An Italian court has ruled that a same-sex couple’s twins, born to a California surrogate in 2015, are not in fact brothers, despite being born from eggs from the same donor. The court initially refused to allow the couple to register their sons as their legal children when they returned home to Milan.
Despite obvious disappointment, the men were instructed they could register their biological sons individually, as each was the biological father of one child. As a couple, however, the twins could not be legally declared their children. As of last year, Italy affords same-sex couples civil partnerships but does not allow them adoption or marriage rights. Italian law also declares surrogacy illegal.
Even though the ruling drew instant criticism, those familiar with Italian law are describing it as a step in the right direction. One such entity is Famiglie Arcobaleno, a nongovernmental organization (NGO) which advocates and supports the rights of gay couples and their children.
“It’s the first time that an Italian court has established that a child’s best interest comes before [the legality of] how he or she was born,” the NGO’s president, Marilena Grassadonia, told The Washington Post in a telephone interview. She continued, “The children’s interest was to have a parent. Also, until now the babies were only U.S. citizens, but finally their fathers can pass their Italian citizenship to them.”
In her interview with The Washington Post, Grassadonia pointed out how other nongovernmental organizations like theirs help navigate gay couples to countries where the rights and wellness of surrogates are respected.
“California and Canada are our preferred destinations,” she told the reporter.
Grassadonia went on to say that the twin boys never appeared to be in danger of being removed from their fathers’ care. According to the media coverage, a “removal” could be triggered by two factors in Italy: a surrogate exploited in a poverty-stricken country and/or falsifying information regarding conception.
Many are beginning to realize that the Italian court’s ruling should be viewed as progress. The Italian government recognized these men as the parents of their biological child, despite knowing they are a same-sex couple who had children in the United States by way of surrogacy.
While it’s bittersweet the children are not legally recognized as a family per se, this is still progress in Italy – and any progress like this should be encouraged and applauded.
In a recent right-to-live lawsuit filed against Sofia Vergara, she is being sued by her two frozen embryos, named “Emma” and “Isabella” in court documents, claiming that they are being deprived of the opportunity to receive an inheritance through a trust fund established in their names. The trust was drafted in Louisiana while the embryos remain stored at a California facility.
This new claim adds to an already contentious embryo custody dispute between Vergara, and her former fiancé, Nick Loeb.
In 2013, when Vergara and Loeb turned to a fertility clinic in California, they signed consent forms stipulating that neither partner could do anything with the two embryos without the other’s consent.
Despite the fact that the original consent forms did not specify how the embryos would be divided in the event of a separation, legal experts are calling this current turn of events highly unusual.
Jan Costello, a professor at Loyola Law School in Los Angeles told the Huffington Post, “Embryos are legally regarded as property throughout the United States, and the lawsuit’s rhetorical flourishes ― naming the embryos Isabella and Emma ― do nothing to enhance their legal status,” she said.
However, the State of Louisiana is pro-life, defining a fertilized egg as a “juridical person,” providing significantly more rights to embryos than other states in the nation, such as California.
The proper place to have filed this particular lawsuit would have been in California where the embryos were created and are stored. An established “fund” for the frozen embryos is likely insufficient grounds for filing a lawsuit in Louisiana.
Since the ruling in the Findley case in California in November 2015, one can understand the “Hail Mary” pass in filing this lawsuit in Louisiana. In Findley, Superior Court Judge Anne-Christine Massullo held that the consent form the couple signed at a fertility clinic controls and “the intent of the parties at the time, as evidenced by that document, must be given conclusive effect.”
This California ruling set a precedent for future cases, including the Vergara and Loeb frozen embryo custody dispute. It’s believed that this newest lawsuit launched by James Charbonnet, trustee of the fund, on behalf of Vergara’s embryos, won’t gain much legal traction – only media attention.Read More
After a four-year legal battle, Shawnee County District Court Judge Mary Mattivi ruled that Topeka sperm donor, William Marotta, is not the legal father of the young girl conceived via his donation.
The State of Kansas argued that since Marotta was the biological father, he was responsible for child support. Conversely, Marotta’s attorney, Charles Baylor, argued that his client never wanted parental responsibilities. After responding to a Craigslist ad looking for a sperm donor posted by same-sex couple, Angela Bauer and Jennifer Schreiner, Marotta signed a contract which waived his parental rights.
Judge Mattivi concluded that Bauer and Schreiner, who separated in December 2010, are required to pay child support since they are co-parenting. Instead of Marotta, Bauer, the non-biological mother, was declared the child’s other legal parent.
Following Judge Mattivi’s ruling, Baylor announced, “It’s a great victory for Mr. Marotta.” He added, “We’re very gratified by the decision.”
In Judge Mattivi’s ruling she touched upon the “lack of professional services” used by the former couple during the insemination process. Rather than going to a medical facility, Bauer and Schreiner chose to do the insemination in the privacy of their own home. Judge Mattivi noted, “… they neither consulted a lawyer nor utilized the services of a medical clinic.”
The 1994 Kansas sperm donor statute requires that a licensed physician perform the artificial insemination. Without a physician involved in the process, the enforceability of the contract Marotta signed was questionable.
However, Luke Ranker of the Topeka Capital-Journal reported that Judge Mattivi’s ruling cited ten compelling reasons as to why Marotta should not be considered the child’s legal father, despite noncompliance with the statute.
In her common-sense decision, Judge Mattivi addressed that Marotta did not have any parental relationship with the child and he had not displayed any fatherly post-birth behavior, as well as the fact that introducing a new parent into the child’s life at this juncture would be confusing and potentially detrimental.
This recent ruling is considered a groundbreaking and great decision by those in the legal community because of its logical conclusion. Although Marotta is the biological father of this child, the fact that the court respected the parties’ intent that he not be her legal parent is commendable.Read More
The battle over two frozen embryos was decided by the Missouri Court of Appeals last week. In a contentious dispute involving divorced couple Jalesia McQueen, 44, and Justin Gadberry, 34, McQueen wanted to be able to use the two frozen embryos the couple created, whereas, Gadberry either wanted the embryos given to an infertile couple, donated to research or destroyed.
Gadberry remained adamant that he did not want to be forced into fatherhood with McQueen, something his attorney argued would be a direct violation of his client’s constitutional rights.
Last week, the Missouri Court of Appeals sided with Gadberry and upheld the lower court’s earlier ruling: the frozen embryos were marital property of a special character.
According to the ruling, the frozen embryos will remain within the couple’s joint custody and will continue to be stored until the couple arrives at an agreement regarding their use. Judge Robert M. Clayton III wrote that the award of joint custody, “…subjects neither party to any unwarranted governmental intrusion but leaves the intimate decision of whether to potentially have more children to the parties alone.” Judge Clayton continued, “The right of personal privacy extends to intimate activities and decisions relating to marriage, procreation, contraception and family relationships.”
In a statement following the recent appellate ruling, Tim Schlesinger, Gadberry’s attorney, announced, “I think today’s ruling is a victory for individuals against unjustified government intrusion. We don’t want the government telling when to have children or whether to have children.”
Reporter for the St. Louis Post-Dispatch, Joel Currier, noted that the decision of the Missouri Court of Appeals confirmed that,“…McQueen’s attempt to apply state law defining life as beginning at conception is at odds with U.S. Supreme Court decisions protecting Gadberry’s rights to privacy, to be free from government interference and not to procreate.”
McQueen has already voiced her plans to move forward with an appeal of the decision.
“It’s my offspring. It’s part of me, and what right do the judges or the government have to tell me I cannot have them?” It appears as though she is facing an uphill battle.Read More
A former Verizon employee filed a lawsuit against her employer alleging the company’s refusal to pay for her maternity leave benefits. Marybeth Walz required a surrogate to carry her child after losing her uterus to cervical cancer in her late twenties.
In 2013 Walz’s sister-in-law carried and delivered her twin sons. Born premature, the first boy passed away within 24 hours, and the other, at six months of age.
According to Kathleen O’Brien of NJ Advanced Media, “Walz’s lawsuit said Verizon officials were initially congratulatory in 2013 when she told them she was expecting twin boys. When they learned the pregnancy was carried by a surrogate, however, they said she wouldn’t qualify for a paid leave, the lawsuit alleges,” O’Brien reports. She continues, “Walz said the ultimate irony was that if she had adopted a child, Verizon would most likely have given her not only a paid maternity leave, but also $10,000 toward her adoption expenses.”
The type of lawsuit Walz filed isn’t unusual. Other plaintiffs have alleged nonpayment of maternity leave benefits after their child was born via surrogacy, including a Massachusetts case which was settled in 2011.
“The case raises intriguing questions about how businesses handle atypical pregnancies, according to legal experts,” O’Brien reports. “Should someone whose eggs produce a child born of another woman be eligible for a paid maternity leave? And is the inability to become pregnant considered a pregnancy-related disability?”
In an age where individuals can become parents through alternative reproductive techniques, “maternity leave” should be properly viewed as a time for parent-child bonding. To deny a new parent and their baby of this privilege because of “human resources department policies” is nonsensical.
As the United States continues to catch up in granting benefits and rights for progressive family building, other countries are strides ahead. In 2015, the United Kingdom granted intended parents a type of “parental leave” similar to that available to those who have become parents through adoption. In Australia, a new parent through a surrogacy arrangement can be eligible to receive paid parental leave if they are deemed the child’s long term “primary carer” and became one before their child turns one-year-old.
As for the Walz case, Verizon has not issued a public comment nor filed a response to her lawsuit.Read More
According to CBC News, a possible class-action lawsuit against former fertility doctor, Norman Barwin of Ottawa, Canada, alleges he impregnated two patients with his own sperm without their consent. This potential lawsuit comes on the heels of a similar lawsuit filed in Indianapolis. Donald Cline, a retired fertility doctor, faces felony obstruction of justice charges stemming from allegations of having used his own sperm on patients undergoing fertility treatments.
The impetus for these Canadian legal proceedings against Barwin came after a family practitioner recommended that Daniel Dixon, who with his wife were former patients of Barwin, and his daughter, Rebecca, 26, undergo a blood test to confirm their genetic relation. The doctor found it peculiar that Rebecca had brown eyes when both of her parents had blue eyes.
The blood test results showed Rebecca’s father had type AB blood and she had type O positive, indicating that they were not biologically related.
“I remember just this wave of shock going through my body,” said Dixon in her interview. “It’s not something that you ever would imagine.”
Her DNA testing also revealed that she was nearly 60 percent Ashkenazi Jewish- Barwin is of Jewish descent.
“Last month, according to the statement of claim, Dixon’s DNA was compared to that of another woman, 25-year-old Kat Palmer, who had also been conceived at the Broadview Fertility Clinic. Palmer had been told by Barwin in an October 2015 email that he was her biological father,” Pritchard cited.
The DNA relationship test showed they were, “half-sisters by way of the same biological father.”
Attorney Peter Cronyn of Nelligan O’Brien Payne, who filed the class-action, shared with CBC News that his team is requesting that Barwin freely provide a DNA sample.
“I would hope that he [Barwin] would. But if he doesn’t, we’ll look to the courts to get a sample,” Cronyn told CBC News. “I think in these circumstances, the air needs to be cleared for everybody who may have a concern about whether or not the DNA of their children is what they expected, and if indeed there’s any connection to Dr. Barwin.”
Let’s hope that Barwin cooperates so any other families who have been harmed can be notified and pursue justice if they so choose.Read More
In 2017, The Word Health Organization (WHO) will officially publish a more expansive definition of how infertility qualifies as a disability. Considered a progressive move, the WHO’s new terms have far reaching consequences and are expected to influence the National Health Service (NHS) to change its current IVF treatment policies.
WHO’s existing definition of infertility does define the disease as a disability, but limits the definition to12 months of unprotected sex without resulting in a clinical pregnancy.
One of the drafters of the WHO terms, Dr. David Adamson, shared that the driving force between redefining infertility was a desire to include all individuals.
“The definition of infertility is now written in such a way that it includes the rights of all individuals to have a family, and that includes single men, single women, gay men, gay women. It puts a stake in the ground and says an individual has got a right to reproduce whether or not they have a partner. It’s a big change,” Adamson said. He continues, “It fundamentally alters who should be included in this group and who should have access to healthcare. It sets an international legal standard. Countries are bound by it.”
While many are delighted with the new classification, the decision has also caused a wave of controversy.
Gareth Johnson MP, former chair of the All Parliamentary Group on Infertility shares, “I’m in general a supporter of IVF. But I’ve never regarded infertility as a disability or a disease but rather a medical matter. I’m the first to say you should have more availability of IVF to infertile couples but we need to ensure this whole subject retains credibility,” he said, adding, “This definition runs the risk of undermining the work NICE and others have done to ensure IVF treatment is made available for infertile couples when you get definitions off the mark like this. I think it’s trying to put IVF into a box that it doesn’t fit into frankly.”
Despite the divide, perhaps the WHO’s new infertility classification might pave the way to acceptance of infertility as a disease for which insurance companies will be mandated to provide coverage.
According to RESOLVE, the national infertility association, only 15 states have laws requiring insurance coverage, and those laws vary greatly by state. Most couples and individuals undergoing infertility treatment have to pay out of pocket, with an average cost of $15,000, which is not easy to do in today’s economy. Infertility is a disease and should be treated just like any other disease, with medical coverage for those suffering from it.Read More