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

Surrogacy and Multiple Embryos - How would one ever expect these two individuals to be in the same post?  But, here we have it.   Dr. Kamrava, the infamous doctor for the "Octomom," is now being accused of "gross negligence." 

A disciplinary complaint filed by the California Medical Board said that Dr Michael Kamrava acted “beyond reasonable judgment” by helping Nadya Suleman to conceive octuplets.

The complaint filed by Barbara Johnston, the executive director of the medical board, questioned Dr Kamrava’s treatment methods and criticised him for not referring Ms Suleman to a mental health professional after she repeatedly sought fertility treatment. At the time she conceived she was living in her mother's three-bedroomed home, subsisting on benefits.

The complaint states that Dr Kamrava implanted Ms Suleman with a far greater number of embryos than the American Society of Reproductive Medicine recommends and "beyond the reasonable judgment of any treating physician".

The ASRM expelled Dr Kamrava in September, but his medical licence was not affected, allowing him to continue treating patients.

The medical board has yet to set a date for hearing the complaint, which could result in Dr Kamrava’s license being revoked or suspended.

Hopefully, this issue will be resolved, but not before he will implant Tia Tequila!  Of course, we all know that she has not been a mother yet, so he would be the perfect doctor to use for her and her brother.  She claims that she wants to be a surrogate for her brother, but we also know that a woman should have given birth to at least one child and have custody of that child.  That case is just what this industry needs - more problems being created by those who do not seek the advice of competent practitioners.  Happy 2010!

Theresa Erickson
Attorney at Law
www.ericksonlaw.net
www.surrogacy-eggdonation.com

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Surrogacy gets a bad rap from the media in general, as they only seem to want to post stories that are negative or involving a celebrity.  In fact, the blogsphere was in full swing yesterday after NY Times posted an article that was not so nice.  It was called Building a Baby, With Few Ground Rules, and it was absolutely depressing.  The piece would almost make anyone run from surrogacy - myself included; however, the most important point to take from that article is that couples, surrogates and egg donors need to make certain that they do the right things with the right team and professionals. 

In fact, Kathy Benardo of Northeast Assisted Fertility Group stated it very nicely when she clarifies that it speaks of only bad surrogacies, while the piece only slightly makes the point that most surrogacies go well.  What she also addressed is that "The Michigan and Indiana cases discussed did not follow the proper legal or medical protocols at all; in fact, the egregiousness is stunning. These surrogacy cases should have never happened in the first place."   Yes,I agree, Kathy, wholeheratedly. 

Surrogacy, despite what the naysayers may say, is not an unregulated Wild West mentality, although the article does make one think that.  When done correctly, Surrogacy is an exciting option for infertile couples and individuals, as well as LGBT couples who could otherwise not have a child, to have the family that they always dreamt of. 

Just look to the posts by a set of hopeful Intended Parents who have been through so much to have their baby - My Journey to Myles and Beyond.  Just look at the timeline on the side.  They certainly are upset with the article that over sensationalizes what surrogacy is all about.  The Intended Mother puts her heart on the line, and it is worth a read.

Let me know your thoughts.  We will take up Reproductive Tourism this week again involving Canada and the rules that are being violated when working in that country, so keep watching. 

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San Diego & Los Angeles, CA October 27, 2009 – Egg Donation Lawyer Theresa M. Erickson applauds Governor Schwarzenegger and Assemblyman Marty Block for enacting a statute that will further protect those women who are donating their eggs for infertile couples, in addition to those protections put in place via Proposition 71 for those donating to research. This law would require an advertisement seeking egg donors associated with the delivery of fertility treatment, including assisted oocyte production, to contain a prescribed notice relating to the potential health risks associated with human egg donation.

The final version of the bill requires that every advertisement include the following information: "Egg donation involves a screening process. Not all potential egg donors are selected. Not all selected egg donors receive the monetary amounts or compensation advertised. As with any medical procedure, there may be risks associated with human egg donation. Before an egg donor agrees to begin the egg donation process, and signs a legally binding contract, she is required to receive specific information on the known risks of egg donation. Consultation with your doctor prior to entering into a donor contract is advised." In fact, Attorney Erickson believes that the law also finally settles the question as to whether a binding legal agreement between the parties is required in addition to the informed consents signed with the fertility clinics due to the specific language that was signed into law on October 11, 2009. 

According to the Biopolitical Times, this law is the first of its kind in the United States, and Egg Donation Lawyer Erickson, who has been an egg donor herself, applauds this as a step in the right direction.   However, Attorney Erickson insists that more needs to be done to ensure the protection of the parties involved in assisted reproduction technologies, including embryo donation and surrogacy. 

http://www.prweb.com/releases/eggdonation/lawyer/prweb3120394.htm

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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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There seems to be quite a bit of an uproar over the case involving the woman of sick twin daughters, who were conceived via sperm donation.   Some are saying that she signed on the dotted line, and some are saying that the clinic is obligated to provide her the information on the donor.  What do you think?  I think that the system regarding donations needs to be overhauled but via the clinics and agencies, not via the legislatures where the real issues are often misunderstood.  In fact, Sean Tipton of the ASRM stated it quite well as folllows: he states that he "believes the donor debate is best left between adults - not courts and legislatures."

“Most states have established a clear path for sperm donors to relinquish their parental rights and obligations,” Tipton said. “Agreements entered into need to be honored unless all parties agree to change the terms.”

I agree with that perspective, but these children and the parents of these children may need contact in the future, which I why I am a big advocate of this information being stored.  My office does it for a 21 year period in a very efficient and safe way, and it is time that others do the same.  Ultimately, we cannot force these donors to comply, but it should be an option. 

What are your thoughts?

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All I can say this morning, is come on, people!  Thank goodness this is not in the US....did the "Octomom" not teach everyone a good lesson. 

So, for those of you who have not heard, a woman in Gafsa, Tunisia is apparently pregnant with 12 babies.  No one is certain how the 12 were conceived, but Dr. Dr. Mark Hamilton, of the British Fertility Society thinks that "the woman could have been receiving ovulation induction treatment, which stimulates egg production. You don't have the same control as with IVF."  But, again, there is a responsibility on behalf of the clinic when the follicle count is that high.  Don't you think?  Or, am I way off base?

The teacher, who has not yet been named, is expecting six boys and six girls, according to reports. She conceived the babies following fertility treatments, after suffering a number of miscarriages.  Fertility experts confirmed the extraordinary pregnancy was possible, but carried "colossal" risks - Really?  We did not know that.  

Sorry for being cynical, but I certainly hope that this is not some hope for a reality show. 

According to Fox News and Dr. Manny Alvarez, managing health editor of FOXNews.com, he has said it is possible for someone to be pregnant with 12 babies, and he has in fact seen a woman pregnant with nine babies. However, the likelihood of this woman carrying all 12 babies to term is very slim.

"When you get to a pregnancy with that many multiples, often some of them spontaneously die," Alvarez said. "Anything more than five babies becomes a very high-risk pregnancy."

If the woman does succeed in carrying a majority of the babies to term, Alvarez said she will need constant monitoring, and will more than likely need to be hospitilized.

"The rates of premature labor for multiples are astronomical," he added."

Nadya Suleman of Bellflower, Calif., currently holds the record for the longest-living octuplets in history.

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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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In an order signed Friday in the District Court for the Northern District of California, Judge Fogel granted the Defendants' Motion to Dismiss, but ruled that the plaintiff, the Options National Fertility Registry, could file another amended complaint within 20 days.. 

For more information on this case see Suit Over Alleged Egg-Sharing Tossed Once Again

"Options, a bankrupt international registry of data pertaining to egg donation arrangements, filed the suit in October 2007 on behalf of a group of donors whose eggs the defendants, two organizations that represent doctors and clinics, allegedly gave to unknown and unauthorized recipients via an industrywide practice known as “egg-sharing,” in violation of legally binding contracts.

The suit alleged that from 1992 through 2003, the defendants and Options had written and oral contracts by which the defendants agreed not to transfer, donate, sell, give or otherwise dispose of any eggs or embryos of the donors to anyone other than recipients specifically designated in profile transfer requests signed by doctors.

But from 1992 to the present, the defendants have breached those contracts by engaging in egg-sharing without obtaining the consent of the donors at least two weeks prior to egg retrieval, Options alleged.

Options claimed it did not learn of the practice until January 2005, when a doctor testified that infertility doctors were encouraged by the defendants to participate in egg-sharing, according to court documents.....

The donors also fear that their offspring may have increased risk of unknowingly engaging in incestuous relationships because of the defendants' actions, according to the complaint.

In addition to punitive damages and attorneys' fees and costs, the suit sought to enjoin the defendants from engaging in unauthorized egg-sharing.

After Judge Fogel dismissed the complaint in October, ruling that the court lacked subject matter jurisdiction, Options filed an amended complaint in January, alleging the same state law claims for breach of contract, fraud and others, as well as two federal claims for civil Racketeering Influenced and Corrupt Organizations Act and antitrust violations.

The amended complaint alleged racketeering because the defendants violated Options' and the donors' rights and property interests, as well as antitrust violations because Options was driven out of business as a result of the defendants' slanderous statements.

In dismissing the amended complaint, Judge Fogel concluded that the Options' claims under the federal statutes were “so devoid of factual support as to border on the frivolous.”

Although Judge Fogel said it was dubious that Options could allege a viable racketeering or antitrust claim in the case, he granted the plaintiff leave to amend the complaint yet again."

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According to a press release sent out by ASRM, Triplet and Higher Order Multiple Births from ART Are Below Two Percent.  Further the Society for Assisted Reproductive Technology Releases Data from 2007 Clinic Outcome Reports.   The information is as follows:

"Washington, DC – The latest IVF Success Rate Reports from the Society for Assisted Reproductive Technology (SART) are now on-line. The 2007 data show several important on-going trends: the percentage of live births with triplets or more is now below 2%; the average number of embryos transferred has declined; and the percentages of cycles utilizing single embryo transfer is up.

SART President, Elizabeth Ginsburg, MD, commented, “Our latest numbers show our progress in decreasing the incidence of multiple pregnancies. In 2007, 1.8% of live births to patients under 35 were triplets or more; this is down from 6.4% in 2003. As our members continue their efforts in implementing ASRM-SART guidelines, we should see future improvements in patient care and outcomes.”

For 2007, 358 clinics reported data to SART on 132,745 treatment cycles, 40,050 of which resulted in the birth of 53,050 babies. "

For the SART Results, patients can click on the yellow box, “IVF Success Rate Reports,” to search for SART member clinics in their area and view the clinics’ individual data. Each clinic’s report allows access to yearly data from 2003 through 2007 and details procedures the clinic offers with corresponding success rates. Prospective patients can use the site’s features to view clinic data organized according to the treatment types and diagnoses most relevant to them and with a click, can send a request for additional information.

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I am still waiting for this controversy to finally die down, but it sure does not look that way with new information coming out about the mother and her fertility doctor.  But, today I want to stay away from that and look more to the regulations that everyone is literally screaming for at the top of their lungs.  I understand that everyone wants some control since it looks like the tax payers are ultimately going to pay the bill for her decisions, but I also want to make note of how regulations will also affect the millions of other fertility patients that do make sound decisions in their family planning.

First, in other countries that have regulations surrounding the number of embryos being implanted, I want to note that the government actually foots the bill for a certain number of IVF cycles - thereby giving patients an added assurance that they can try one embryo at a time because their government will pay for another (possibly) cycle.  Here, in the US, we do not have that luxury as this is a cash business.  Very few, if any states and insurance companies cover the costs of IVF.  These patients are then placed in the dilemma of not having enough funds to cover another cycle if this one does not work.

Now, with that in mind, I want to encourage everyone to look at the issue of regulations with an open mind, and look at what Dr. James A. Grifo, the program director of the New York University Fertility Center at the Langone Medical Center and a professor of obstetrics and gynecology at the university’s School of Medicine, has to say in the following piece:

"The fascination with the octuplets born last week has dominated the news media. But after the initial marvel of the miraculous feat faded, we were left wondering why an unemployed mother of six wanted more. Responses from around the country, and within the medical community, included cries of malpractice and demands for new laws regulating fertility treatment.

But where would this lead? A knee-jerk response to one outlier does not always prevent the next. Legislation about how to practice medicine threatens doctor-patient relations and has unintended consequences that may be worse than the actual problem. We live in a country that doesn’t regulate family size. If we were to decree a proper number, who would decide?

In 1992, Congress passed a law requiring fertility clinics to report their pregnancy rates. It came about because a rogue practitioner was telling patients the success rates of in vitro fertilization based on national statistics and neglecting to mention that his own clinic had none. Thus a national registry was born, financed by taxpayers. The clinics that refused were listed as non reporters, hardly a punishment.

But the implications of a government published report were unanticipated and it changed behavior. Since clinics were measured by pregnancy rates, there was incentive to implant more embryos into a patient — creating the unwanted consequence of a boom in twins and triplets.

The American Society of Reproductive Medicine and its subgroup, the Society for Assisted Reproductive Technologists, recognized the problem and published guidelines for the number of embryos to transfer to maximize pregnancy rates but minimize multiple gestation, especially triplets and beyond. We have now published three iterations of these guidelines since 1999 with a significant decline in the incidence of triplets and higher. This happened without laws being passed; it was simple cooperation of clinicians doing the right thing for positive change to happen.

Medicine cannot be practiced in a vacuum or by legislation. It requires a patient and physician dialogue, it requires decision-making that minimizes risk and maximizes good outcome, and it requires patients and physicians to make good decisions. Indeed, that is already happening but that story is lost in the tsunami of one unusual case whose facts are not known."

Click Here for the Complete Article

Theresa M. Erickson, Esq.
Surrogacy Lawyer & Egg Donation Lawyer 
www.EricksonLaw.net

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I do hate stories such as this that capture so much media attention.  They actually take away attention from all of the "good" stories out there, such as the couple who conquered their infertility after five tries at IVF.  Just today I read scores of articles calling the birth an outrage and the actions of the doctor criminal.  I am still on the fence about this entire story, and I am withholding judgment at this point, but I am curious to see what others are thinking.

Click Here for Article from LA Times - Octuplets' birth spawns outrage

Click Here for a Press Release from an IVF Physician in Georgia

Click Here for Blog from San Diego IVF Physician

Theresa M. Erickson, Esq.
Surrogacy Lawyer & Egg Donation Lawyer 
www.EricksonLaw.net

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

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Who would have guessed that smoking was hazardous to more than just our health - but, also our fertility?  In the news today, we have learned the following:

"In research that might have implications for human reproduction, U.S. and Chinese scientists have found that cigarette smoke damages mouse eggs and embryos.

The study was designed to examine whether cigarette smoke causes oxidative stress, cell death and dysfunction, and the shortening of telomeres (DNA at the ends of chromosomes that protect them from degradation). Two groups of female mice were exposed to cigarette smoke or cigarette smoke condensate for four weeks and compared to a control group of mice...

The study was published in the November issue of the journal Fertility and Sterility.

'Here is even more evidence demonstrating the dreadful effects smoking has on reproductive tissues and function. While there are some data implying that the effects may not be permanent, every woman planning to become pregnant would be wise to quit smoking or, better yet, never start,' Dr. William Gibbons, president-elect of the American Society for Reproductive Medicine, said in a society news release."

Click Here for the Complete Article

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