Egg Donor & Surrogacy Law Blog : Surrogacy and Egg Donation Lawyer & Attorney : Theresa Erickson : Erickson Law Firm : Practicing Reproductive and Gestational Carrier Law

Marna Gatlin of PVED and the AFA teamed up for a great blog regarding some up and coming Arizona legislation that I blogged about last week.    

Read, and let me know your thoughts!

"by Marna Gatlin

Today I am worried – I am worried about those who for various reasons have turned to creating or adding to their family via egg donation and now might have that option threatened --especially if they live in Arizona.

The Arizona legislature is attempting to push through two bills that are coming up in the Arizona legislature for a vote - SB 1306 / HB 2651 (both bills referred to hereinafter together as “SB 1306”).

If these laws are passed they would impose oodles of restrictions on those who choose to use egg donation as treatment for their infertility.  And the reason I am worried is that for many couples – especially those who live in Arizona this is going to strip these poor people of their last remaining hope to try and have a child via egg donation.

SB 1306 is going to outlaw donor egg compensation that is provided to those who donate eggs to infertile individuals who are attempting to have children via egg donation. This bill is going deny egg donors appropriate compensation and under-compensate our egg donors and discourage them from helping anyone who chooses to have a baby.  And I am sorry – but that’s just wrong.

Egg donation’s been around for a very long time – 20+ years to be exact.  Egg donation treatment isn’t just for those who are in their 40’s and beyond.  Egg donation treatment is also for young women who have undergone cancer treatment, who have lost their ovaries to ovarian cancer, or who have lost their eggs due to chemotherapy.  And what about those who have been diagnosed with premature ovarian failure, or those who have a genetic disorder that they don’t want to pass down to their future children. 

What kind of message is the Arizona legislature delivering by telling a cancer survivor that instead of being able to seek treatment in her state now she has to travel elsewhere for treatment because there are no egg donors in Arizona who can offer her eggs that will help her achieve her dream of becoming a mother?

You know the UK went this route in 2004.  They made compensation for both sperm and egg donation illegal.  Guess what?  The number of egg and sperm donors dropped horribly.  The people of the UK who want to have children and are faced with waiting years and years for an egg donor who will donate completely for free aren’t doing that.  Guess what they are doing?  They are going overseas – to the United States, the Ukraine, Spain, and the Czech Republic to attempt to create their family.  And the people of Arizona they are going to be forced to do the same thing travel to another state for treatment.  That is if they can afford the expense and the time.  If they can’t – Game Over.  

Is that fair for them?  No it’s not.

If that’s not enough – this bill (SB 1306) was created to discourage doctors from providing egg donor treatment in the first place requiring more informed contests, more red tape along with a boat load of incredibly tough penalties. One being the loss of their medical license, if the physician doesn’t follow the new imposed rules exactly as spelled out in the law.  And if you read the informed consent rules – they contain inaccurate and scary scary language that is put there purposely to be scary. 

Now if you were an egg donor and had the crap scared out of you – would you donate your eggs?  I bet not, and I don’t blame them.

What the legislatures of Arizona don’t get is that our amazing egg donors who choose by their own volition to donate their eggs do so because they want to.  They genuinely want to donate their eggs to another woman so she can have that opportunity to become pregnant, have a baby and become a mother.  In fact, lots of egg donors become egg donors because they have watched someone in their family or have friends who have been directly impacted by infertility and they want to somehow help.

ASRM has created guidelines for egg donation with the intent that all clinics follow.  These guidelines include how to carefully screen egg donors, how to treat egg donors, care for egg donors, how many times an egg donor should cycle, and what we should compensate our egg donors.  And who provides these egg donors with the exceptional care they receive.  The very same doctors who treat the parent to be who so desperately wants to become a mother that’s who.

Clinics already provide the egg donor AND the recipient with informed consent. They don’t allow any patient to go through an egg donor cycle uninformed.  In fact, by the time both recipient and egg donor have completed an egg donor cycle they know more about their own bodies, and Reproductive Endocrinology than I think they might like!

God Bless RESOLVE – RESOLVE brought this issue to my attention and RESOLVE also joins ASRM in opposing two other bills, SB 1307/ HB 2652, as they will place burdens on physicians in their labs that will undermine their clinical care of patients and interfere with the best practices in medicine that doctors practicing reproductive endocrinology and infertility medicine provide to every single patient.

How can you help?  If you live in Arizona: send a letter to members of the House Health and Human Services Committee, click here.

To send a letter to members of the Senate Public Safety and Human Services Committee, click here.

To read the bills, click here and search on the bill numbers.
Right from the RESOLVE WEBSITE:

“On behalf of the more than 100,000 women and men in Arizona who are contending with infertility, RESOLVE opposes SB 1306 / HB 2651 because they will burden and perhaps eliminate an effective medical treatment that has been used all across this country for decades. It is women and men who are trying to build families who will suffer if these bills become law.”

If these bills are voted on and become law what’s going to stop legislatures from other states within the United States to follow suit?  Please don’t say “Oh don’t worry it will never happen” – The United Kingdom said that and we saw clearly what happened there.

Don’t allow lawmakers who don’t get it make arbitrary laws for us because they think they know better."

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Surrogacy News has been big this week in Australia, specifically in Queensland - and our updates will focus on where this will take the people of Australia in their quest to have a child via surrogacy.  But, first we will start with Indiana, where a couple is fighting for the right to have their names on the birth certificate of their child.

Indiana - The biological parents of a child born via surrogacy are challenging a ruling by the Indiana courts.  The Court of Appeals is to hear arguments this week.  A trial court denied their request as follows:

"A trial court judge denied the biological parents' petition to establish paternity and maternity for the child, ruling that "Indiana law does not permit a non birth mother to establish maternity. Indiana law holds the birth mother is the legal maternal mother."  The surrogate mother filed an affidavit in support of the biological parents' petition.  The biological parents appealed, arguing that the paternity statute denies women equal protection and should be declared unconstitutional."

Facebook & Twitter IVF Fund - Interesting story.  What are your thoughts?

 "The invitation went out by e-mail, Facebook and Twitter almost simultaneously to friends of San Francisco's Molly and Brian Walsh. Its title was tantalizing: "Makin' Whoopie." But its purpose was pure, as well as purely provocative.

"You can't help us in the bedroom, but you can help us make a baby," read the invitation to the party, which may have been a Bay Area first - a fundraiser to collect money for costly fertility procedures. With insurance companies reluctant to pay for the cost of in-vitro fertilization and few states with laws requiring insurers to do so, couples unable to pay for the procedure, which runs $12,000 on average, have few resources other than their own creativity.

Two low-profile national nonprofits, the International Council on Infertility Information Dissemination in Arlington, Va., and BUMPS (Bringing U Maternal and Parental Success) in South Florida, offer in-vitro fertilization services to couples without the money or insurance to pay, and who meet select criteria. Together, they assist fewer than 100 couples annually.

Despite their online know-how, the Walshes had not searched the Web for outsiders' help.

"It never occurred to me to reach out to them - I'd reach out to my own community first," said Molly Walsh, 38, head of business development at USA Hosts/Key Events. Her husband, Brian, 37, is the founder and chief executive of Castfire, a video publishing company. The couple, who met at a friend's house in 2006, are participants in Nevada's Burning Man festival and immersed in social networking, for business and pleasure.

Their decision to go public with a private matter was not easy. They feared backlash because the nature of their crisis was not life-threatening. Moreover, they had already saved $10,000, but were overwhelmed by the cost of the treatment - $25,000 to $30,000 in their case because they also need genetic testing of the fertilized embryos. Brian Walsh has Marfan's syndrome, a connective tissue disease, which they do not want to pass on to their offspring. There is also the race against the fertility clock."

Australia - Non-commercial surrogacy is no longer a crime in Queensland after a weeklong debate where sparks were flying over same sex and single parent surrogacy.  Although they do not expect to see surrogacy occuring in great numbers, many are upset with the results. Unfortunately, many also think that any payments to surrogates under the table will be difficult to stop.  One must note, however, that the surrogate is still entitled to not relinquish the baby.  An important note for those thinking of this as an option there. 

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Surrogacy,Embryo Donation & Dr. Phil - well, it has been a slow week for news, but again the legislation that is being considered in Tennessee and Oklahoma should cause us all to pause - patients and industry professionals alike.  TGIF!

Chicago - A Federal Appeals Court has upheld the conviction (rightly so) of a woman who scammed would-be parents by posing as a pregnant woman seeking to place her baby for adoption.  She also responded to ads placed by people looking for surrogate mothers with the false claim that she was already pregnant and was planning to give the baby up for adoption.  Beware and be careful out there.  

Dr. Phil - More on the Michigan Surrogacy Debacle - Should a mental illness prevent a woman from being a mother? Shelly made headlines when she agreed to be a surrogate for Amy and Scott, but later reclaimed the babies when she says she discovered that Amy had a mental disorder. It’s an emotional Dr. Phil you don’t want to miss! 

Oklahoma - The state is considering an embryo adoption law similar to Georgia.  As we know this is disasterous as it increased costs to the Intended Parents.  Take action!

Tennessee - This state is also following Georgia with bills on both the Senate and House Floors.  However, the House Bill does not make an adoption petition required, and it does have some good points, such as the maintenance of records for 21 years and the right of the child to obtain information at the age of 18 years.  It does require a written contract.  This bill is much easier to stomach, and actually would do alot of the things that are needed in this industry, including maintenance of records and release of information at the age of majority. 

Italy - The Italian Court has modified the legislation on Assisted Reproduction by finding the previous legislation regarding the protection of all embryos to be unconstitutional.  The future of this is unknown, as it appears that the Parliment will now need to step in, which is unlikely. 

Another great place to watch for legislative updates and where to find a place to help join the fight is Resolve - Take Action! 

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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!

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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.

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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. 

See Video from GMA here.

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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!

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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!!

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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!

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The case in India over the German couples' twins continues:

"Jan Balaz, father of two twin babies born through surrogacy in Anand, has filed a contempt petition against the passport authorities for non-compliance with the order of the Gujarat High Court.

Balaz recently won a legal case against the Regional Passport Authority in getting the Indian passports of his children returned.

The division bench of the HC comprising Justices K S Radhakrishnan and A S Dave, in a landmark judgment on November 11, had conferred Indian citizenship on the two boys, as their surrogate mother is an Indian.

The court had ordered the passport authorities to return the Indian passports of the two children.

However, when Balaz, a German national, failed to get the passports of his sons back from the authorities till November 16, he filed a contempt petition against them through his lawyer, Dhaval Dave."

Let's all hope this turns out well. 

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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?

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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

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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.

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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.

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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!

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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.

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TGIF to all!   I certainly need the weekend to relax - and to stay warm.  It is freezing in Southern California (I know, it is not really freezing, but it is for me!). 

Washington - "A judge dismissed a case this week by a Christian adoption agency's challenge to Obama administration regulations expanding stem cell research.

The case arose from a decision by President Barack Obama to lift restraints on stem-cell research that were put in place by President George W. Bush.

Nightlight Christian Adoptions contended in a lawsuit that the government's new guidelines will decrease the number of human embryos available for adoption. U.S. District Judge Royce Lamberth called that assertion speculative. Donors, the judge said, still may choose to continue to store the embryos or give them to an adoption agency rather than donate them for research.

For Nightlight to have grounds to sue, Lamberth ruled, potential embryo donors have to choose to donate their embryos for research and not for adoption.

Nightlight helps individuals adopt human embryos that are being stored in fertilization clinics. Nightlight began the program in 1997, using some of more than 400,000 frozen embryos with infertile couples.

"We're considering filing an appeal," said Ron Stoddart, executive director of Nightlight Christian Adoptions of Anaheim Hills, Calif. "It's unfortunate that the court did not address the merits of the action and instead took the easy way out and said in essence that we were not affected by the new guidelines and therefore weren't entitled to sue."

UK - Two stories out of the UK today -

a.  Women Using Surrogates in Fight for Maternity Leave: "

Campaigners claim the authorities are discriminating against “rent-awomb” mothers and have submitted evidence to ministers warning against the practice. They are calling for a change in the law.

The Government published new guidelines on surrogacy last month which were aimed at improving the rights of surrogacy patients, but did not tackle maternity pay.

The current guidelines only allow women who undergo a successful pregnancy to paid leave. They get time off even if they are not the genetic parent.

But people who use a surrogate have no right to paid or unpaid leave to look after their newborn child.

Adoption leave is also unavailable, because it only applies where a child is newly placed by an adoption agency.

Fertility law firm Gamble and Ghevaert is writing to ministers demanding they tackle the problem.

Partner Natalie Gamble said surrogacy is still regarded as an “exotic rarity”, which means statutory maternity leave does not apply.

Ms Gamble said: “The lack of right to maternity leave is tied up with the fact the surrogate mother is regarded as the mother.

“In any other circumstances you would get maternity leave. Women aren't going to need a whole year. What would make sense is a system where you have some sort of sharing arrangement [for maternity leave].

“We also need to take account of our modern human rights and anti-discrimination laws which do not allow unfair treatment of minority groups, however small they are.”

More than 40 babies are born in Britain every year with the help of a surrogate. The majority are to women who are unable to carry their own baby for medical reasons.

There is opposition in Britain to surrogacy becoming a “commercial” transaction. Restrictions mean surrogates cannot be paid for their services, although they may receive expenses.

These restrictions have triggered a rise in couples going abroad. But foreign surrogacy can be fraught with problems and a baby can end up being “stateless”.

The surrogate mother also has the legal right to keep the child, even if it is not genetically related to her.

Surrogacy arrangements are not legally enforceable. This applies even if a contract has been signed and the expenses of the surrogate have been paid. In British law, the woman who gives birth is always treated as the mother."

b.  Women Fear that their babies are not theirs after lab errors: "IVF is gruelling, heartbreaking and harsh. It's a costly gamble in which you can stake a fortune, your health and your sanity, more often than not for nothing. The odds are stacked against you from the start. So at the time of my own embryo transfer, any fear of laboratory mix-ups was subsumed by anxiety over whether the damn thing was going to work or not. In the euphoria that came when I discovered that I was pregnant, I pushed to the back of my mind the dangerous possibilities surrounding a baby conceived outside your body.

One fertility counsellor – who does not want to be named – says that she deals with an increasing number of people who fear that the clinic may have made a mistake. "It's an issue for a lot of couples, particularly the women. Mothers need to be sure of that bond and it's not uncommon to experience doubt."

This uncertainty over maternity isn't something I share. My daughter couldn't look more like my son. It's the first thing everyone says when they peer into her pram. But anyone who has been through the process of IVF will be able to imagine the doubt, the corrosive guilt, that some parents experience.

Maria underwent IVF after several years of unexplained secondary infertility. She has a nine-year-old daughter, conceived naturally, and a two-year-old son, courtesy of IVF. "I felt almost straight away that my son was different. He doesn't look anything like any of us. We're both Mediterranean so we are all very dark and olive-skinned. My son has a pale, Celtic complexion and reddish hair. People often express surprise when they realise I'm his mother; someone even once asked me if he was adopted."

I ask her if her partner has the same doubts. "I think he does," she says, then amends this to: "I know he does. I've seen him looking at him with a strange expression on his face." But they've never discussed it? Maria is emphatic: "We couldn't. Having that conversation would be admitting something terrible. It's taken me a while to get to this point but he's ours, whatever. He's our son. We love him and that's that."

Another woman, Linda, has two children from IVF and says that she "strongly suspects" one of them isn't biologically hers. "I can't really explain it," she says, "it's just an instinctive thing. He smelt different as a baby, he looks different, he just is different. I love him – I love him to bits – but I feel more and more that he probably isn't mine."

For some, the temptation of a DNA test becomes overwhelming. Michelle, from Yorkshire, says she arranged one for her five-year-old daughter and then cancelled it the day before. "I decided I didn't want to know. The potential outcome was too frightening. I'd rather live with the not-knowing." Belinda did go as far as DNA testing her twin boys. "I was so sure, 100% sure, there had been a mistake. The clinic I went to was a shambles; the staff were so distracted; [the clinic] was later shut down after it failed an inspection. But the test turned out positive: they were ours. It was like finding out I was pregnant all over again."

Note:  From October 1, the HFEA has introduced new rules, which include stricter guidelines about the handling and storage of gametes and embryos. If these are adhered to, the hope is that these rare but devastating mistakes will vanish – and along with them any anxieties that parents might feel about their children.

Croatia - "The Croat parliament on Friday passed an amended law on in-vitro fertilisation (IVF) making it easier for couples to receive treatment to help them to conceive.

Under the revised law couples only have to sign a statement confirming they are in a relationship. Previously they had to prove before a court they had been together for three years.

The new law, however, will still ban the freezing of embryos despite strong criticism from the opposition and parents' groups.

"Freezing of embryos is the gold standard everywhere in Europe except in Croatia," deputy of the main opposition Social Democrats, Milanka Opacic, said before the vote.

She accused Health Minister Darko Milinovic of denying couples access to the best means of overcoming fertility.

Until the new law, which was adopted in its unamended form in July, the freezing of embryos had been used by Croatia's doctors in IVF treatments.

The former Yugoslav republic's original legislation dated back to 1978, the year that the world's first test-tube baby was born. At that time freezing of embryos did not yet exist as a fertility technique.

Under the new law, children conceived by donated eggs or sperm will also be able to obtain information about his or her biological parents when they reach 18 if donors have given their prior agreement."

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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! 

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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!

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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.   

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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.

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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?

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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!

Indiana - A 62-year-old New Jersey man who adopted twins born to a surrogate mother in Indiana must go through the adoption process again, Indiana's Supreme Court ruled.

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

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.

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Although this case does not involve my normal conversation regarding surrogacy, egg donation or other forms of assisted reproduction, it does involve an interesting issue regarding immigration and our military members.   I found this article to be a sad note to an already trajic ending - however, hopefully this Marine's son can live with his mother and his family.  Good luck to them.

Click Here for the Complete Article.

Subscribe to my blog at: http://www.surrogacyeggdonorblog.com/subscribe.html

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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."

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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.

Prague -    The Justice Ministry is seeking changes to legislation which would affect the legal rights of surrogate and biological mothers.

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.

Belgium -  A Belgian couple who commissioned a surrogate mother to carry a baby for them are to appeal against a Dutch ruling awarding custody of the child to a Dutch family who bought her over the internet.

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

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As some of you may be aware, Vermont began to issue marriage licenses to same sex couples just last night after a vote made back in April began taking effect at exactly midnight a little over four months after state lawmakers voted to override Gov. Jim Douglas' veto of the legislation. 

Vermont became the fourth state to allow gay marriages on April 7, when the state House and state Senate voted 100-49 and 23-5, respectively, to override a veto by the governor.

This is good news for gay marriage advocates who want all families, including those created through gay surrogacy, to be recognized legally across the country for the sake of their children, as well as the couples themselves.   

In fact, Couples and gay advocates will be marking the day with celebrations, one of which is a wedding reception in Essex that will benefit the Vermont People with AIDS Coalition and other groups.

Should this trend continue across the US?  And, what about California where Prop 8 was passed back in November ruling same sex marriages invalid? 

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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.

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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?

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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. 

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Hello, I am finally back after a long trip away in Europe. And, just in time since it appears the vote on Sotomayor will happen today.  I wanted to reiterate my previous post regarding how she may or may not vote in this area of Assisted Reproduction.  See previous post here.  

In addition, since the California case involving Prop 8 may also come before her as a justice, her views will be very important to those this would affect.  On the other hand, it is clear from the news that the Department of Justice is trying very hard to get this out of the federal court system.  We will have to see where this goes in the coming months. 

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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. 

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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.

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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?

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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?

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Hello, and it is Friday again.  TGIF!  I have included a few interesting, yet informative stories that I think you will find to be thought provoking.  I am also including another link to our upcoming European Conference on Third Party Reproduction in Switzerland.  All are welcome!

Press Release Here and Link on Our Web Page 

Salt Lake City, Utah - the fate of Anthony, who is a boy who has been at the center of a legal battle between his biological mother, a traditional surrogate, his father (intended & biological) and his adoptive parents.  It looks like the justice system has worked this one out for the benefit of Anthony.  What do you think?

New York - New York Stem Cell Research Plan is being bashed relentlessly - many cite that women are being exploited by their eggs being used for research.  The claim is that these eggs are also being fertilized and/or being used for cloning.  Yes, egg donation for any purpose is a serious decision that one should only make after careful deliberation; however, I am on the fence on this one.  Anyone care to educate me on this one?

West Virginia - Lesbian moms can keep foster child - ruling confirmed.  The court was originally against the "untraditional" family; however, it looks as if they are allowing them to maintain custody at this point - although they are unable to adopt as a couple (only one can), as same sex couples are not permitted to do that in WV.  Actual opinion here.

Poland - A thirty two year old Polish woman agreed to be a surrogate mother, changed her mind but feared a legal battle and has since relinquished the child.    This is a scary prospect that we all need to think about before going into any of these arrangements, whether you are the surrogate or the parents.  Know the laws before you proceed!

London/India - As another reminder of preparing before moving forward in this area of family building, a couple from London spent a great deal of time in  India in a lengthy legal battle trying to bring their twins home. 

Another article listed here also provides those interested in surrogacy overseas to be careful, or you may risk losing your children. 

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San Diego & Los Angeles, CA June 10, 2009 – Erickson Law, a boutique law firm specializing exclusively in third party reproduction, and The Surrogacy & Egg Donation Center at Conceptual Options, LLC announces their European Surrogacy & Egg Donation Conference to be held in Genève, Switzerland July 29-31, 2009.  “We realized there is a need in the European community for information on the process of Third Party Assisted Reproduction in the United States, which is why we are holding this conference to raise awareness throughout Europe.” states Theresa M. Erickson, Surrogacy Lawyer, CEO and founder of Conceptual Options. 

“A substantial portion of our clients are located outside of the United States and with the recent events in the fertility world, we felt that an information seminar to explain this process was in order.” states Surrogacy Lawyer Erickson.  

The Surrogacy & Egg Donation Conference is aimed at informing the European community on the possibilities that exist in the United States 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.

The keynote speaker at this conference 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 Resolve and AFA, while sponsoring events that promote awareness outside of 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.

“The first step is to get your own thoughts in order,” states Michel Tournay the International Case Manager for Conceptual Options.  “If you are still unsure of how to proceed or where to look, ask questions, questions and more questions. We will show you what you need to build a team of professionals so you are not alone in your journey to building your family!” according to Tournay.

In fact, according to Tournay, “We understand your need for privacy and confidentiality, which is why this is a private informational conference.”   All information regarding attendees will be kept in the strictest of confidence to ensure you remain anonymous on all levels. 

For additional information on The European Conference on Surrogacy & Egg Donation please contact Michel Tournay at 001-858-748-4222 or visit our website.

About Conceptual Options, LLC & Surrogacy Lawyer Erickson

Conceptual Options was founded by Theresa M. Erickson, Esq. in 1999 and has been integral in all aspects of the fertility community and in helping build families through surrogacy, egg donation, embryo donation and sperm donation for couples and individuals across the United States and the World.  “All families are traditional; some just take alternative paths by using surrogacy, egg donation, embryo donation and sperm donation to become a family.”

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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)"

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Self-Regulation versus legislation - what is the answer?  What are your thoughts regarding the fertility industry?  Let us know.  

Here is the press release as follows:

"ORLANDO, FL, June 02, 2009 /24-7PressRelease/ -- Recently, in response to the negative press generated by the Octomom and Surrogenesis debacles, the Egg Donation and Surrogacy Professional Association members ("EDSPA") presented the organization's current status and future plans to a multi-disciplined group of internationally recognized assisted reproduction professionals. Among its many offerings, this non-profit organization provides safe practices guidelines to third party reproduction professionals.

The meeting attendees included representatives from the American Society of Reproductive Medicine, RESOLVE, the American Fertility Association, the American Bar Association, Egg Donor Agency owners, Surrogacy Agency owners in addition to attorneys who practices are limited to reproductive law.

The meeting also provided an opportunity for EDSPA to introduce its dispute resolution program for the infertile clients of third party reproduction professionals. This program, believed to be the only one of its kind in the infertility industry, will permit aggrieved clients to resolve disputes with their service providers in a non-litigious environment.

One of the meeting attendees, Maureen McBrien, a notable Boston family law attorney who authored Assisted Reproductive Technology: A Lawyer's Guide to Emerging Law and Science stated that "Right now, there is no regulation ... in general." Attorney McBrien offered her opinion that the best response might be for the industry to police itself. EDSPA could potentially act as a filter for agencies and be a place where intended parents, surrogates and egg donors could find security, she said.

About EDSPA

The Egg Donation and Surrogacy Professional Association accomplishes it's mission by providing a forum for education, communication and advocacy on behalf of patients, physicians, attorneys, agencies and affiliated professionals in the field of Third Party Family Formation."

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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."

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I have included the complete decision from the California Supreme Court on Prop 8 for review.  What do you think of this decision, and how will it affect your life?

http://www.courtinfo.ca.gov/opinions/documents/S168047.PDF

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Happy Memorial Day Weekend to all Americans - whether here or overseas!  I plan on taking off early today and spending Monday at home with my family. 

Well, here are this week's legal updates.  Enjoy!

Los Angeles, CA - New Life Agency Continues to Trial Against Beitler Services in Pursuit of Payments fro Surrogate Maternity Claims - Press Release Here

Colorado - Colorado Gay Couples Ok'd to Adopt - new legislation allows joint adoption of children by unmarried couples.  Colorado is now the 10th state in the country to allow such second parent adoptions.

Georgia -The governor has signed and passed the nation's first embryo adoption bill on May 18th.  What do you think of this law and how it will affect those opting for embryo adoption/donation?  What about the additional costs?

Massachusetts - Quincy Couple sue Boston Hospital over destroyed embryos - oops!  This is not good. 

"Destruction of the embryos amounts to gross negligence on the part of Brigham and Women’s Hospital and several members of its staff, the suit filed Thursday in Norfolk County Superior Court contends.

In a statement, the hospital said: ‘‘We are deeply sorry; we informed the couple as soon as we became aware and have apologized to our patient and her husband. We hold ourselves responsible for not ensuring the proper care of our patient’s embryos. We are improving our policies and procedures, adding an increased level of oversight to prevent this from happening again.’’

Julie Norton was diagnosed with rectal-colon cancer in 2001 at age 29, less than a year after the couple married.

The Nortons were told that the surgery and radiation and chemotherapy treatments Julie Norton had to undergo would greatly diminish her ability to have children, according to the suit.

The Nortons consulted with Dr. Elizabeth Ginsburg, the director of the hospital’s in vitro fertilization and assisted reproductive technology programs, and decided to harvest some of Norton’s eggs and cryo-preserve them after they were fertilized. "

Queensland, AU - Altruistic Surrogacy to be decriminalized - this is a move to make it easier for gay and lesbian couples to become parents. 

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I hate to beat up on a tired and worn horse, but I want to reiterate what I hear clients telling me all of the time - it should be their own personal decision on whether to pursue adoption in the first place or as a last resort.   My clients are tired of being judged and criticized when "there are so many children out there to be adopted."  Whether that is true or not, we cannot decide what is the best family building choice for anyone else.  And, we should not be judgmental.  Just be supportive. 

There are so many things to look at when making these decisions, such as cost (all of the options are actually about the same), timelines (how long do you have to wait), home study requirements, court procedures, age limitations, marital status requirements, and can the surrogate/birth mother change her mind in a surrogacy or adoption?   Each person has their own level of risk that they are willing to take.  What are your thoughts on this?  I would love to hear.

Listen to Creating a Family: Talk About Infertility and Adoption

Now, onto legal updates:

New England - Rhode Island seems to be the only hold out in the area of gay marriage.  We now have Vermont, Massachusetts, Connecticut, Maine and likely New Hampshire.  Fox News has their spin on RI's hold out.  What are your thoughts on this?

US - HR 697 Support the Family Building Act of 2009? - any thoughts on this particular piece of legislation? 

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