As the legal clock ticks, the California class-action lawsuit regarding the rules and regulations surrounding egg donor reimbursement continues to escalate. In addition to legal analysts speaking up about donor price-fixing, former egg donors are chiming in.
The lawsuit is aiming to get retribution from the American Society for Reproductive Medicine (ASRM) and the Society for Assisted Reproductive Technology (SART).
The lawsuit alleges an illegal price-fixing agreement in violation of the United States antitrust laws. Former egg donors are voicing how their fertility clinics set impenetrable boundaries capping their compensation at $10,000.
Former egg donor and journalist, Raquel Cool, wrote a commentary on Fortune.com describing how she replied to an egg donor ad from CraigsList.
Upon meeting with the agency, she inquired about the “up to” $10,000 reimbursement. The agency owner told Cool, “Let’s be clear: you are not selling your eggs. You are donating them.” She continued, “The money is an honorarium—for your time and effort.”
Cool described the verbal exchange as contradictory. The same woman who posted the ad reading “EARNING THOUSANDS” on the internet seemed to be chiding Cool for her focus on earning money, and negotiating the $7,000 Cool was offered appeared not to be an option. However, since 2011, when Cool became an egg donor, much has transpired in the industry. Cool writes, “This year, two groundbreaking court cases may bring transparency to the $80 million egg donation market. Back in January, the U.S. Tax Court weighed in on a case brought forward by Nichelle Perez, an egg donor who argued that the $20,000 she received for her egg donations should be excluded from her gross income and exempted from taxes owed.” Perez lost her case, and the compensation from her egg donations was declared taxable income. Circling back to ASRM and SART, Cool wrote, “When I was told that payment should not exceed $10,000, the egg broker cited the American Society for Reproductive Medicine (ASRM). The ASRM has issued guidelines stating that paying an egg donor more than $10,000 is ‘beyond what is appropriate’ and paying $5,000 or more requires ‘justification.’”
Cool went on to say that she is backing this lawsuit. In her opinion, “the wishes of egg donors have been ignored for a very long time.” For Cool, it is more than just the monetary compensation that is a lingering issue in the realm of egg donation. She believes that the health and wellness of donors should be a more relevant focus.
From an egg donor perspective, Cool brings fresh and valid opinions. Here is my legal view.
It is true that ASRM and SART have guidelines stating that egg donors should receive no more than $10,000. While I cannot speak for ASRM or SART, it appears the intent behind this is to prevent coercion in the industry.
With that said, I think that some agencies and medical practices with egg donor programs took a very hard-line stance. They refused to pay more than $10,000 no matter what the circumstances were.
However, other agencies and egg donor programs allowed the egg donors the flexibility to base their fees on a multitude of factors including experience, success, background, and other variables.
While the intent of ASRM and SART was respectable, I do think the $10,000 guideline does not fit all cases and all situations. I also believe it’s time for a revision since those guidelines have been in existence for more than a decade without any upward adjustment. Perhaps it’s time to raise the cap on egg donor compensation to $15,000 or not set one at all?
Whatever the outcome of this case, it’s going to be interesting to watch it unfold.Read More
The recent signing of three bills by California Governor Jerry Brown has bolstered equality for the LGBT community. Following intense lobbying and emotionally driven protesting, the rights of gay individuals and couples are making strides in a positive direction.
So many Californians and others around the nation commend Governor Brown for “breaking the silence” to help end discrimination aimed at the LGBT community.
One of the bills which passed the governor’s desk amended the laws that dictate the legal course in assisted reproduction. The bill helps both the gay and non-gay communities.
In The Advocate, Trudy Ring writes, “Assembly Bill 960, authored by Assembly member David S. Chiu, provides that unmarried couples using assisted reproduction to become parents will be recognized as such on the same terms as married parents from the moment their child is born; removes the requirement that a doctor or sperm bank must be involved when using assisted reproduction in order to ensure that the donor is not a parent; and provides clear direction as to how egg donors should be treated under California law.”
This is an enormous and positive change for many couples, as the bill is not only progressive but also incredibly thoughtful.
This new legal platform will take effect on January 1, 2016.
Ring continues, “Previously, the law did not mandate parental recognition for unmarried couples, notes NCLR, which supported the legislation along with Equality California and the Our Family Coalition. The new law is also important to LGBT families because many of them use home insemination rather than sperm banks.”
The last portion of what Ring wrote is a huge win for lesbian couples and single women hoping to conceive within the comfort of home, rather than surrounded by the sterility of a doctor’s office. Whether married, unmarried or single, they can conceive in privacy and not be bound by the “red tape” of sperm banks and fertility clinics.
While this brings women into a new era of reproductive freedom, it doesn’t eliminate the need to consult with a third-party reproductive attorney. It’s highly recommended that parties to this type of informal donor arrangement draft comprehensive contracts regarding the right of parentage of the mother(s) and releasing the sperm donor of any legal rights or obligations to the child.
In cases of reproductive law, err on the side of caution and be proactive in delineating and formalizing parental rights from the very start, as it’s much better than being forced to be reactive when faced with a legal battle due to ambiguous paperwork at the time of the sperm donation.
While AB 960 spoke volumes as to the rights of the LGBT community, here are some highlights from the other two bills Governor Brown signed which have also received cheers.
According to Ring, Senate Bill 703 was cosponsored by the Transgender Law Center and the National Center for Lesbian Rights and Equality California.
Ring writes that SB 703 is the, “…first-in-the-nation bill requiring that companies doing significant business with the state provide the same benefits to their transgender employees that cisgender (nontrans) workers receive,” thereby helping bridge the gap in equal health coverage.
Lastly, AB 959, titled the LGBT Disparities Reduction Act, was also signed. This legislative bill calls for state public health agencies to collect information on sexual orientation and gender identity in the course of collecting other demographic data in order to determine where there might be disparities in healthcare provided to the LGBT population.
With the help of Governor Brown, the LGBT community has its own distinct voice reminding everyone that all people are created equal.Read More
When individuals or couples turn to surrogacy and egg donor agencies, they have likely already endured a painful and emotional upheaval in their lives. Conceiving a baby naturally never came to fruition. By the time they seek the help of an agency, so many have had numerous failed fertility attempts and have been wounded on so many levels.
With the help of a surrogacy agency, these wounds can heal through a renewed hope of parenthood.
However, a Los Angeles County business owner victimized more than 40 clients who searched for this hope, along with the women who wanted to help these clients have their babies.
In the City of Glendora, the owner of Miracles Egg Donation, Allison Layton, 38, who also went by the name of Allison Jarvie, was sentenced for swindling more than $250,000 from intended parents, surrogates, and egg donors. Layton’s prison term is for a year and a half, which the judge mandated be followed by three years of probation.
A restitution hearing is on the docket for October 22.
According to City News Service she pled guilty in February to federal wire fraud.
They reported that Layton, “…claimed to handle the logistics of the donation and surrogacy process, and operated it out of her living room, according to the U.S. Attorney’s Office.” They continued, “Between August 2008 and January 2012, would-be parents — who in the surrogacy and egg donation world are known as intended parents — paid thousands of dollars for egg donation and surrogacy services that Miracles promised to coordinate, federal prosecutors said.”
Funds that Layton collected from clients were misused. Rather than depositing them into an escrow account where monies could be utilized for cost-related expenses for surrogacy and egg donation, Layton used the monies as she wished, including spending approximately $60,000 of misappropriated funds on her own wedding.
Sadly, many intended parents did not receive all of the services for which they had paid, and egg donors, surrogates, and attorneys often were not fully compensated for the services they had provided.
“When the donors, surrogates and intended parents sought to recover their money and costs, Layton would lull them into believing they would be repaid through false assurances that payments had already been made or would be made soon, court papers show,” the media publication wrote.
This story grows more painful when hearing from the victims.
One is a surrogate who spoke out on CBS Los Angeles. Bethany Torres, 30, decided to sign up with Miracles Egg Donation in 2011 as a repeat surrogate.
According to Torres, she was receiving monthly payments, and suddenly they stopped.
As reported by CBS Los Angeles, “She [Torres] received only $19,000 of the $50,000 she was owed and soon found out that the FBI was investigating Layton for defrauding other surrogates, egg donors, would-be parents, and investors.”
In a statement Torres said Layton should be “ashamed of herself.” She was also candid in stating that she didn’t think the sentence time was appropriate.
“For the amount of money that she stole and the lives that she destroyed, a year and a half is nothing,” she told reporters. “But it is something.”
On a personal note, Layton owed me approximately $5,000 in unpaid legal fees. Fortunately, after much persistence, I was paid. I also worked with many egg donors who underwent egg retrieval, only to not receive the reimbursement Layton had promised would be held for them in trust. My donors finally did get paid, but I had one surrogate whose Australian intended parents fell victim to Layton and lost all the money they had invested into the surrogacy process, which was approximately $25,000. Ultimately, they found a reputable agency in California that was kind enough to deeply discount all services provided to them, and the couple welcomed a child into their family this year.
What Layton did was awful. She robbed the dreams of those who wanted to be parents after struggles of infertility, cancer treatments, and so much more, and took advantage of the surrogates, egg donors, and others to whom she owed large sums of money.
For those looking for a surrogacy agency, please get referrals from fertility specialists and third- party reproductive attorneys who know top-tier agencies nationwide.Read More
It’s estimated in the United States that one in eight couples will battle infertility. And every year, more than 1 million women endure fertility treatments. A great number of women suffer in silence because speaking about their condition causes more pain than they can bear.
A survey championed by Schering-Plough uncovered that 61 percent of women undergoing fertility treatments do not share their experience with family and friends. The survey also revealed that for women dealing with infertility, it was easier to tell those inquiring about their “future family building plans,” to say they didn’t want children versus telling the truth.
For many, being candid about fertility struggles and failed treatments is like walking down a path of emotional landmines.
Recently celebrities such as Jamie King and Kim Kardashian West have opened up about their fertility struggles. Their own personal stories transcend to other women who are fighting the fight. Through their words, the shroud of silence is being lifted.
Earlier this year in PEOPLE Magazine, Jamie King, 36, opened up about her fertility challenges.
“I was hiding what I was going through for so long, and I hear about so many women going through what I went through. If I’m open about it, hopefully it won’t be so taboo to talk about it,” she told PEOPLE.
Like many other women, King was diagnosed with polycystic ovarian syndrome (PCOS).
PCOS can cause endometriosis, infertility, ovarian cysts and imbalanced hormones.
In an effort to help other women, King decided to come out about her struggles in hopes that it could engage dialog among women undergoing the same heartbreaking issues and above all, raise awareness about infertility.
The magazine reported, “Finally, after five miscarriages, five rounds of in vitro fertilization (IVF) and 26 rounds of intrauterine insemination (IUI), good luck brought the Hart of Dixie star a bit of unexpected news: She had naturally conceived her first child with husband Kyle Newman.”
King told PEOPLE that when she got pregnant, it was the best thing in the whole world.
“I had never felt so grateful, happy and elated,” she said.
Another celebrity who has been frank about her emotional infertility is Kim Kardashian West who struggled to conceive her second child.
She told ET Online, “I didn’t know that I was going to be so open with [my fertility challenges].” Kardashian West continued, “But meeting people at my fertility doctor’s office who are going through the same things I’m going through, I thought, ‘Why not share my story?’ It’s been really emotional. One doctor told me I would need my uterus removed after I had another baby — I could only have one more.”
She was also receiving conflicting information: A surrogate would be needed versus not requiring one. Kardashian West was on an emotional roller coaster that a great deal of women encounter every single day.
She told the online media publication, “There are definitely times when I walked out [of the doctor’s office] hysterically crying and other times when I was like, ‘Okay, everything’s looking good, it’s going to be this month!’”
Staggering results from a study conducted at Harvard Medical School uncovered that women dealing with infertility mirrored a similar depression to those diagnosed with cancer. Yes, while infertility cannot cause death like cancer, the sadness surrounding the disease can be utterly debilitating.
With the help of celebrities “coming out” about their infertility, many activists see the potential of fueling the cause and awareness efforts.
While there are fertility success stories, in other medical cases, there are not. By recognizing the disease of infertility, individuals and couples can get the support they need and discover other family building pathways.Read More
Since July, commercial surrogacy in Nepal has undergone immense changes. The most recent news from the top court in Nepal has mandated a stop to all surrogacy practices. Throngs of individuals and couples have relied on Nepal to help build their families so this declaration has many concerned.
And this is completely understandable.
It’s important to remember this is an interim order issued by the Supreme Court of Nepal. By its very nature, the order is temporary; however, it was instituted as the country waits on the ruling on the petition to ban surrogacy.
When the story broke out on the Associated Foreign Press (AFP) and Yahoo News learned of it, the preliminary information reinforced how Nepal has been a leading destination for foreigners particularly because of the lower expenses in hiring a surrogate.
Yahoo reports, “The practice is controversial, with critics saying it exploits the poverty of women.”
According to news sources, although Nepal has no laws on its books regulating surrogacy, the government last year allowed foreign women to serve as surrogates in Nepal but forbid their “locals” to take part in it.
While surrogacy in Nepal is in a state of flux, certainly individuals and couples who have pregnant surrogates and those who have already financially invested to find a surrogate are worried about what the future holds.
Here is some information which may be of help.
First off, the injunction does not affect those who already have surrogate pregnancies. However, in the same breath, if one has made initial payments during the early stages of finding a surrogate, it is recommended to request a refund until surrogacy in Nepal is settled.
Some have decided to reinvest those monies to a county where surrogacy is legal and the framework for parental rights is in place, such as the State of California. While costs may be somewhat higher in the west, intended parents can have peace of mind.
Others are waiting patiently to see which way Nepal will rule with commercial surrogacy.
The individual who filed the original petition was Prabin Pandak. Her hope was that this lawsuit would halt new surrogate commercial contracts. And it has.
“Women should not be a subject of trade, neither should a child,” Pandak said. She added, “Nepali women are not allowed to be surrogate mothers, but they are misrepresented as Indian and used for surrogacy.”
Advocates of surrogacy are wondering if Nepal’s actions are somehow a domino effect of the new laws in Thailand. Like Nepal, Thailand was a highly sought destination for surrogacy for both heterosexual and gay couples.
However, following the unfortunate Baby Gammy incident last year, public opinion became the impetus for Thailand to crack down on commercial surrogacy practices. Limitations have evolved, and to date, lawmakers are only allowing local heterosexual couples the right to non-commercial surrogacy. This means that a surrogate can no longer be part of a financial arrangement. If a woman is caught receiving monies she could be imprisoned for up to a decade.
Naturally, Thailand’s decision has many wondering which way Nepal will lean.
A spokesperson for the Supreme Court of Nepal, Nahakul Subed, told AFP, “There are no laws regarding surrogacy… it raises many constitutional and legal questions.”
While a number of people seeking to build their families through surrogacy are incredibly disappointed, the issues raised in this petition were relevant. So, it may be that surrogacy will be allowed to continue in Nepal, but I would advise people not move forward in that country until the laws surrounding surrogacy are established.
Parents of donor conceived children appear to be split in their decision of whether to tell their children the truth. Understandably, some parents are not comfortable sharing with their children that they were a gift of compassion. Conversely, in a trailblazing era of egg donor awareness, truth is being touted.
Every parent’s situation is unique, and clearly the consensus is split.
Nancy Hass, a writer for Elle, crafted an emotional article entitled, “To Tell, Or Not To Tell, Your Egg Donor Baby.” Hass shared her hard road of infertility and how her daughter was born with the help of a surrogate this year.
She interviewed a bevy of individuals for her piece, including Barry Stevens, 54. Stevens is regarded for his documentary, “Offspring,” in where he is searching for his biological father. Stevens was conceived through sperm donation.
While sperm and egg donations obviously differ, the need for older children wanting to know who their biological parents are remains the same.
Stevens goes on to say that keeping such secrets can destroy a family and how it was a “barrier that damaged intimacy” in his family unit. In the documentary he asks his mother what it was like to keep the secret for all those years. Her answer: “It was horrible.”
Another woman Hass interviewed was adamant that she would not tell her daughter about her donor conception. “It’s nothing more than a blood donation as far as I’m concerned,” she said.
Hass pushed more as to why this would be kept a secret.
“Look, we don’t plan to tell our daughter because we don’t think it’s important, period.”
The people in the article conveyed emotionally charged points of view. But how do the courts look upon this in the third-party reproductive century?
Currently, there are no laws in the United States that require disclosure to a child created via an egg donor or sperm donor as there is in Canada and the United Kingdom. In those countries, there is no anonymous egg and sperm donations, which may be why there have been some reports of a two-year wait for discovery in the United Kingdom.
Most children want to know the story of how they were conceived, and we understand that. But there are parents who never want to tell for many reasons. Some may stem from cultural issues and some out of fear – that their child will be treated differently by their friends and family that could lead into an identity crisis of some sort.
For whatever reason, there should be sensitivity on both sides.
Hass then interviewed Patricia Mendel, a psychologist who specializes in third-party reproduction. Depending on the case, she describes to Hass how the sessions can be rough.
“The child already may have been born, may be getting old enough to understand, and suddenly parents realize that they aren’t sure what to do,” she said.
Mendel then dug deeper mentioning a more fundamental trigger which is perhaps the shame of having been infertile.
She tells Hass, “Maybe they didn’t find a person to love until they were 39, or maybe it’s a second marriage and there are other kids. Maybe the husband is much younger. Whatever it is, they have a lot of problems acknowledging that they couldn’t use their own egg.”
Hass then explores her own feelings having used an egg donor, a surrogate, and her husband’s sperm to create their daughter. While she fantasizes of not telling, she knows she will.
“I understand the lure of the lie,” she said. “She didn’t get my eyes, but what I’m hoping is that by giving her the truth, I can help her see.”Read More
Recently, legal cases regarding frozen embryos have garnered media attention. Those wrangled into lawsuits never thought they’d be in this situation. In fact, it was the furthest thing from anyone’s mind during those initial visits at the fertility clinic. At the time, all they wanted was a baby.
But the legal landscape is changing.
Someone who desperately wants a child doesn’t think about a divorce, a surplus of frozen embryos, and the “what if” scenarios. People are in the “here and now” and want to build a family.
It’s that simple.
What isn’t simple, however, is looking past the “here and now” and to an unused inventory of frozen embryos.
In Jennifer Ludden’s article, “A Divorce, What Happens To A Couple’s Frozen Embryos?” she takes readers through many considerations. At the start of the article, she highlights the Dr. Mimi Lee and Stephen Findley case – a legal battle many have been following closely.
For those unaware of this case, the brief recap is that shortly after the couple was married, Dr. Lee was diagnosed with breast cancer. Knowing her treatments would render her infertile, she underwent egg retrieval and with Findley’s sperm donation, embryos were created.
The couple is now divorced. And Dr. Lee wants to start a family with these embryos and Findley does not.
While a consent form at the clinic indicated that the embryos would be destroyed in the event of a divorce, Dr. Lee and her attorney are fighting back. A consent form does not have the same weight as a legal document.
“Those embryos are at the heart of a court case that will soon decide a very modern problem: Which member of a divorced couple gets control of their frozen embryos?” writes Ludden.
The reporter then leaned on law professor Judith Daar of Whittier Law School. According to Daar, while the consent form may help, it’s not a guaranteed judgment, especially in this case.
And Daar is absolutely on point with this.
While the ruling in this case should come down fairly soon, either way, it’s sure to be appealed. If you look at the history of the cases, the only time the court has allowed one side to use the embryos to achieve a pregnancy is like the Karla Dunston case.
Just last month, the Illinois appellate court ruled in favor of the Chicago woman who is in cancer remission. Attorneys and legal analysts describe the case as a landmark ruling over the custody of frozen embryos
The Dr. Lee legal battle mirrors the Dunston case.
For Dunston, it was her only chance to have a genetic child, and these embryos were specifically created with that in mind before cancer treatments.
In both cases, these women underwent fertility treatments and an egg retrieval procedure prior to cancer treatments which would trigger infertility.
Like Dunston, Dr. Lee has a gripping plea to the judge.
Her attorney, Peter Skinner has said, “My client at this point in time is 46 years old, and just simply as a matter of her age she is virtually infertile.” He added, “She really doesn’t have any other realistic option to have a biologically related child, other than to use the embryos that she created for that very purpose.”
Daar then offered another resolution claiming that technology caused this challenge and will more than likely provide the answers. She stated that future considerations may be for a couple to freeze unfertilized eggs and sperm which can be stored in a cryobank.
“And if they break up, he can have his sperm, she can have her eggs, and they can dispute other matters in the relationship.”
That’s an interesting solution and there’s more to come, for certain. But in the meantime, it cannot be stressed enough that a consent form at a fertility clinic may not be binding enough – legal documentation may need to take precedence.Read More