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
The men and women who enlist in the military do so for a variety of reasons. These reasons range from the desire to fight for their country, to receiving a college education, to following in their family military lineage. Regardless of the reasons they are willing to be placed in harm’s way and risk their lives.
According to the Office of Veteran Affairs, more than 970,000 service members are physically scarred and injured. With all the U.S. government taxpayer resources, one would think that these veterans would have their health and wellness taken care of, including the assistance to build a family through the help of fertility treatments.
Well, think again.
According to Alan Fram from the Associated Press, Sen. Patty Murray, D-Wash., removed the fertility bill from the controversial senate floor.
Fram wrote, “With partisan battling over abortion on the rise, a Democratic senator withdrew a bill Wednesday expanding government fertility services for wounded veterans and blamed what she said was a Republican attack on women’s health care.” He continued, “A GOP senator said the changes he was pushing were designed to set priorities for an overburdened Department of Veterans Affairs.”
Convoluted as this may seem, one of the issues pushing this bill off tabletop considerations had to do with “secretly recorded videos” taping officials from Planned Parenthood. On tape were discussions of how research could be conducted by using organs of aborted fetuses.
There was a divide with one side pointing blame and the other saying that the videos were tampered with and out of context.
What exactly does this above scenario have to do with helping veterans who are struggling from infertility build families? Absolutely nothing, that’s what.
These men and women who serve our country endure horrifying injuries on behalf of the United States and the military. And if they have trouble conceiving, IVF isn’t covered for them?
And this bill, which would have corrected this, had to be withdrawn because of partisan politics.
In the article, Murray was quoted saying that she had expected the Senate Veterans Affairs Committee to easily approve her bill on Wednesday. But in a Senate floor speech, Murray said she was, “…withdrawing the measure because Republicans decided ‘to leap at the opportunity to pander to their base’ by offering amendments designed to ‘roll back the clock and take away women’s health care options.’”
Fram wrote that Sen. Thom Tillis, R-N.C., authored amendments to this particular bill.
Tillis said, “…he wanted to make sure the VA improves existing programs for veterans before Congress burdens it with new duties.”
Helping women and men become parents through IVF is a burden of a new duty and not a right? We as Americans have the responsibility to help veterans return back to a life of normalcy, and for many, this is through parenthood.
To deny these basic human privileges just because of a “three-ring circus show” in the Senate is not a justifiable excuse to remove this bill.
Couples, who are in the throes of infertility, don’t care about Planned Parenthood and right-to-life issues. Currently, that’s the furthest thing from their minds.
All they want is a family. Apparently, IVF is too much to ask for.Read More
Thanks to the U.S. Supreme Court ruling, the legalization of same-sex marriage made one recent court case a cinch for U.S. District Judge Dee Benson. In West Jordan, Utah, wives Angie and Kami Roe are beaming with joy that both of their names will go on their child’s birth certificate.
The premise of the lawsuit was based on the fact that the State of Utah should view wedded lesbians the same exact way as heterosexual couples who utilize sperm donors to build a family.
According to Lindsay Whitehurst from the Associated Press, Utah distinguishes a husband who needs the assistance of a sperm donor for reproduction. However, the attorney general’s office in Utah held their position that this recognition did not encompass same-sex couples since marriage was different in terms of having children.
The state attorney’s court documents spelled out, “It is a fact that a non-biologically related female spouse can never be the biological father of a child.” And they add, “It is a biological impossibility for a woman who does not give birth to a child to establish paternity of a child through the act of birth.”
Well, that has all changed now, hasn’t it?
In the ruling, Judge Benson said that the reproduction case for the Roe family was not hard to decide with the Supreme Court landmark decision in June.
At the bench, Benson told the courtroom, “The state has failed to demonstrate any legitimate reason, actually any reason at all, for not treating a female spouse in a same-sex marriage the same as a male spouse in an opposite-sex marriage.”
And the judge was absolutely right. Really, this is the only ruling he could have made especially in light of Obergefell v. Hodges.
According to the American Civil Liberties Union, a ruling in favor of same-sex couples such as this was the first of its kind since the legalization of gay marriage. Additionally, cases mirroring this one have been filed in courthouses throughout the nation.
It will be interesting to see which way the future rulings lean.
Whitehurst also brought readers up to courtroom speed with Parker Douglas’ legal maneuver from the Utah Attorney General’s Office. He told the judge, “…that listing non-biological parents on a birth certificate could throw off state record-keeping and disrupt the ability of authorities to identify public health trends.”
Though a nice tactic, it was fruitless.
The judge fired back that the same “record-keeping” challenges could occur when married couples who are heterosexual use sperm donors for third-party reproduction.
Touché, Judge Benson.
Outside the courtroom, Douglas was asked whether his office planned to appeal. He declined to comment on that matter.
Circling back, Kami Roe gave birth to her baby this past February. If Benson ruled in the other direction, Roe’s wife may have been forced to undergo the process of stepparent adoption.
The wives both said such a pathway was, “costly, invasive and unfair.”
Douglas NeJamie, law professor at the University of California, Los Angeles, told the Associated Press that this Utah ruling may have an effect on future pending cases.
“…the parental rights of same-sex couples will depend on what state laws are already on the books for heterosexual couples,” he said.
Everyone in favor of equality agrees that the issue of same-sex families must quicken its pace to catch up with the legalization of gay marriage so it may continue to unravel the threads of discrimination.Read More
These last few weeks have been a time for celebration. The gay rights movement reached a historic victory after the Supreme Court’s decision rang across the nation that gay marriage was finally legal. While this landmark ruling amplifies equality, the struggle still continues for gay families seeking surrogacy to build their families.
While marriage may be legal in the nation, surrogacy laws still differ from state to state.
Progressive states which embrace equality and surrogacy such as California, Nevada, Colorado, and Illinois will remain status quo.
However, if gay families move away from one of these states that recognize same-sex families, a legal safety net may disappear. This also includes parentage protection for the non-biological parent.
If a gay couple decides to relocate to a new state with only the birth certificate, the legal foundation may weaken if there are no biological connections and they didn’t give birth to the baby.
If a gay couple does not have a court-ordered judgement of parentage, they could be in a tenuous position in a new state if it doesn’t recognize parental rights for non-biological parents.
Douglas NeJaime, a law professor at UC Irvine, spelled it out perfectly in his LA Times article, “With ruling on marriage equality, fight for gay families is next.”
While the scales of justice from the Supreme Court ruling of Obergefell v. Hodges fell on the side of equality, issues for gay husbands and wives still remain.
“The court’s ruling could work to produce new conflicts and intensify old ones. The danger arises because marriage equality doesn’t immediately or necessarily erase cultural and legal attachments to biological, dual-gender parenting,” he writes.
For those advocating traditional families, such as David Blankenhorn of the Institute for American Values, the new LGBT fight will be based on the premise of the “marital presumption.” And this is being described as the developing battleground for their cause.
In a traditional marriage, when a mother gives birth to a child, the husband is legally “presumed” to be the baby’s father.
According to NeJaime, some lesbian couples are being denied this “presumption.”
In one high-profile case, he writes, officials in Iowa refused to list the biological mother’s wife on the birth certificate of the child they had conceived through donor insemination.
Officials in Iowa are holding their ground citing that a baby has a biological mother and biological father.
“Essentially the state excluded the non-biological mother because she was not a biological father,” he wrote.
While some states follow strict guidelines regarding presumed parentage, we cannot forget the states in this nation which surrogacy is illegal, such as New York.
The United States of America is fragmented, not united, regarding surrogacy and the parentage which arises from it.
NeJaime then called family building through surrogacy for gay men more daunting.
While each surrogacy journey is different, for most lesbian couples, the only assistance they may need is sperm donation. Conversely, for gay men, they have an uphill climb in choosing an egg donor and surrogate.
As mentioned earlier, states such as California have simplified surrogacy so gay couples have legal parentage. Legal documentation releases the surrogate from parental rights thereby granting an intended parent(s) full legal parentage and freeing them from undergoing the process of adoption.
NeJaime reports, “That works for gay male couples; even if states require the intended parents to be married, gay couples can now meet that requirement.”
While the Supreme Court ruling afforded the gay community a huge stride toward equality, there is still more work to be done.
“One might think that equality for gay families has arrived, but…marriage equality doesn’t erase cultural and legal attachments to biological, dual-gender parenting,” NeJaime writes.
And he is absolutely right.
Gordon “Bud” Lake and his husband are the proud fathers of a baby girl. But this situation is not as simple or happy as just that.
The men want to bring their baby back to their Florida home, but they are stuck in Thailand because the appropriate parental paperwork and USA passport have not been issued.
It appears the root of this issue is their sexual orientation.
The couple’s daughter, Carmen Santos Lake, was born at a Bangkok hospital. They also have a son who was born via surrogate from India but did not encounter this problem when he was born.
Michael Laves, a reporter for the Blade writes, “Lake said the surrogate — who is not the baby’s biological mother — agreed to list him on their daughter’s birth certificate as her father. He told the Blade the surrogate also signed a consent form that allowed him to take her from the hospital. ‘All seemed to be going well,’” wrote Lake in an email to the Blade earlier this month. Lake continued, “Carmen was beautiful, happy and healthy. The surrogate was fully cooperating and I was looking forward to heading home with my family in a matter of weeks, once all the remaining paperwork was finalized.”
Lake told the media publication that he suspected there was a problem a few weeks after his daughter was born. The surrogate told the couple’s attorney that she was fine helping an “ordinary couple” not able to have a family. The term, “ordinary,” referred to a traditional husband and wife and not gay.
“I don’t know if the agency told her beforehand,” Lake said.
This of course triggers the question of whether or not full disclosure was provided to the surrogate prior to the embryo transfer. If this occurred, would a problem such as this be happening at this very moment?
Lake went on to tell the publication that the surrogate is represented by the Women’s Lawyers Association of Thailand. The surrogate did not appear for a scheduled meeting at the U.S. Embassy in Bangkok where she was supposed to furnish the proper documentation, including an American passport, so Lake could leave the country with the baby.
In the eyes of Thai law, currently Lake has no parental rights to his baby.
Laves reports, “A new law that outlaws surrogacy for foreigners in Thailand is scheduled to take effect on July 31. Current Thai law stipulates that the surrogate has full legal and parental rights to Lake’s daughter, even though he is listed on her birth certificate as her father.”
Lake has already undergone a DNA test for paternity.
He told the Blade, “I still don’t have any parental rights, according to Thai law.”
The U.S. Embassy in Bangkok has issued a Consular Report of Birth Abroad or CRBA, Laves reports, which certifies a child who is born overseas, is an American citizen at the time of their birth. When “consent” is provided from both parents, which is listed on the baby’s birth certificate, Thai administrators will consider issuing a U.S. passport.
While these husbands are experiencing a nightmarish event and want to come home, it’s important to note that people seek countries like Thailand, India, Nepal and Mexico for surrogacy because of lower expenses. Conversely, operating costs for these surrogate agencies are cut-rate.
The foundation of doing business with countries such as these remains unstable.
In the United States, intended parent(s) who work with agencies in a surrogate-friendly state experience radically different situations than what Lake is experiencing in Thailand. The surrogate would not be able to deny parentage because there are laws to protect the parents and the surrogates.Read More
This legal battle, which turned heads months ago, intrigued many since it regarded a custody dispute over frozen embryos. However, with third-party reproduction gaining more traction in the era of the “modern family,” cases like this are becoming more common.
Nevertheless, this has been coined a “landmark case” and may have the trajectory to set precedence for future cases similar to this one.
An appellate court in Illinois ruled in favor of Karla Dunston, 43.
Five years ago, Dunston froze her embryos prior to her cancer treatments for lymphoma beginning in 2010. As a doctor, she had the foresight knowing that the treatments could render her infertile so she made a proactive choice to harvest her eggs.
At the time, her now ex-boyfriend, Jacob Szafranski, helped by donating his sperm.
A total of three embryos were cryopreserved.
While Dunston wants to proceed to build a family, Szafranski, on the other hand, tossed up legal blockades saying that this was in clear violation of his own rights “not to procreate.”
The couple broke up several months following the embryo creation, and it was at that time the ex-boyfriend did not want these embryos used.
Reporter, Elizabeth Chuck, for NBC NEWS writes, “Dunston is now in remission. Her attorney says she is not asking for money or support from Szafranski — just the ability to have kids.”
When Szafranski agreed to help, this solved an important issue, and quite frankly, hope for the future when undergoing cancer treatments.
Abram Moore, Dunston’s attorney, told NBC in a statement, “These three embryos represent Dr. Dunston’s last chance to have children that share her genetic material. Mr. Szafranski agreed to create these embryos … so that Dr. Dunston could use them to attempt to have children if she survived cancer.”
Of course, Szafranski is disheartened by the ruling. He told NBC Chicago, “I don’t think anyone should ever have their right to decide when and how they become a parent decided for them, and this is exactly what this is doing.”
In my legal opinion, the appellate court got it right. Szafranski agreed to assist Dunston whether he was a sperm donor or a parent. They discussed both options, and it looks as if he is more of a sperm donor.
The ex-boyfriend knew fully well that this could be her last chance to have biological children, and he decided to help her. Throughout this legal battle, their agreement never changed. The only thing that’s changed is Szafranski and his position. And still, it wasn’t enough to persuade the court.
Szafranski’s attorney, Brian Schroeder, informed NBC Chicago that he has intentions to appeal this case to the Illinois Supreme Court.
Chuck interviewed Susan Crockin, who teaches reproductive law at Georgetown Law Center. She described their appeals as an uphill battle.
“The court was pretty clear in finding that there was an oral contract in which Dunston said, ‘Even if we are not together, you may use the embryos’ — essentially being a sperm donor,’ she told NBC News, adding that there are probably less than two dozen cases on record concerning custody of frozen embryos.”
Sperm donors have no legal parental responsibilities or financial obligations, Chuck reported.
“The court found they agreed she could use the embryos, regardless of whether they had a relationship or he was going to be considered a donor. That’s why the outcome at both the trial and the appellate level is fairly straightforward,” Crockin told NBC.
In the article, the Sofia Vergara and Nick Loeb’s legal wrestle was briefly mentioned. Loeb wants custody of the embryos.
But these two cases are not similar. Yes, they do involve frozen embryos, but there is a crystal clear difference. As mentioned earlier, for Dunston, this was her “last chance” to have a biological child.Read More
For those not affected by infertility, many received a crash course education regarding embryos after the recent media spotlight on Sofia Vergara because of the suit Vegara’s ex-fiancé filed against her for custody of the frozen embryos they created while in a relationship.
While media readers and listeners think this is just a “Hollywood thing,” think again. Cases regarding ownership as well as what to do with the excess of frozen embryos have become the 21st century reality.
In the Washington Post, reporter, Ellen McCarthy, covers the story of a woman who must make a choice on what to do with an extra embryo located at a sterilized storage facility. Brenda Loblein used fertility treatments in her second marriage. She now has two children.
Still, one frozen embryo remains cryopreserved.
McCarthy writes, “The Lobleins are among thousands of couples and individuals grappling with difficult choices regarding their stored genetic material. The Department of Health and Human Services estimates that more than 600,000 frozen embryos are stored in the United States, in addition to countless more cryopreserved eggs and sperm.” She continues, “Using the embryos for research, donating them or simply throwing them away are options that raise ethical issues for many people. Keeping them frozen avoids having to face that decision but can cost thousands of dollars.”
The term many are using is “embryos in limbo.” According to medical director at the Shady Grove Fertility Center based in Washington D.C., Dr. Eric Widra describes it as a huge problem in their field of medicine.
One who has not been immersed in the world of infertility treatments may ask, “Why are there leftovers?”
The answer is twofold: cost and effectiveness.
“Eggs can be collected and fertilized one at a time, but it’s an expensive procedure,” McCarthy writes. “To increase the odds of getting a viable embryo at a reasonable cost, most couples opt to fertilize multiple eggs. Few couples consider the fate of any excess embryos that might result.”
The reporter highlights a 2005 study championed by the National Institutes of Health. Out of 58 couples with remaining embryos, more than 70 percent remained indecisive on what to do.
Those who undergo IVF never think they have to make this decision. However, when they are done building their family, they are getting billed every year to store something they don’t really know quite what to do with. They don’t want to destroy them, but they can’t bring themselves to donate them to help someone else create a family. So what do many do? The answer is “nothing.”
They could donate the embryos to medical research or destroy them, but most do not feel comfortable with that option.
According to the reporter, Crawford and Hess made their decision and decided to terminate the embryos. Obviously, the decision weighed heavily on them.
And then there are the legal issues such as the Vergara case, among other lawsuits, that have entered courtrooms. As long as fertility medicine exists, circumstances like this will continue.Read More