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

Surrogacy Issues  - Well, we have had a quiet week - thank goodness!  Especially after all the negative press last month regarding surrogacy.  We do have a few issues to ponder, so here it is:

California - Santa Cruz court to hear custody hearing on former lesbian partners' dispute over twins.  The sticking point in this case is that the sperm donor is now acting as the father, living with the biological, lesbian partner, and they are now a couple themselves.  Currently, the judge has granted temporary visitation to the other partner until the hearing takes place. 

Vermont - Contempt Hearing Scheduled in Lesbian Custody Battle.  Another lesbian custody case has come to a head due to one former partner failing to exchange custody fo the child as ordered by the court. 

"Many of those who are opposed to this custody exchange have used a series of arguments ranging from the argument that Isabella Miller is the biological daughter of Lisa Miller to arguments how Janet Jenkins is a stranger to Isabella Miller. Unfortunately for them, the law recognizes the rights of non-biological parents. Many men use sperm donors and women use egg donors and they are considered to be the parents of children conceived within any marriage or union that takes place even if they are not biologically related. In a case in California, a woman made the argument that her ex-husband was not the biological father of their child, and that meant that he had no rights with regards to the child. The courts found otherwise, and ultimately granted the ex-husband sole custody of the child after the woman followed the same course of action as Lisa Miller. As for the stranger argument, Janet Jenkins is the mother of Isabella by virtue of the civil union, and is only a stranger to Isabella since Lisa Miller has done her best to prevent any and all contact between Isabella Miller and Janet Jenkins."

Sad story for all involved regardless of anyone's sexual orientation. 

Worldwide - Sperm Donor Anonymity - A hospital in Delftzijl has won its legal battle to keep the name of a sperm donor secret from the lesbian couple who had a baby using his sperm.    The couple had gone to court to get the donor's details after their child was born with dark skin - they had chosen a white donor. 

"The hospital suspects the sperm may have come from an Aruban man who was in the hospital withh is wife for an artificial insemination programme. Officials have offered to contact this couple on behalf of the two women.

Groningen court rejected the women's appeal for information, saying they should first take the hospital up on this offer."

Try and have a dry weekend everyone!

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Here is a story that declares beware all over it.  Attention those using sperm donors - do it right or this could happen to you.

"A sperm donor who helped a lesbian couple conceive two children is liable for child support under a state appellate court ruling that a legal expert believes 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.

But Frampton, 60, of Indiana, Pennsylvania, died suddenly of a stroke in March, leaving lawyers involved in the case with different theories about how his death may affect the precedent-setting case.

Jodilynn Jacob, 33, and Jennifer Lee Shultz-Jacob, 48, moved in together as a couple in 1996, and were granted a civil-union license in Vermont in 2002. In addition to conceiving the two children with the help of Frampton — a longtime friend of Shultz-Jacob’s — Jacob also adopted her brother’s two older children, now 12 and 13.

But the women’s relationship fell apart, and Jacob and the children moved out of their Dillsburg, Pennsylvania, home in February 2006.  Shortly afterward, a court awarded her about $1,000 a month in support from Shultz-Jacob. Shultz-Jacob later lost an effort to have the court force Frampton to contribute support — a decision that the Superior Court overturned April 30.

Jacob, who now lives in Harrisburg, said Frampton provided some financial support over the years and gradually took a greater interest in the children.  'Part of the decision came down because he was so involved with them,' Jacob said Wednesday. 'It wasn’t that he went to the (sperm) bank and that was it. They called him Papa.”'

Oh, and they inseminated the one partner at home - no doctor and no legal agreement.  Ouch!

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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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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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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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Well, it is Friday again - TGIF to everyone.  Not alot on the legal front this week, despite the continuous chatter about the IVF blunders over in the UK, as I commented on this week in my blog entitled Embryo Mix-Up, Resulting Abortion, and Adequate Justice?.   But, I do not want to beat a dead horse, so today's singular topic is sperm donation.

California - The Ninth Circuit has determined that posthumous conception DOES NOT entitle one to survivor benefits.  In a case involving a 10 year old girl, her mother was trying to get Social Security Survivor Benefits for the girl who was conceived via sperm extracted from her just deceased husband in 1995.  

"The 9th Circuit Court of Appeals ruled Wednesday the child, Brandalynn Vernoff, was not dependent on her father at the time of his death. In California, dependency is determined by the parent-child relationship rather than the marital status of the parents, according to the decision."

Further, the article stated, "

James Raetz, one of Gabriela Vernoff’s attorneys, said California has a system set up to protect sperm bank donors, and this case is an unintended consequence of the law.

Bruce Vernoff’s sperm was removed after his death, and there was no evidence of plans for a birth after the father’s death, according to court documents.

“That’s the big distinction,” Raetz said. “The court really hung on that.”

However, Raetz said, the couple did have plans for a baby.

“No matter what, she’s a single mom trying to raise her daughter,” he said."

Interestingly, I did not in another blog on this issue, that in Arizona the result may have been different. 

"In California, dependency is determined by the parent-child relationship rather than the marital status of the parents, according to the decision."

"While her appeal was pending, the Ninth Circuit decided Gillett-Netting v. Barnhart, 371 F.3d 593 (9th Cir. 2004), which held that a set of posthumously-conceived twins were the deemed dependents of their biological father and entitled to survivor benefits.

The administration subsequently issued an “acquiescence ruling” to the decision, noting that in the Ninth Circuit a child must be biologically related to the insured and the insured's child under applicable state law to be a deemed dependent.

Writing for the appellate court yesterday, Senior Judge Cynthia Holcomb Hall explained that Gillett-Netting was based on Arizona state law, which recognizes "[e]very child [as] the legitimate child of its natural parents," but that California law does not equate natural parent status with biological parenthood."

"So, Gabriela tried to invoke "equal protection". After all, Bandalynn would have "rights" in Arizona she doesn't have in California, and other children in California get survivor benefits, but the court didn't go for it. "

What are your thoughts on this one?

Also, don't forget about registering for our conference - Erickson Law and Conceptual Options, a Center for Surrogacy & Egg Donation Announces European Conference on Surrogacy & Egg Donation  at http://www.surrogacy-eggdonation.com/geneve.convention.html

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Science Daily  posted a great article today that is food for thought for all of us in this field, as well as those participants in third party reproduction, whether it is the sperm donor, the egg donor, the embryo donor, the parents or the children themselves. 

It appears that the research points to a positive end result, but judge for yourselves.

"The study in Europe's leading reproductive medicine journal Human Reproduction, found that parents set out to find their children's donor and other donor siblings through feelings of curiosity and a desire to enhance their children's sense of identity, and without expecting any very close contact. However, once they had identified the donor and their children's donor siblings, they not only found the experiences of contacting and meeting the donor siblings very positive, but in many cases formed close and continuing bonds."

The article continues, "One of these papers is an editorial commentary by Dr Pim Janssens, an associate editor of Human Reproduction. Writing about Dr Freeman's study, he says: 'Overall, these findings suggest that knowledge of donor sibling families is a good thing, and that disclosure of the donor identity makes sense, and need not be a problem. They also suggest that for many parents and children, having only information about donors is not satisfactory – real encounters are the ultimate desire. Unexpectedly these findings might also lead us to question the importance of a common family history for the creation of 'family feeling'. After all, none of the donor families calling their donor sibling relatives shared anything but genes. Nonetheless, many said they felt intuitively bonded.'

Click Here for the Complete Article

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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The octuplet "mess" will just not want to go away, especially now with a sperm donor claiming to be involved in the mix as shown on Good Morning America.

However, there were several articles over the last few days that I think will help everyone take a look at the real costs of multiples births, as well as how this one case may end up forcing the industry to take a good look at itself. 

The first one is through the New York Times, and it takes a hard look at the fertility industry.  They think that the octuplets' birth is a real wake up call:

"The American Society for Reproductive Medicine, the association of fertility doctors, even adopted guidelines in 2008 encouraging the transfer of only one embryo for women under 35, and no more than two, except in extraordinary circumstances. The guidelines allow more for older women, up to a maximum of five.

But unlike some other countries, the United States has no laws to enforce those guidelines. The Centers for Disease Control and Prevention has a surveillance system that collects data on fertility clinics, but reporting is voluntary and there are no government sanctions for not reporting.

As a result, experts say many doctors are still implanting too many embryos to increase the chance of pregnancy. Only 11 percent of in vitro procedures in the United States involve single embryos, according to 2006 data from the C.D.C."

Click Here for the Complete Article

Furthermore, in Newsweek, an article by Dr. Mark Evans talks about the other side of multiple births - selective reduction.  He states the following:

"When I first heard that a California woman had given birth to octuplets after undergoing in vitro fertilization, I couldn't believe it. As the details of Nadia Suleman's story emerged, it became only more incredible. As it turned out, a clinic transferred six embryos (two of which later split into identical twins) to Suleman, who had six children already, meaning she was extremely fertile. I have nothing against IVF. More than 2 million women worldwide have children because of it. But with the increase in fertility treatments, the U.S. birthrate of twins has more than doubled in the past 30 years. Overlooked in the happy news, though, are the troubling surges in neonatal deaths, developmental disabilities and other long-term problems.

For those reasons, doctors prefer to avoid multiple births. But with each cycle of IVF costing more than $10,000, there's enormous pressure to get patients pregnant—fast. Guidelines of the American Society of Reproductive Medicine and the Society of Assisted Reproductive Technologies say that in women under 35, usually only one or two embryos should be transferred to the uterus in any cycle. The U.S. average is 2.4. A third of such pregnancies result in twins, and 4.3 percent yield triplets or more. In women over 35, the overall pregnancy rate falls dramatically, and the proportion of multiples goes up."

He goes on to talk about the criticism that he receives regarding selective reduction as a solution in some cases:

"Of course, selective reduction can be an agonizing decision for a parent, but most of the couples who come to me have had a longstanding infertility problem. For them, selective reduction is just one more hurdle to deal with. But they are better able to cope when they know the facts: a woman with a quadruple pregnancy has about a 25 percent chance of losing all four babies, but she can decrease the loss rate to about 5 percent by reducing to twins. The risks of prematurity, cerebral palsy and genetic abnormalities (if tested) are all reduced, too.

Reduction will always be controversial. A woman has an abortion because she wants—for whatever reason—to not have a child. But women who have reductions are often desperate to have children. In high-risk situations, reduction may be the best way—sometimes the only way—for that to happen. I realize that in the minds of pro-lifers, this reasoning is flawed. But if performing this procedure means that couples who have suffered years of anguish can have their own healthy children, I'll take all the criticism I get."

Click Here for Complete Article
 

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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A. Missouri – it appears that the Missouri legislature, headed by Cynthia Davis. In her bill (HB355) she is attempting to ban all anonymous donation (egg and sperm) in Missouri and give all donor-conceived offspring the right to access the donor’s identity at age 21.          In fact, she wants the child’s birth certificate reflect the biological parent’s name (yes, she called the donor a parent) and the donor parent’s name as well. She is not intending to create any legal relationship between donors and the offspring, but the use of the word PARENT is extremely disturbing. What do you think?

Click Here for the information on this bill HB355

Blog On Bill HB355

B. Octuplet Case – the ASRM is now considering to kick the octuplet doctor out of the society. What affect do you think this will really have? And, with his new case of quadruplets, why do patients keep seeking him out for treatment, especially with his (un)success rates?

Click Here for an Article on this Case in WSJ

Click Here for an Article on this Case in Union Tribune

Click Here for an Article on this Case in New York Post

C. India Surrogacy & a Legal Warning – I read an informative article on a warning to couples/individuals going to India for a surrogate mother. The article discusses what I have guessed all along, that pursuing surrogacy in India is still a risky process because there are still no comprehensive laws covering the practice. I am always concerned when people cut corners when they are in such a vulnerable and desperate state of mind. What do you think?

See article at www.theage.com.au

Theresa M. Erickson, Esq. www.ericksonlaw.net

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In conjunction with ASRM's meeting last week, a report was released stating that pressue for open-identity sperm donation is building here in the U.S.:

SAN FRANCISCO, Nov. 14 -- Studies of people conceived with donated sperm suggest that many do not support the practice of anonymous sperm donation.

Roughly a third of people who know they were conceived by open-identity sperm donors make a request for the donor's identity by the time they turn 20, according to the world's first study on this subject.

However, it is likely that other offspring will make the request at an older age, predicted Joanna Scheib, Ph.D., a professor of psychology at the University of California, Davis.

In addition, they provided action points as follows:

Action Points  

• Explain to interested patients that most donor-conceived children want information about their donor's identity. 
   
• Note that this information was published as an abstract and presented orally at a conference. These data and conclusions should be considered to be preliminary until published in a peer-reviewed journal.

        Click Here for the Complete Article

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For the first time in Vancouver, a class action suit was brought to attempt to change the laws regarding sperm donor’s anonymity last week. The plaintiff is Olivia Pratten, the daughter of an anonymous sperm donor who is attempting to get information about her biological father before the medical records are destroyed.

Currently, the laws in Canada are that gamete donor’s medical files can be destroyed after six years;  however, Pratten in her suit is attempting to overturn this law so that she may learn pertinent medical information. Additionally, Pratten is arguing that this law violates the rights of those conceived using gamete donation.

On Tuesday, a British Columbia judge issued an injunction to stop the destruction of any medical records related to artificial insemination. This is of course being appealed as we speak. However, if this decision is to be upheld what would that mean for the donor’s anonymity? Could Canada eventually become like the UK where donors are not anonymous? Also if that were to happen, would there be a decrease in those willing to donate their gametes?

Click Here for Link

Click Here for Link

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Fertility and Sterility magazine recently published physiological research done in Israel regarding single mothers who have conceived children through the use of both a sperm donor and an egg donor. The team of researchers from the Hebrew University of Jerusalem wanted to look at single women from age 36 to 50 who conceived children using the assistance of an egg donor and sperm donor and determine whether or not they would tell their children how they were conceived and if the children exhibited any emotional and/or behavioral difficulties.

In Israel the identity of all egg donors and sperm donor are kept confidential by law, which means the children would not be able to find out that they were conceived via egg and sperm donation without their mother’s informing them. The researchers found that most of the women planned on telling their children that they were conceived through the use of a sperm donor by the time they turn 18, but were most likely not going to inform them that they had also been conceived with the use of an egg donor.

I wonder if this has something to do with societal and cultural ideas about motherhood and familial bonding, yet the research did not go into this. Additionally, the study also revealed that there was minimal, if any, impact on parenting and the children’s development through the use of assisted reproduction. What are your thoughts?

Click Here for Complete Article

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Recently, the Third District Court of Appeals in Sacramento ruled on the disposition of a dead man’s sperm. The case, which began in late 2005, followed from the death of Joseph Kievernagel who had deposited sperm for him and his wife to use in their attempt at IVF beginning a month before his death.

However, after he died, his wife Iris sought custody of the sperm that he had deposited in order to become pregnant with his child. A Superior Court judge refused citing the fact that Joseph had checked a box on their clinic’s consent form that said that his sperm was to be discarded upon his death. Iris appealed this decision with the Third Circuit Court of Appeals, which handed down their decision recently stating that Joseph, as the donor, “had the sole decision-making authority as to the use of his sperm for reproduction.”

This ruling is a milestone for the field of reproductive law in that it provides courts with much needed guidance as to whether or not the informed consent contracts should stand as a legally binding document.

Click Here for Complete Article

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A sperm donor whose case was lost at the Kansas Supreme Court has appealed to the US Supreme Court.  It is the first case of its kind, as this is the first time that a court has required that there be a written agreement between the Parties.  I am interested to hear what others have to say.  See the articles below:

A.  http://cjonline.com/stories/031808/bre_supremecourt.shtml

By Michael Hooper

The Capital-Journal

Published Tuesday, March 18, 2008 at 11:55 a.m. CDT

Attorneys for a Topeka sperm donor have appealed his paternity case to the U.S. Supreme Court.

B.    http://www.kansascity.com/news/breaking_news/story/537767.html

In a 4-2 opinion on Oct. 26, the Kansas court said a state law that doesn't give sperm donors any parental rights unless there's a written agreement is indeed constitutional. The court said the decision upholding the 1994 law was the first of its kind in the nation because no other state has ruled on a provision requiring a written agreement between mother and donor.

"This is a very significant case, not only for the world of fathers' rights, but also for the rights and fair treatment of children," said Jeffrey Leving, a Chicago attorney and national parents' rights advocate representing Hendrix. "Many fathers are criticized for not being there. Here we have a father who wants to help, but he was cut off at the knees."

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This is definitely good news for all of us.

HARRISBURG, Pa. -- A woman who promised a sperm donor he would not have to pay child support cannot renege on the deal, the Pennsylvania Supreme Court ruled.

The 3-2 decision overturns lower court rulings under which Joel L. McKiernan had been paying up to $1,500 a month to support twin boys born in August 1994 to Ivonne V. Ferguson, his former girlfriend and co-worker.

"This court takes very seriously the best interests of the children of this commonwealth, and we recognize that to rule in favor of (McKiernan) in this case denies a source of support to two children who did not ask to be born into this situation," Justice Max Baer wrote in the majority opinion issued last week.

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