask questions to ensure you are being protected. Also, ask what their success rates are and how long they have been practicing IVF?
3. Agencies - yes, they are unregulated, unlicensed, etc. - but, speak with them too - better yet, meet with them in their office and meet the staff. Some are very reputable. Ask a reproductive lawyer or IVF clinic for recommendations. Then, call and interview them. Ask them the following:
a. Are they a match making service only, or do they provide support throughout the entire process through delivery and beyond?
b. How are their surrogates and donors funds held? Make certain that they are held by an escrow company or by an attorney.
c. What type of support do they provide? Get specifics. What type of staff do they have and how many people are there for you in the office?
d. Do they have parents waiting? If not, how long will you have to wait? Remember, promises of being matched immediately are empty, as each case if different. Also, ask how many matches they do per year and per month.
e. How long have they been in business? Can you speak with other surrogates?
f. Agencies are not medical providers, but the reputable ones know what they are doing and are instrumental in helping you select a physician, psychologist, etc., as well as helping you get answers when the medical aspect is unclear. Don't think that you will be left with inadequate medical care if you go through an agency.
g. Reputable agencies are insured against Errors & Omissions Insurance. Ask if they carry it.
h. Does the agency have surrogate support group meetings and/or annual parties? These are always alot of fun, and there are usually prizes for the winners of contests. This is also a great way to meet other women like yourself who are going through many of the same things.
4. Beware of agencies, clinics or law offices that claim that they work with high profile clients and celebrities. Remember, if that were really the case, you would not know about it - that is not information one should or would want to share if that is the case. No one wants what Sarah Jessica Parker's surrogate went through. And, don't be drawn in by the expectation of working with a celebrity.
5. Who is going to be there 24 hours a day to answer questions or take my call in the case of an emergency? Not just during the first trimester, but throughout the entire pregnancy and at the end. Ask if there is anyone that does that in the office of the agency, lawyer, or doctor. This is very important.
6. Although there are many things that you need to do yourself, such as deal with your insurance or make doctor appointments, as you are the patient, is there going to be someone there to help you navigate this new and unknown journey.
7. Is the clinic, agency or law office going to screen your intended parents? Do your intended parents get a background check and a psychological education session to make certain we are a good match?
8. Is the agency, law office or clinic going to support me when I need it the most? For example, my intended parents don't pay a medical bill? Will they support me in getting this resolved? Will they help me write letters or handle it legally? Remember, the agreement is between you and your intended parents, but you will need support. What a good clinic, agency or law office will do is provide you with support throughout the entire pregnancy, even if you think you may not need it. In fact, they should be acting as a neutral third party for any uncomfortable situations that may arise with your intended parents so that the situation can be resolved without any bad feelings between the parties. They should also have the professional experience (not just that I am a doctor, lawyer or I have been a surrogate once before) to know of the possible issues that can arise and how they can be resolved with the least amount of drama.
9. Does the clinic or agency or law office provide a blanket agreement (one that they have prepared and given to you and your intended parents ) with no counsel? If so, be careful. A contract should be drafted by an attorney for the intended parents that is drafted specifically for your case. You should then review with an independent attorney to ensure that is covers your particular situation.
10. Last important point is that is in no way an exhaustive list. Use your head and use your gut before agreeing to anything. Making a list of pros and cons is also helpful before you select the clinic, agency or law office that you are going to work with. Good luck.
Friday Legal Updates - Surrogate Children, Georgia Embryo Law, IVF Treatments, Foreign Adoptions, & Embryo Mix-Ups
Hello and TGIF! Sorry I missed you last week, but I was away relaxing on vacation in Hawaii. We have quite a few updates today, so please comment on those that are interesting or those that make you want to respond. Happy Friday!
California/Texas - Court Tosses Claim by Children Born to a Surrogate - The District Court of Appeal yesterday threw out the claims of 15 year old twins born to a surrogate mother against the Texas estate of their biological father asserting breach of the surrogacy agreement due to the father's failure to support them as time barred. The actual story sounds like a scene from the show "Dallas," so be sure to read the link above.
Georgia - The new law allowing families to adopt embryos is now in effect in Georgia. The law aims to prevent embryo donors from later asserting legal rights to children born from embryo adoption. Personally, I think that this will make embryo donation more costly, but we shall see.
Federal - A Federal Appeals Court has ruled that a woman cannot be fired for absenteeism related to fertility treatments. The US Court of Appeals for the Seventh Circuit ruled that Title VII does prohibit an employer from doing so. A trial is still pending so we will have to see what happens as this case progresses.
Federal - Congress is introducing a bi-partisan bill, entitled FACE Act (S. 1359), which intends to eliminate many of the hurdles internationally adopted children of American citizens currently face before they can come home to the US, which is often a lengthy and expensive process.
UK - Chairman of British Fertility Society warns that IVF mix-ups "will continue." In fact, he is not certain if the new systems being put into place will help, as human error is always a possibility. He did not that the number of mix-ups were small; however, he needs to think more of those that it has affected versus the number. Don't you think?
Surrogacy Law Radio Show Link & Information
Today I did a great interview with Creating A Family that has alot of information on Surrogacy for everyone. The host, Dawn Davenport, asked great questions, and I think that you will learn alot. Click Here for the entire show from today, July 8, 2009.
This is also a reminder that I will be hosting my own show tomorrow at 8:30 PST on surrogacy, egg donation, and maybe more on Michael Jackson and California Law. Please feel free to call in or email me with any questions ahead of time. Click Here for Show Information.
Click Here to subscribe to my blog.
Friday Legal Updates - Donor Offspring, IVF Blunder in UK, Michigan Embryo Legislation & More
Well, another week has come and gone, but for those of us who are Americans, next week is the 4th of July, which means family celebrations for most. Today, I want to tell those who are still longing for a family of their own that there is hope. Be patient, get educated, and hang in there.
Now, onto the updates:
Iowa - Dead Iowan Father's Child - will his daughter receive survivor benefits. In a case similar to the one that I addressed here in California last week on my blog, her mother is trying to fight for Social Security Survivor Benefits for Byrnn, now 6, conceived through IVF two years after her father died. Again, this result is based on 150 year old Iowa law, as in the California and Arizona case, but her mother is challenging the decision - and she intends to take it all the way to the US Supreme Court.
My take on this - make certain estate planning documents are in order for the future use of your genetic material, although it would not have made a difference in this particular case.
Michigan - Michigan Lawmakers Prepare Bills to Monitor the activities surrounding the donation and destruction of embryos. The one bill in particular is called the Embryo Research and Fertility Clinic Transparency Act (Senate Bills 647-652)
New York - Fertility Authority has received investments totalling $500,000.00.
"7.3 Million Americans struggle with fertility issues and are looking for quality information and support that only www.fertilityauthority.com provides. The $4 Billion fertility industry is without a "go-to" source for accurate and up-to-the minute content. FertilityAuthority.com was launched on February 25, 2009 and has not looked back. CEO Gina Bartasi says, "Our goal has always been to provide the best fertility content on the web, and users are recognizing the quality of our site. Investors have witnessed our early success and want to be a part of our future growth."
The funds will be used to enhance the site's technology, boost revenue capabilities, generate additional content and continue to aggressively build traffic. Bartasi has not ruled out an institutional raise adding "Our clients are asking us for custom websites, online appointment booking software, expanded video content and additional technological innovation that will help their businesses grow. Our focus is to serve their needs and exceed their expectations". New clients that have already put their confidence in FertilityAuthority.com include several prominent regional fertility centers as well as specialty pharmaceutical firms Columbia Laboratories and Ferring Pharmaceuticals. "
United Kingdom - Why Am I Dark, Daddy? Another IVF blunder in the UK haunts another family.
"When ten-year-old Michael Williams climbs into his father Keith's arms for a goodnight cuddle, he will often ask the same dreaded question: 'Why am I brown?' Looking up into his father's blue eyes and taking in his light brown hair and fair skin, his son will then ask: 'How can I make myself lighter, like you?'
Keith doesn't know how to answer these questions, so he'll make a joke about how Michael was delivered by a stork or that he was found under a gooseberry bush. Anything to avoid having to tell him the truth.
For the reality is that not only was Michael conceived via IVF using donor sperm, but there was a terrible mix-up when the wrong sperm was mistakenly used by the hospital fertility clinic the couple attended in their hope of becoming parents. "
Canada - Canadian Donor Offspring has created an initiative in response to the lawsuit filed by Olivia Pratten back in October of 2008. The site is an attempt to fundraise on her behalf, as well as others in her situation. The site is located here. What are your thoughts on this issue?
Subscribe to my blog here.
Egg Donor Anonymity & Privacy & the Reality of the Google World
I spent the evening last night finally spending some time reviewing some fertility blogs and websites. I was actually surprised by some of the "promises" that were being made to egg donors in relation to their donation of their eggs to recipient parents. In fact, some claim that the information is shredded once a donation is over and/or their information is not released to other agencies or clinics. I am not really certain how that protects the privacy of the donors in all situations.
I think it is important that those in this industry make certain that we advise egg donors that we cannot ever completely guarantee privacy and anonymity. Yes, the clinics follow the HIPPA rules for the most part, and my office falls under attorney-client privilege rules; however, no one can absolutely be guarantee any privacy.
Why, you may ask? Because when an egg donor fills out her profile, she wants to make certain that some of her accomplishments, etc. are highlighted. By doing so, she makes herself searchable via Google or now Bing. Even when a donor places limited information on her profile, the advent of Facebook, Twitter, My Space, and Google make it very hard for any of us to stay hidden for long.
Well, with this in mind, what is my advice? Just be prudent with your information and understand that you can be found - BUT, and this is a big BUT, is unlikely to happen in the near future. Specifically, it is unlikely that the Intended Parents will try and locate you, although it is always a possibility.
Now, what about the resulting child? What if their parent shares the information with them as they get older to satisfy their curiosity or they find the profile in a safe? Disclosure is becoming more common, as we all know in this industry, and donors need to be aware that this can occur.
Should you as a donor be concerned? Well, I can tell you from personal experience that it is not such a bad thing. I was located, and I am fine with it, as the family did not expect anything from me, except that they were happy that I am there if there is a medical need. No relationship beyond that, and I have no legal responsibility to these children. But, as a donor, I do believe that I have a personal ethical responsibility to be available for information in the future. I am not afraid of the choices that I made, even though I was not advised of this when I donated, although this was in the advent of this entire industry.
In summary, the purpose of this article is not meant to scare away egg donors, as they are desperately needed by families who cannot have families without them; but as a donor, be aware, be prepared and go into this with your eyes wide open to the future. Educate yourself and know what you are agreeing to while knowing the wonderful gift that you are providing a family.
Subscribe to my blog at: http://www.surrogacyeggdonorblog.com/subscribe.html
Friday Legal Updates - Sperm Donation & Conference Reminder
Well, it is Friday again - TGIF to everyone. Not alot on the legal front this week, despite the continuous chatter about the IVF blunders over in the UK, as I commented on this week in my blog entitled Embryo Mix-Up, Resulting Abortion, and Adequate Justice?. But, I do not want to beat a dead horse, so today's singular topic is sperm donation.
California - The Ninth Circuit has determined that posthumous conception DOES NOT entitle one to survivor benefits. In a case involving a 10 year old girl, her mother was trying to get Social Security Survivor Benefits for the girl who was conceived via sperm extracted from her just deceased husband in 1995.
"The 9th Circuit Court of Appeals ruled Wednesday the child, Brandalynn Vernoff, was not dependent on her father at the time of his death. In California, dependency is determined by the parent-child relationship rather than the marital status of the parents, according to the decision."
Further, the article stated, "
James Raetz, one of Gabriela Vernoff’s attorneys, said California has a system set up to protect sperm bank donors, and this case is an unintended consequence of the law.
Bruce Vernoff’s sperm was removed after his death, and there was no evidence of plans for a birth after the father’s death, according to court documents.
“That’s the big distinction,” Raetz said. “The court really hung on that.”
However, Raetz said, the couple did have plans for a baby.
“No matter what, she’s a single mom trying to raise her daughter,” he said."
Interestingly, I did not in another blog on this issue, that in Arizona the result may have been different.
"In California, dependency is determined by the parent-child relationship rather than the marital status of the parents, according to the decision."
"While her appeal was pending, the Ninth Circuit decided Gillett-Netting v. Barnhart, 371 F.3d 593 (9th Cir. 2004), which held that a set of posthumously-conceived twins were the deemed dependents of their biological father and entitled to survivor benefits.
The administration subsequently issued an “acquiescence ruling” to the decision, noting that in the Ninth Circuit a child must be biologically related to the insured and the insured's child under applicable state law to be a deemed dependent.
Writing for the appellate court yesterday, Senior Judge Cynthia Holcomb Hall explained that Gillett-Netting was based on Arizona state law, which recognizes "[e]very child [as] the legitimate child of its natural parents," but that California law does not equate natural parent status with biological parenthood."
"So, Gabriela tried to invoke "equal protection". After all, Bandalynn would have "rights" in Arizona she doesn't have in California, and other children in California get survivor benefits, but the court didn't go for it. "
What are your thoughts on this one?
Also, don't forget about registering for our conference - Erickson Law and Conceptual Options, a Center for Surrogacy & Egg Donation Announces European Conference on Surrogacy & Egg Donation at http://www.surrogacy-eggdonation.com/geneve.convention.html
The American Fertility Association & The Frozen Embryo Dilemma
With so much in the press these days about donor anonymity and how to handle that in the future, I wanted to post an article from the AFA that also talks about how to deal with the future issues in ART. Enjoy, and let me know your thoughts!
"A Matter of Privacy, Responsibility and Choice
It’s a private issue gone very public. It’s a complex web of personal philosophy, religious orientation and social conscience about which everybody, and we mean everybody, has a strong opinion. But the fact is, and should be, what you do with the frozen embryos you don’t use is your decision and yours alone.
Of course it never feels like the quite right time to discuss this touchy topic.
Maybe you’re taking your first steps on the infertility treatment path. Along with all the mind-numbingly complicated instructions, you’re handed a form asking you what to do with excess embryos before you have a single one.
Maybe you already beat the odds. With absolute devotion, you danced the assisted reproduction tango, created viable embryos and made a baby. Or two or three. Your family is complete. Your head is bursting with school, soccer, recitals and bedtimes. Frozen embryos?
Or maybe you’ve given up on treatment, leaving behind the heartbreak, the disappointment and possibly, a few fertilized eggs. You’ve moved on.
So chances are pretty good that those embryos, protected in liquid nitrogen, aren’t at the top of your to-do list. None of us who have experienced infertility anticipates having any embryos, let alone extras. After we’re done with ART, we tend to ignore or deny the delicate question of disposition of the unexpected surplus.
At some point, though, all of us with cryopreserved embryos will have to make a final and forever decision about them. It’s not easy. They’re our unique responsibility and our unique burden. Because while our embryos remain suspended in time, we don’t.
Hence, this fact sheet, a guide to anticipating some of the quandaries we confront and exploring the choices we have.
The Options
A good initial cryopresevation consent agreement usually outlines three disposition choices:
- Thawing without intent to transfer. Lucinda Veeck, M.L.T.,D.Sc., Director of Embryology at the Center for Reproductive Medicine and Infertility in New York City, says at her program, 53% of the 364 patients who have gone through with their choice have elected this option.
- Donation for research. While raging controversy and federal limits have restricted directed giving to stem cell research, there are myriad other well-accepted research initiatives, such as staining for DNA and genetic analysis that rely on embryos. And despite the ban on federal funding for stem cell work, privately funded institutions are moving forward. Reports Dr. Michael Alper of Boston IVF, one such center, “There is no shortage of donations.
At CRMI, Dr. Veeck reports that about 41% of patients have gone the research route. - Donation to other infertile people. Logistically and emotionally complex, donation for transfer has its own guidelines established by the American Society of Reproductive Medicine. It’s a many-layered effort by both the donors and recipients, requiring a six-month quarantine of the embryo, blood and genetic testing and retesting of donors, blood tests for the recipients. Both parties must sign informed consent documents addressing relinquishment and acceptance of parental rights should children result, as well as liability, among other things. Whether or not it is an anonymous transaction, both donors and recipients are strongly urged to get psychological counseling.
“We’ve only donated embryos from two patients because of the difficulties inherent to follow-up testing,” remarks Dr. Veeck. “And in the 6% group desiring to donate, most have not actually given away their embryos yet.”
How Was I Supposed To Know?
These days, even before there’s an embryo, there’s the consent form. That daunting document demanding that a patient know, ahead of time, what to do with remaining embryos…if there are any. For infertile people, that’s one incomprehensibly huge “if.”
So hopeful patients fill in the blanks with the best intentions. The rub is that when it actually comes time to act on that initial agreement, people often find that first choice isn’t the one they want after all. It’s important to remember that first consent form is not the actual disposition form. You can shift gears at any time.
Changes of heart happen for a million different reasons: divorce, the death of a spouse, economic hardship, a multiple birth after the first cycle. Sometimes the partners in a relationship simply aren’t on the same page – one may want more children, the other has no interest. One partner may see the embryos as their potential children, the other regards them as left over sperm and eggs.
Inevitably, life’s constant evolution leads to embryos that sit, sometimes for an embarrassingly long time.
“People have them frozen and then forget about them,” says Dr. David Hoffman, Medical Director at IVF Florida/Reproductive Associates in Margate, Florida. “But they still don’t want to get rid of them. I don’t think patients think of a frozen embryo as a person, but it’s tough to let go.”
Dr. Veeck adds, “Many patients respond by doing nothing. They continue paying for storage fees rather than make a decision. And I think that’s the appropriate thing until they’re quite sure what they want to do.”
Behind the Choices
The language of disposition seems straightforward and precise. In fact, most people are sandbagged by how profoundly affected, confused and conflicted they are when it comes time to commit.
So, most elect to do nothing. Make no mistake; doing nothing is making a decision. Endless postponements means someone else-a family member or the clinic—may get stuck on the horns of what is rightfully your dilemma.
Overwhelmingly, frozen embryos are intended for use by the couples that created them. But IVF centers around the country report that the sheer number in storage is putting a squeeze on space, with some embryos in residence for a decade or more. Increasingly, centers are attempting to contact patients who haven’t been active for several years. It can be an onerous and difficult task, and on occasion, pointless.
At CRMI, Dr. Veeck puts the abandonment rate at about 10%. That’s after three registered letters, using search agencies and making countless phone calls.
Not all clinics have the wherewithal or the intention of going to such lengths. But most clinics will not dispose of embryos without an explicit, legal go-ahead from patients.
For the most part, says Dr. Hoffman, “couples usually pop up out of nowhere” when they’re notified that unless they respond, the embryos will be discarded.
Contrary to all the hype, Dr. Hoffman notes there are “very few not spoken for. The government thinks there are huge numbers out there. But there aren’t a lot of abandoned embryos at all.”
In other words, the vast majority of us with excess embryos are left to wrestle with our personal convictions and moral codes.
What Gives Meaning
For some people, contributing their embryos to research in an effort to help others gives them a sense that their assisted reproductive efforts have lasting value. “It’s a way of giving back to medicine and it makes them feel good,” says Dr. Alper of Boston IVF.
For others non-viable thawing provides closure. “It’s interesting, but people are very relieved when their embryos are discarded,” observes Adele Kauffman, Ph.D., and program psychologist at Reproductive Science Center in Waltham and Boston. “Embryos in the freezer are unfinished business. Once it’s done, they feel they’ve come full circle.”
Still others, impelled by altruism, empathy, or religious beliefs to help other infertile people, want to offer their frozen fertilized eggs for transfer.
“Initially, I thought it would be the option everyone would choose,” says Dr. Veeck at CRMI. “But when they think that they might have offspring out there and not know them or how they’re going to be brought up, they usually reconsider.”
In a recently published article, Dr. Craig Syrop at the University of Iowa Hospitals and Clinics, notes that
Of 365 couples with embryos stored after two years, 12% “indicated a willingness to donate to other couples (was) nearly equal to the desire of couples to donate to research.” But, he finds, when faced with the “reality of clinic visits for counseling, STD testing, and informed consent before embryos are donated and utilized” interest wanes and research outstrips donation to others by nearly 2 to 1.
The Donation Drama
Embryo donation for transfer is a media magnet, drawing tremendous attention when some began referring to transfer donation as “embryo adoption.” It is not.
“Adoption is a specific legal framework with specific guidelines around parental rights and obligations and applies to only living children,” says Susan Crockin, a Boston area attorney specializing in reproductive matters. She calls donation for transfer a “positive, but limited” option. She notes that five states have laws on the books dealing with this form of embryo donation, but nowhere is it the legal equivalent of adoption.
While the federal government is on the cusp of launching public education campaign advocating “embryo adoption,” Crockin calls it a misnomer that may make people feel good but “glosses over the legal reality.” At a minimum she recommends a legal agreement between donor and recipient; and consider, in those states without an embryo donation law, that the recipients go to court to have themselves declared the parents of a resulting offspring to avert the risk of custodial claims by the genetic parents or the extended family.
However, things blur on the psychosocial front where, psychologists say, the adoption parallel is stronger.
Embryo donors and recipients should expect that resulting offspring will want information about their genealogy, their genetic makeup, and their biological parents. Donors must be prepared for the possibility of a knock on their door one day even if the transaction was strictly anonymous. As decades of experience with adoption have shown, kids will come searching. Furthermore, laws protecting anonymity are subject to change.
“We’re in uncharted territory here,” said Dr. Elaine Gordon, a Los Angeles psychologist. Dr. Gordon says she’s getting more inquiries about embryo donation for transfer but many go nowhere.
“They find it too complicated and overwhelming in terms of what’s required,” she observes. “If they’re going to do it right, does it mean engaging in a relationship with the recipient couple and do they want to participate in that?”
She suggests that “responsibly done” ovum donation might provide the best model, with both parties entering into a “contract detailing terms of contact, if any, and information disclosed and exchanged. If the two parties can come to a meeting of the minds, the exchange can take place, facilitated by psychological, medical and legal experts.”
Embryo Donation Programs
There are several embryo donation programs, including the Christian faith-based agency, Snowflakes, that promotes “adoption.” At the root, all the programs facilitate matching donors with potential recipients and work through the details of the exchange.
“We’re a private (non-sectarian) agency and we liaise between the recipient and the donor,” explains Eileen Dover, executive director of Genesis Family Services in Holly Pond, Alabama.
Recipients send in a $100 application fee, list their requirements and are put on a waiting list until the right match pops up. The total agency cost to recipients is $1,800 but they’re also responsible for shipping, donor medical testing, notary feels, and a flat $250 attorney fee. Donors, who also can specify requirements for a receiving family, fill in a standard questionnaire, including medical history. Genesis’ simple-language but comprehensive contract requires adherence to the ASRM guidelines, but the agency leaves that to the donor’s doctor.
While Genesis doesn’t require psychological counseling, the contract calls for recipients to pay for up to three sessions for the donor, if the donor chooses. Dover also says, “we ask recipients to get counseling as well, but that’s their responsibility.”
Genesis advocates closed donations but will go with client’s wishes for open ones.
“We try to encourage transferring four embryos,” says Dover. “If you have 10 embryos (eggs that are fertilized, frozen but haven’t started dividing yet), you may get four to six that live through the thawing process. If they’re blastocysts (5-day-old embryos), there’s a darn good chance they’re going to do well and I don’t think any physician would do more than two or three.”
In Fullerton, California, Snowflakes operates on the assumption that this is an adoption. “In our program, we focus on the end result which is the child. That’s the same in all adoptions,” says JoAnn Eiman, a Snowflakes spokesperson.
The Christian faith-based agency requires recipient families undergo a homestudy, a fundamental process in traditional adoption, but controversial in embryo donation for transfer. As Eiman explains it, about 20% of the homestudy is about child abuse and Department of Justice background checks. “The other 80% is preparing the parent for a non-genetically linked child,” she says. The agency does both closed and open donations, depending on the preferences of the parties.
Snowflakes fees to recipients are about $4,000 for the matching, legal contract, shipping, coordination, rematching if required and lifetime support.
Begun in 1997, the first Snowflakes baby was born in 1998. In 1999 there were a couple of matches but no births. But by 2002 there were a total of 18 babies born and this year, Snowflakes expects another 23.
Do donors who’ve gone this far change their minds? “Most don’t but it happens,” said Eiman. “Typically when the donor couple gets a profile on the adoptive family they say ‘Oh my goodness, this is real. They’re going to take them and raise them.’ When they get the packet that’s when it hits them.”
It’s a whole new world, agrees Dover at Genesis. “It remains to be seen whether (donors) really get that they’re going to have children out there. They say, ‘Yes, I understand.’ But what’s going to happen 20 years down the road? I think about that when I’m whiting out the records and I think someday someone might want to look at that.”
When It’s All Too Confusing
Okay. We’re all pretty clear that the “what is to be done” with extra frozen embryos is at best confusing. The American Fertility Association strongly urges that you weigh the following to help ease the strain:
- Nobody has control over your embryos but you.
- You are not obligated to stick with your first decision or your second or third. The no-turning-back point comes only after you’ve formally and legally relinquished ownership of your embryos.
- Know that it is absolutely fine to wait as long as it takes for you to make the decision that feels right for you. No government, social or religious entity should force you into taking an action that, in your gut, you know is a personal mistake. Because you will have to live with this decision forever.
- Donating to other couples is a real and generous alternative. The AFA recommends you thoroughly explore the legal, psychological and emotional implications and potential long-term ramifications. You must feel confident that you can deal with the possible outcomes down the road.
- Thawing without intent to transfer is a perfectly reasonable option that most couples do choose, finding it provides the unexpected relief of closure. Yes, there may very well be grief and counseling or support that can serve you well.
We at The American Fertility Association will continue to report, write and provide you with as much information about this topic as we can. But, as one of the leading patient advocate groups, The AFA is always available to you, to answer questions, provide support and referrals. Please call our toll-free number (888) 917-3777. It always helps to talk with those who’ve been through it, too. "
Donor Anonymity - What Do You Think?
I read this great blog post by Donor Concierge, and I was impressed by the woman's candor. I wanted to share this with all of you as Gail has done and get your thoughts on the subject. As I have also been a donor, I have no problems allowing the children to have contact with me in the future in order to discover who they. I am not willing to have any relationship beyond that, but I am willing to share with them any information that may help them in their own journey through life. What do you think?
"Egg Donation: Why I gave up my right to remain anonymous
By Laura Witjens, Chair of the National Gamete Donation Trust, egg donor and mother 08 June 2009
Following a change in the law that came into force on 1 April 2005, British people conceived using donated egg, sperm or embryos can ask for identifying information about the donor when they reach the age of 18. Here Laura Witjens, egg donor and mother of two, writes about why she elected to remove her anonymity and potentially become identifiable to any children born from her donation.
I'll never know what made me watch breakfast television that morning. Being a single working mother with two one-year olds, it was a luxury I could ill afford. But I did, and one of the items changed my life forever. The same day, I contacted a fertility clinic and told them I wanted to be an egg donor.
It was the year 2000 and discussions about the removal of anonymity from egg and sperm donors were only just taking place between patient groups and other fertility organisations. For me, at the time just a willing and partly-informed donor, the notion of being known to any resulting offspring wasn't even a blip on the radar. The counsellor who I saw at the clinic was satisfied I knew what I was doing and, other than the known medical ones, no other long-term implications were discussed. Some months later the deed was done: 13 healthy follicles were harvested and I left the clinic with the feeling I'd done something momentous. Just how momentous, I only found out years later.
Not satisfied with the information available, as well as certain parts of the process, I made another life changing step. I contacted the National Gamete Donation Trust (NGDT) and asked if I could volunteer. I became a Trustee and, motivated by the pending removal of anonymity and differences of opinion with other Trustees, I went on to become the Chair. It's a position I've held for the last six years and in this time I've taken part in many gamete donation discussions.
I firmly believe in leading by example, a philosophy I carry through to my work as a business woman and as Chair of the NGDT. So, with such an emotive subject, how could I lead an organisation without putting my money where my mouth was? If I truly believed in the identity of the donor being disclosed to the donor-conceived person, the legislation at the time of my donation shouldn't have been relevant to me. I knew that re-registering as a known donor with the Human Fertilisation and Embryology Authority (HFEA) might be futile, since the family created out of my donation would never realise that their donor was willing to be known. Still, it was a matter of principle for me, and one that required substantial soul searching.
I asked myself the many questions that many donors in my position might ask: Can I empathise so much with these people that I'm prepared to open my door, my life, my family at a time that suits them? At the same time, can I be distant enough and accept that whilst I am prepared to make important steps towards that person's wellbeing, I will never find out if indeed they are well? More importantly, how would my children deal with this? They had absolutely no say in my choice to become a donor, but it's known that many donor-conceived people are more curious about their half-siblings than their donor. In other words, it wouldn't be me they were after; they would want to meet my own 'flesh and blood' children.
Through the NGDT I had access to donor-conceived young adults, donor conception parents and various fertility professionals. But not surprisingly the act I was contemplating was, and to a large extent still is, uncharted territory. It seemed no one could help me find the answers I needed. As not just a donor but also heading the NGDT, I did not just want to accept it - I had to wholeheartedly support and embrace it.
My answers came through my children. By then my seven year old daughter and son were developing into individuals with their own quirks, traits and habits. I divorced their father when they were one and remarried when they were four. In other words, I have my own social experiment going on with twins fathered by one man, raised by another.
My children have taken on habits from both men. Unlike donor parents, however, I know where this comes from and can share that with them when appropriate. This may seem rather trivial from the outside, but I know from experience that it does matter to them.
I donated to help other people less fortunate than myself. I went through weeks of unpleasant injections and examinations, believing I was doing the right thing. 'Doing the right thing' has been my drive through all of this: being a donor, leading the NGDT, raising awareness. And now doing the right thing means giving the children I helped to conceive access to information about me.
I have since re-registered and am happy to make myself available to the child born out of my donation. If I can help to give them understanding about themselves I will gladly help. It may seem like a little thing, but I know from experience it could mean the world to them."
Embryo Mix-Up, Resulting Abortion, and Adequate Justice?
Well, in case that is catching alot of media attention involves a couple who went back to their IVF clinic in the UK to use their last remaining embryos to create a second child. The reports are as follows:
"A couple who were having IVF treatment when their final embryo was implanted in another woman by mistake said today they might use the compensation they received to try for another child.
The couple, from Bridgend, south Wales, who have a six-year-old son and are identified only as Deborah and Paul, won a legal battle against the IVF Wales clinic, in Cardiff. The woman who received their embryo was told of the mistake shortly after it occurred and decided to terminate the pregnancy.
Deborah and Paul said they would consider trying for another child but it would be two years before they seriously thought about attempting another cycle of IVF treatment because they were not "emotionally ready" after the blunder by the Cardiff and Vale NHS trust.
They turned down an offer of another round of IVF treatment by the trust free of charge after the mix-up and reiterated today that they could never return to the trust because they had lost faith in its staff and procedures.
Nine embryos had been created using IVF in 2000, and Deborah, a 38-year-old hospital worker, subsequently gave birth to a son.
The remaining embryos were stored until 2007, when she and her husband, a 40-year-old print plant manager, decided to try for a second child. One of the embryos had survived and they travelled to the clinic for treatment, only to be told of the mix-up.
Deborah said the couple had been hoping to provide their son with a sister. Describing the moment when they were told about the mistake, she said: "We felt absolutely devastated. Both of us got very tearful.
"We just wanted to get out of there. The actual mention of the termination part of it really upsets us because we tend to think of the embryo as the little boy that we have got because he was from the first batch of embryos."
Paul said: "It took some time afterwards for it to sink in. We decided then we wanted to investigate and we wanted a full report. They were supposed to send us an investigation and they weren't sending anything. That was when we involved a solicitor to look into the case and investigate it."
The causes of the blunder remained secret until lawyers obtained reports into the incident. Documents acquired by their solicitor, Guy Forster, showed that the previous year there had been "near misses" because of problems in monitoring the ownership of embryos."
As you can see the couple is devasted, and the age of the mother, who is now over 40, now works against them retrieving potentially new embryos. Many are also debating whether the woman who became pregnant should have aborted. Should she have agreed to be a surrogate mother for this couple? I don't know - considering she was trying to get pregnant herself. This is not an ideal solution in any stretch of the imagination. What are your thoughts? What should that woman have done?
As for the courts, they awarded the couple $50K according to reports. Is that enough to compensate this couple? Is any amount enough to compensate this couple?
All I can say is that I feel deeply sorry for both couples - no one is a winner in this mess.
Friday Legal Update - Exclusive: Experts Respond to Octo-Mom's Sperm Donor Confession
Today's Friday Legal Update involves an interesting article regarding the Octo-Mom. Not only does is discuss my opinion, as well as the opinion of theASRM featuring Sean Tipton, but it truly highlights the need for legal representation and the proper consents that need to be in line between yourself, the donor and your physician. I think that the story of the Octo-Mom is teaching us again courtesy of RadarOnline....how ironic! Let me know your thoughts.
"In an exclusive video with RadarOnline.com, Nadya Suleman revealed that she never asked her sperm donor for permission to use their frozen embryos-embryos that would eventually become her octuplets. While all of the Octomom's 14 children share the same bio-dad, Nadya exclusively told RadarOnline.com on Wednesday evening that she "begged" the man to help her conceive her first six kids. When it came to the octuplets, she said, "I went behind his back and used them all. He didn't want me to. I feel so much guilt for that.
"RadarOnline.com asked experts whether Suleman's decision was ethical-or legal. Sean B. Tipton, the director of public relations for the American Society of Reproductive Medicine, explained that men typically sign away most of their rights when they donate sperm. "They almost always relinquish all control over the process," he said. "It's very important that donors understand that they're relinquishing those rights."
Suleman's most recent pregnancy clearly violated other ASRM guidelines, though. The group holds that women under 35 should not be implanted with more than two embryos at once. Nadya was 33 when she was willingly implanted with eight embryos. "We've had guidelines on embryo transfer for years, and we keep ratcheting those down," Tipton said. "Multiple births are dangerous for the mother and the babies."
So could Suleman's donor take legal action against the Octomom? "It's a really sticky situation," attorney Theresa Erickson, founder of the California Family Planning Law Firm, told RadarOnline.com. "It's unlawful for anyone to use sperm, eggs, or embryos for any purpose beyond those on a consent form." If there was no written agreement between Suleman and the donor-or if the agreement included a timetable for the use of the sperm or restricted the freezing of embryos-he could have a case.
"If she asked for more [sperm] later, and another consent form wasn't signed, it's a gray area," Erickson added. "And if she lied to him or manipulated him, that might be a problem." The Octomom has said that her donor "would lose everything" if he came forward. Because of this, Erickson says that we'll likely never know whether she violated the law "unless the medical board investigates or she sues [the doctor] for malpractice. But I doubt that, because she got the eight babies she wanted." (Photo: WENN)"
Friday Legal Updates - CA Egg Donation Law, OK Restrictions, GA Embryo Law, Israel Surrogacy & Croatia Moves to New IVF Rules
TGIF to all once again. We have quite a few updates on the legal front as far as IVF and the related technologies are concerned - again, I blame the entire Octo-Mom mess. Regardless, some of the bills have a great purpose, so I am not going to complain. Today we are starting in California and ending in Croatia, so enjoy the trip!
California - Assemblymember Marty Block of San Diego has proposed AB1317, which will require that all advertisements for egg donation include a warning informing patients that there are potential health risks involved and advises consulting with one's own physician. Here is the current status of the bill for review on the California Legislative Website.
Oklahoma - The state enacts sex-selection, cloning bans. The governor has signed into law banning sex selection abortions and human cloning. The bills were signed in law May 21.
Georgia - Georgia will officially become the first state with an embryo adoption law when the law takes effect July 1, 2009. The "Option of Adoption Act" - "Embryo adoption allows the adopting mother to experience pregnancy and has been promoted by pro-lifers for years but, until now, has not been governed by the laws of any state. Significantly, the Georgia bill amends Georgia's adoption laws to make clear that embryo adoption in fact is a form of adoption. The law also allows adoptive parents to file in court for a final order of adoption (for the child who is born as the result of the embryo adoption), which supporters of the new law say clarifies that the adopting parents are eligible for claiming some but not all of their expenses for the federal adoption tax credit, which this year is more than $11,000.
Although embryo adoption tends to be cheaper than traditional adoption it nevertheless can still cost several thousands of dollars. "
Israel - Haredi widow to become a surrogate mother. For the first time in Israel, an ultra-Othodox woman will serve as a surrogate mother, after receiving authorization to do so from a rabbi. "the woman was concerned of her neighbors' reactions should she become pregnant, and asked the Institute of Fertility and Medicine According to Halacha to arrange a halachic approval from a rabbi explaining her condition and guaranteeing she was not "promiscuous."
Croatia - Croatia moves to adopt long awaited IVF law. "According to the draft law to be forwarded to parliament within the next 10 days, infertility treatment would be allowed for married women only, a term that Milinovic labelled as "conservative."
At the same time, the legislation contains "liberal" provisions allowing egg and sperm donations, the minister added.
Under the new law, a child conceived by a donated egg or sperm would be able to obtain information about his or her biological parents once turning 18.
Such a provision was already condemned by local parents organisation RODA, which warned it could discourage potential donors.
Croatia's current law on medically assisted reproduction dates back to 1978, when the world's first "test-tube baby" was born. The former Yugoslav republic had its first IVF baby five years later.
A new bill had been in the offing since the late 1990s but never reached parliament.
Many believe this was due to strong opposition from the Roman Catholic Church which sparked a vivid public debate in 2005 when it condemned IVF as a "crime against human life."
Medical sources estimate between 2,000 and 3,000 Croatian women suffer from infertility and are potential candidates for IVF treatment."
Subscribe to my blog at: http://www.surrogacyeggdonorblog.com/subscribe.html
Suit over "Alleged Egg Sharing" Toss Again in Federal Court - ASRM & SART
In an order signed Friday in the District Court for the Northern District of California, Judge Fogel granted the Defendants' Motion to Dismiss, but ruled that the plaintiff, the Options National Fertility Registry, could file another amended complaint within 20 days..
For more information on this case see Suit Over Alleged Egg-Sharing Tossed Once Again
"Options, a bankrupt international registry of data pertaining to egg donation arrangements, filed the suit in October 2007 on behalf of a group of donors whose eggs the defendants, two organizations that represent doctors and clinics, allegedly gave to unknown and unauthorized recipients via an industrywide practice known as “egg-sharing,” in violation of legally binding contracts.
The suit alleged that from 1992 through 2003, the defendants and Options had written and oral contracts by which the defendants agreed not to transfer, donate, sell, give or otherwise dispose of any eggs or embryos of the donors to anyone other than recipients specifically designated in profile transfer requests signed by doctors.
But from 1992 to the present, the defendants have breached those contracts by engaging in egg-sharing without obtaining the consent of the donors at least two weeks prior to egg retrieval, Options alleged.
Options claimed it did not learn of the practice until January 2005, when a doctor testified that infertility doctors were encouraged by the defendants to participate in egg-sharing, according to court documents.....
The donors also fear that their offspring may have increased risk of unknowingly engaging in incestuous relationships because of the defendants' actions, according to the complaint.
In addition to punitive damages and attorneys' fees and costs, the suit sought to enjoin the defendants from engaging in unauthorized egg-sharing.
After Judge Fogel dismissed the complaint in October, ruling that the court lacked subject matter jurisdiction, Options filed an amended complaint in January, alleging the same state law claims for breach of contract, fraud and others, as well as two federal claims for civil Racketeering Influenced and Corrupt Organizations Act and antitrust violations.
The amended complaint alleged racketeering because the defendants violated Options' and the donors' rights and property interests, as well as antitrust violations because Options was driven out of business as a result of the defendants' slanderous statements.
In dismissing the amended complaint, Judge Fogel concluded that the Options' claims under the federal statutes were “so devoid of factual support as to border on the frivolous.”
Although Judge Fogel said it was dubious that Options could allege a viable racketeering or antitrust claim in the case, he granted the plaintiff leave to amend the complaint yet again."
Subscribe to my blog at: http://www.surrogacyeggdonorblog.com/subscribe.html
Friday Legal Updates - Embryos, Surrogacy, & Reproductive Tourism Revisited-
Happy Friday to one and all! I am excited about spending a weekend in Los Angeles. There have been some interesting articles posted over the last week from over the world. Read and give me your thoughts. Have a great weekend to all.
Montana - Lesbian Custody Case - Another case of "you are not the parent" explained in detail by Julie Shapiro, who has a great blog with alot of information on many legal issues. Of course, one of the women did not adopt the children, which would likely not be allowed in Montana, and the other woman wants full custody. It is another unfortunate case that is even bringing in the Alliance Defense Fund, who opposes gay/lesbian rights. So, go figure. It is before the Montana Supreme Court, so we will keep an eye on this one.
National - Single Embryo Transfer: Why Not Put All Your Eggs in One Basket? Great article by Dr. Petok via the American Fertility Association. A great response to the Octomom debacle and the move towards fewer embryos being transferred.
Australia - Incubated Embryos Destroyed after Sydney IVF Malfunction. This is a sad situation - I certainly hope that the end result is good for all of these patients.
Ireland - Irish Couples Face an Uphill Struggle with Surrogacy Laws. Surrogacy at home in Ireland is almost impossible, even though there are no laws banning such practices. There is an adoption required, which makes this possibility virtually impossible unless it involves a family member. And, with changes in the law in the UK in 2005, that country is no longer an option as it was in the past.
Singapore - Singapore is now allowing reimbursement for altruistic living organ donations. The regulations and requirements will ultimately fall in the hands of the medical ethics boards in order to determine who is a healthy donor and who is acting altruistically. The Health Ministry now also has a plan in place as to how this will be done. Is this a step in the right direction? What do you think?
Subscribe to my blog at: http://www.surrogacyeggdonorblog.com/subscribe.html
