Friday Legal Updates™ - Croatia Update, Embryos Mishaps, Stem Cell Lawsuit, & Maternity Leave
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!).
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.
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."
