Last spring, a judge awarded Karla Dunston, a resident of Chicago, custody of frozen embryos. The judgment spurred an appeal. Standing on the opposite side of the appellate courtroom trying to overturn this ruling is Dunston’s former boyfriend, Jacob Szafranski.
Before diving into the present, here is the backstory.
These embryos were frozen a few years ago. What prompted the decision was Dunston’s lymphoma diagnosis. Realizing her cancer treatments could trigger infertility, she turned to her “then” boyfriend, Szafranski, for help. He agreed to donate sperm.
Lauren Jiggetts, a reporter for NBC Chicago quotes the former boyfriend stating, “We were in a romantic relationship and we had known each other for a while, and of course I was concerned about supporting her in whatever way I could.”
One year later, the relationship ended and Szafranski had a change of heart about the embryos.
Szafranski continues to state in this article from May, “In reading the consent and deciding to go ahead with everything, I really thought that was what my understanding of the situation was, that my consent was needed at the time of their use.” He continued, “Life changes, your feelings on things changes, your position on the world changes.”
In Jiggetts’ piece, she quoted a portion of the judge’s ruling which drove the appeal. The judge said that Dunston’s, “desire to have a biological child in the face of the impossibility of having one without using the embryos outweighs Jacob’s privacy concerns, which are now moot.”
It was also revealed that Dunston had no intention whatsoever to request any financial support from Szafranski.
Her attorney, Abram Moore stated, “She simply does not want him to stand in the way of her very last chance to have her own biological children.”
On the flipside, Szafranski claims this legal battle has nothing to do with money or the threat of financial support. His objection leans in the direction of moral grounds claiming how he does not want a “child brought into this world,” against his will.
Now, the Illinois Appellate Court heard the case.
NBC Chicago reporter, Sarah Schulte, recently wrote in her article, “Szafranski’s legal argument before the Illinois Appellate Court is based on a consent form Szafranski and Dunston signed at the fertility clinic the day after he verbally agreed to help.”
Schulte quotes his attorney Brian Schroeder saying, “This form has a provision that states no use can be made of embryos without the consent of both parties.”
Dunston’s legal representatives are standing their ground.
According to Schulte, the appellate court heard their side of the argument highlighting, “while Szafranski has the right to change his mind about whether to donate sperm, he chose to donate it for the purpose of helping Dunston have children.”
Schulte continued, “Her lawyers say Szafranski promised Dunston several times that she could use the embryos for that purpose and insist she is not forcing Szafranski into parenthood, and is asking Dunston be declared a sperm donor with no legal or financial obligations to any resulting child.”
While a ruling is on its way, here’s my point of view.
I don’t think Szafranski, or anyone, should be forced to be a parent. Conversely, since they aren’t married, isn’t he a sperm donor without any rights? For example, in California, if you’re unmarried you need to have an agreement in writing that you are a parent. If you don’t, you aren’t.
A good example of this is the Jason Patric case. In this situation, they were unmarried and they didn’t have a written agreement that Patric was not a sperm donor. However, after the baby was born, Patric spent time with the child and his girlfriend, making an argument he is a parent under “presumed” parenthood.
In this case, we are dealing with embryos, not a child.
The court also should look at the “intent” of the parties when the embryos were created. To me, it appears as if it was Szafranski’s intent was to donate his sperm to his former girlfriend so that a pregnancy could be achieved and a child born.
It appears that the consent forms stated they need their permission to use the embryos. I do have to say that this is a bit unusual because typically embryos can be used for their intended purpose. And here, it was to achieve a pregnancy.
It’s going to be very interesting to see how the appellate court will rule on this case.
Legal experts are calling it a case which may influence a national precedent. And I have a feeling it will do just that.Read More
It appears that Serbia may be taking one step closer toward surrogacy. According to In Serbia, a code is being crafted regarding surrogate motherhood for its Civil Code.
“This means the possibility of concluding a contract between the future mother or father, and a woman who will carry and give birth to their baby. Cash compensation for the service is not predicted,” the article reported.
According to Olga Cvejic Jancic, who holds a position at the Commission to the Civil Code, they were outlining the new code details. Points they wanted to underscore included that surrogacy would be considered upon the following circumstances:
- A method for infertility
- Used if severe health issues would be aggravated through pregnancy
- Used for the prevention of transmitting a hereditary disease(s) to the fetus
Janic goes on to say, “It is anticipated that in the case of surrogacy, fertile cells of at least one of the intended parents shall be used, therefore, he or she will be the genetic parent of the child.”
Conversely, while this new Civil Code is being drafted, The Ministry of Health has a different opinion in the matter.
In the article announcement they stated, “…surrogate motherhood in Serbia is prohibited, punishable by imprisonment of three to ten years and that the Directorate of Biomedicine at the Ministry of Health has not been consulted nor informed of any initiative around recognition of surrogate motherhood.”
The idea of surrogacy in Serbia has two conflicting opinions, and one, with imprisonment ramifications.
While Serbians wait for more details, I wonder if this isn’t happening now because of the turmoil in the Ukraine, which has probably affected the surrogacy business tremendously. I can’t see how Serbia would be more appealing to others seeking a less-expensive alternative to the US, but we will just have to wait and see.Read More
A furry of media outlets are jumping on the Jason Patric Hollywood bandwagon custody battle. Over the months, many have learned this wasn’t an ordinary “sperm donor” situation.
While writers are grappling for new material and different angles, there are some articles floating around on the web which I feel have missed the point completely.
The entire case turned on the fact that Patric became a “presumed” parent after the birth of his child, Gus. Patric took him into his home and referred to Gus as his son. Vacation photographs were taken when Patric, his former girlfriend, Danielle Schreiber, and little Gus went on vacation.
Jason became a parent when he took all those steps.
Yes, the couple may have talked about Patric “maybe” taking part in the child’s life when they did IVF, but if he never saw his son, he wouldn’t be a dad today.
Attorney Sara Cohen’s piece in The Globe and Mail, “When does a sperm donor have parental rights?” was spot on.
She understood the, “far-reaching implications in terms of our understanding of when a sperm donor may also be a parent.”
Schreiber used Patric’s sperm via IVF to conceive her baby, Gus.
They were together for quite some time, but the tumultuous relationship ended in a permanent breakup. When that occurred, Schreiber cut all ties between Patric and her son.
Cohen writes, “Patric turned to the court for help, arguing that he is a parent to the child. Schreiber responded by arguing that under California law, Patric is not a parent but only a donor and therefore without rights to the child.” She continued on in the recap, “At first instance, the court held in Schreiber’s favour, in February 2013, finding that Patric is a sperm donor only and not a legal parent. The court relied on a statute that specifically states that where a sperm donor is not a spouse of the woman using the sperm, without a preconception written agreement to the contrary, a donor is not a parent.”
Following this, Patric appealed and was victorious.
Even though Patric’s and Schreiber’s original intention may have been for him to only play the role of a donor, Cohen reports, this decision demonstrates that a sperm donor can become something more based on post-birth behaviour.
Cohen went on to say, “People who are unfamiliar with the specific details of the case, or at least with the court’s findings of fact, may see this case as cause for concern as it appears to provide donors with parental rights. Of course, many of us, myself included, think it is good policy for donors, parents and donor-conceived children that the law clearly indicate that a donor is not a parent, without something more.”
It’s in this part of the article where Cohen clearly defines that Patric’s case falls under the “something more” category.
Readers of this article are forced to consider that a parent may not merely mean a genetic connection. Another level of “parenthood” is the part that person plays in the life of a child.
As stated earlier in the article, Patric was part of Gus’ life in many ways and instances.
“Arguably, the same finding could be reached even if Patric had no genetic connection to the child,” she writes. “To be clear, Patric’s legal battle is far from over; he now must stand trial and prove to the court that his post-birth behaviour with Gus is sufficient to meet the threshold of a parent.”
While Cohen is an attorney who lives in Canada, she tells her readers not to “underestimate the importance of this legal decision.”
While California law is different from Canada, she notes, Canadians using donors would be prudent to establish the relationship a donor would have after the birth.
And I couldn’t agree more.
I counsel my known sperm donor clients about this all the time. I often have ex-boyfriends donating to their ex-girlfriends and I always tell my intended mothers, “You can negate this contract and make him a ‘dad’ just like Patric became one. If that’s what you want after the baby is born, great, but if not, keep the ex at arm’s length.”
The Topeka sperm donor who has been fighting the state to not be declared a father hit the digital and paper newsstands once again. For those who need a little catching up, William Marotta donated his sperm to a lesbian couple wanting a baby.
The couple placed an ad in Craigslist and Marotta responded.
The state of Kansas is trying to make Marotta pay child support.
In Oct. 2012, the Kansas Department for Children and Families filed a case against Marotta stating he was the father of a little girl, born in 2009. The declared mother was Jennifer Schreiner, who carried the baby
Over time, Schriener and her partner, Angela Bauer split up and are no longer in a relationship.
Immediately, Marotta sought legal representation opposing the state. He never intended to be the father and only wanted to help Schreiner and Bauer in their quest for a baby.
Marotta also states he signed a contract waiving any parental responsibilities or rights to the child.
Still, the state thinks otherwise.
Recently, Marotta’s attorney went to the Shawnee County District Court filing a new motion.
Apparently, the state wants to call an expert witness in the upcoming case. Marotta’s attorney is tossing out legal hurdles to prevent this expert from getting a seat on the witness stand.
The Topeka attorney, Benoit Swinnen, who filed this motion was direct in his legal claim.
On Nov. 18 and 20, a Ross hearing for the case is on the docket. For those new to a Ross Hearing, this is when the court decides if it is in the, “best interest of the child to set aside a presumption of paternity in favor of a third party.”
This sperm donor case has fascinated the media and the public and I hope that Marotta is not declared the father as he is clearly a sperm donor; however, the law is not on his side. Marotta’s attorney is doing all he can to prevent a great injustice.
And I know I’m not the only one in his cheering section.
In Biles’ article, “Attorney Files Motion Block Expert Sperm Donor Case,” she was able to get some hard-hitting quotes from Swinnen.
“Through circumstances I don’t quite understand, the court has jumped in and in an order said the state designated an expert, and I don’t know when or how that came about because I didn’t sign off on it,” Swinnen said.
She went on to write, “Swinnen said the district court lacks authority to designate an expert on behalf of the state, and an expert designation is due 90 days before trial unless otherwise approved by the court. He contends no motion was filed seeking relief from the rules and he never received notification of the expert designation.”
Biles also points out that Swinnen said the hearing date has been set for several months and should be upheld.
In his recently filed motion, Swinnen says the upcoming case should move forward without the need for experts.
Swinnen told the reporter, “All I want is, let’s get the facts and what’s in the best interest of the child. It’s unfair to keep dragging this on and on when we have a trial date.”
Biles did make attempts to get statements from the attorney representing the Department for Children and Families but has been unsuccessful.
No calls have been returned and that’s not a real surprise.
Now, we have to wait and see what legal moves are made next.
Nearly a year ago, a Thai surrogate gave birth to twins to an Australian couple. Months later, the surrogate spoke to reporters, alleging the Australian couple took the little girl, but not their little boy. Yes, I am referring to Baby Gammy.
The headlines lit up cyberspace and news stations all over the world. People across the globe were horrified that a couple would walk away from Baby Gammy who was diagnosed with Down syndrome and a heart condition.
The Australian couple, David and Wendy Farnell, created a scandal. Not only did they bring their daughter home to Australia, but when reporters dug deeper, David Farnell was convicted of sexual child abuse years before.
So you may be asking, “What does this have to do with Australians being denied visas for surrogates in India?”
Well, they may be shying away from the tarnished press of the Farnell Family. India may likely be sidestepping; avoiding the line of fire Thai surrogacy has received over recent months.
While the Baby Gammy case is a rare occurrence, I do have to say that his surrogate mother is doing a brilliant job caring for him. In fact, the baby is thriving under her love and care.
Is it right that Australians, who want to be intended parents, are being denied visas because of the Farnell duo?
No. But there appears to be an allegation against a different Australian couple.
Reporter Stephanie March, of ABC.NET.AU shed more light in her feature story, “Australians Couple Frozen Out Of Indian Surrogacy Industry.”
She writes, “Surrogacy advocates said India had effectively frozen out Australians from the surrogacy industry following recent revelations a child was abandoned in India by an Australian couple.”
This is the first I have heard of this above scenario. Yet again, this is not the norm.
March writes, “In a statement to surrogacy advocates, the Indian Consulate in Sydney said the cause of the current visa delays is over its concern for the welfare of surrogate children born for Australian parents.” The statement goes on to say, “It was recently revealed that in 2012 an Indian surrogate gave birth to twins for an Australian couple who left one baby behind, saying they could only afford to take one child.”
It’s wrong to generalize Australians this way. Due to a family’s actions, other couples yearning to become parents are being penalized.
Sam Everingham from Surrogacy Australia told March, “India has put a freeze on all new applications for new intended Australian parents wanting to engage in surrogacy.” He added, “Couples trying to embark on the surrogacy process are being denied visas, while those who have pregnant surrogates in India are facing long delays in having their visas issued.”
The level of uncertainty and deflated hopes are incredibly discouraging. If only Australia would make surrogacy legal, all of this could be avoided.
Everingham told the reporter, “For those who have got pregnant surrogates we have seen a lot of anxiety and a lot of panic around getting a visa in time for the person.”
These intended parents are in a race against time, doing what they can to get on India soil. As each day passes, the angst increases not knowing what the following day will bring.
Authorities in India are beginning to mandate surrogacy industry regulations. They are asking, “Australia for clearer guarantees that children born under surrogacy arrangements will be granted Australian nationality,” March reports. “The consulate said it will issue visas if those guidelines are met.”
Everingham voiced his worry about the happenings in India. While the situation remains in upheaval, he’s genuinely troubled by the fact that couples may seek surrogacy elsewhere. And this is a problem, he said, for less established industries in other parts of the world which may put all parties at risk.
A closer look into surrogacy in India, Everingham said, shows there is a lot less screening of parents before they engage, and, often no screening at all.
He told March, “There is no guarantee that a child will be able to exit that country.”
According to March, she writes that India has guidelines for the surrogacy industry but no laws to enforce them.
“Legislation to regulate the industry has been sitting in parliament for several years,” she reports. She goes on to write, “Delhi-based surrogacy lawyer Anurag Chawla said until the Indian government enacts laws to govern the industry, problems will continue. The clinics feel they can do anything and said when they are caught that there is no law, so it is a grey area.”
It’s this “grey area” which is so troubling and undoubtedly concerning to all parties involved, including these innocent newborn babies.Read More
Throughout the nation, a state’s position on surrogacy is crystal clear, whereas in others, it can be utterly obscure. Surrogacy is governed at the state level which ultimately means each state has its own constituents and tolerance levels regarding laws they can enact. This is why each and every state’s laws and legislations differ with surrogacy.
A recent article in USA TODAY by reporter Anita Wadhwani wrote a great piece titled, “Vague surrogacy laws can lead to heartache.” This article surrounds the issues occurring in Tennessee. When reviewing Tennessee surrogacy legislation, legal experts are claiming that this state is crawling behind not only in surrogacy laws, but also in fertility and reproductive technologies.
The story goes on to highlight a former Tennessee surrogate mother, who carried a baby for an Italian couple a few years ago, had a change of heart and decided she wanted the baby.
“After years of legal wrangling, the state Supreme Court earlier this month ruled partially in her favor, sending the case back to a Nashville juvenile judge to decide on custody of the girl,” writes Wadhwani. She continues, “The girl is now 3, lives in Italy, speaks no English and has been raised since infancy by the Italian couple after the surrogate’s legal fight to keep her was dismissed by lower courts.”
Wadhwani goes on to write that this is a wrenching custody battle that surrogacy law experts say might have been avoided if Tennessee laws didn’t lag woefully behind.
“Tennessee’s surrogacy law ‘lacks a clear process for persons to create, carry out, and enforce traditional surrogacy agreements,’” the Supreme Court noted in its opinion. “That leaves parties to surrogacy contracts and courts ill-equipped to deal with the complex questions that inevitably arise in this area of law.”
These blurred legal lines have created much sorrow for the parties involved.
Benjamin Papa, the attorney representing the Italian couple told the reporter, “Certainly, it’s complicated to try at this point to establish a visitation schedule if you have a child who doesn’t speak English, has never met the surrogate but does have a biological mother whose rights have never been terminated.”
Papa’s statement is both excellent and jaw-dropping.
If the biological mother’s rights have never been terminated, which is stunning, considering she’s been living with her parents for three years and if the surrogate obtains visitation, she will be a virtual stranger to this little girl.
I’m mystified by this. Yet, because the laws are so vague, I’m not stunned by this mess.
“The battle has been very hard,” Papa said. “They went through the whole surrogacy process in good faith. From their perspective, the surrogate decided she wasn’t going to live up to the bargain at the last minute. They have been very frustrated with her trying to back out of the deal everyone agreed to.”
And it appears that this case isn’t the only one floating around in the courthouse.
Wadhwani reports, “In one Rutherford County case, the surrogacy arrangement went smoothly. There was no conflict between the surrogate and the intended parents. And then the Tennessee Department of Health intervened.” The reporter pushes forward, “The surrogate was implanted with an anonymously donated egg fertilized by the intended father’s sperm. When the couple went to court to establish parentage, just before the birth of their child, state attorneys argued against them, saying that the surrogate must be listed as the child’s mother on the birth certificate.”
The end decision was that the court ruled with state health officials.
Diane Hinson, a Fellow of the American Association of Assisted Reproductive Attorneys shared her point of view regarding this article.
To date, Tennessee remains one of four states which mandat an “intended mother” using an egg donor to become a legal parent after the baby is born.
This adoption process also impacts the surrogate. Hinson said the surrogate, “is on the hook as the legal parent until that adoption proceeding is completed.”
Julia Tate, a lawyer involved in the Rutherford County trial, told reporters she plans to appeal this Court of Appeals ruling.
“There are women using donated eggs every day in Tennessee,” Tate said. “All these surrogates — they don’t want to be named as the mother of the child. All the intended parents want is to be named as the parents. We’re out of step with the nation. Our department of health is out of step with the nation.”
Tate also pointed out that because of this “stepparent adoption process,” the new parents have been unable to receive a Social Security card for their baby and cannot add them to their health insurance plan.
After all the expenses of the surrogacy process, more finances are added on to the tab with the adoption proceedings.
Let’s hope that all this can be rectified in the Tennessee courts so these parents are treated with the dignity they deserve. They have endured and sacrificed so much to have a baby.Read More
When Facebook and Apple announced their willingness to pay for their employees’ egg freezing, the initial reaction was shock. While some employees will no doubt take part in preserving their future fertility, for the most part, the consensus of this broadcast remains quite mixed.
In the Los Angeles Times, reporter, Karin Klein, questioned whether or not this is a work perk.
Her introduction pretty much says it all.
“It’s generous indeed for Facebook and Apple to extend their benefits to include egg freezing for women who want to put off child-bearing. And it might be exactly what some women want. But it’s also a sign of how poorly the U.S. workplace has responded to the needs of families,” she writes.
Klien highlighted that under these new benefits, female employees will collect up to $20,000 for the process.
She goes on to say that egg freezing is no longer considered an experimental procedure. In the same breath, she continues it’s an elective treatment and is not really recommended by the American Society of Reproductive Medicine.
Before the egg retrieval process, a woman must be on a series of hormones prior to the surgery, and sometimes, a short hospital stay is recommended.
Klien writes, “Still, an increasing number of women are expected to want this option. The question is whether they want it because that’s their preference in how their lives unfold, or whether they, as well as men, feel that there is little option if they want to be parents, but also want to succeed at their jobs.” She continues, “The American workplace, especially the realm of high-powered jobs, is particularly hostile to the family. Longer work hours are demanded, weekends are consumed and paid vacations are much shorter than in many other developed nations.”
And Klien is right.
In the Atlantic, reporter, Rebecca J. Rosenjun, reveals some jaw-dropping statistics in reference to maternity leave policies. In her article, WHY NOT HELP FAMILIES? A Map of Maternity Leave Policies Around the World, uncovers staggering information.
“If you’re a woman working in the United States and your employer provides paid maternity leave, consider yourself lucky: Just 11 percent of Americans employed by private industry have access to some sort of paid family leave. For state and government employees, 16 percent can take paid family leave,” Rosenjun reports. “The U.S. federal government provides no paid family leave to its employees, though they can use their sick days or vacation days that they’ve saved up. This state of affairs places America in a very small group: countries that neither provide new parents with some sort of Social Security-esque benefit nor require that businesses pay their employees even a portion of their normal salaries.”
We offer little, if no support for families. Don’t get me wrong, it’s a great thing that Apple and Facebook are bringing fertility to the front of the news, but what’s really needed is genuine support for families with job security after a woman has her baby and is ready to return back to her position at the office.
What’s the use of “egg freezing” when our nation, as a whole, ignores the needs of families?
Another writer taking a jab at this announcement, Kristin Maschka from Huffington Post, listed her thoughts in the piece, “Apple, Facebook and the Absurdity of an Egg Freezing Benefit.”
According to Maschka’s commentary, women have two career choices: have a company freeze their eggs or a company makes internal changes enabling women to have children, care for her family and still have a thriving career.
She writes, “The egg-freezing strategy means that Apple and Facebook are also saying ‘It’s up to each woman to plan her way through her work life. If she doesn’t, then too bad, it’s her fault.’” She continues, “All of this implies women can simply plan and choose our way through today’s work life challenges — marry the right guy, don’t lean back, choose a family friendly career, have kids early, have kids late, freeze your eggs, just ask for flexibility — and all of it actually prevents us from taking effective actions to change our workplaces and our public policies.”
Then there’s another buzz about this topic.
In the high tech fields, it’s younger employees who are in demand since they are on the cutting edge. Tech companies are making an investment in its youthful employees, and by offering to freeze their eggs, they perhaps are insuring their investment for longer staying power. And when the thirty and forty-something-years arrive for the “first round of childbearing,” a new generation of graduate students will enter the corporate doors.
It’s something to think about.Read More