Topeka sperm donor not the legal father

Posted by in Fertility, LGBT, Sperm Donation

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.Sperm donor

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.

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Missouri Appeals Court Rules Frozen Embryos are Property, Not Persons

Posted by in Assisted Reproduction, Infertility

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.Frozen-embryos-300x189

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.

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Mother files lawsuit for nonpayment of maternity leave

Posted by in Assisted Reproduction, Infertility, Surrogacy

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.walz-verizon

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.

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Lawsuit alleges infertility doctor uses own sperm to inseminate patients

Posted by in Assisted Reproduction, Infertility, Sperm Donation

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.norman-barwin

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.

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WHO classifies infertility as disability

Posted by in Assisted Reproduction, Infertility, IVF, LGBT, Uncategorized

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

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.

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The Need for Sperm Bank Transparency

Posted by in Assisted Reproduction, Infertility, Sperm Donation

CBS News recently explained there is “limited government oversight” in the sperm bank industry. Around the country, lawsuits have emerged for various reasons including lost frozen sperm vials, and even more recently, a donor who claimed to be a neuroscientist but in truth was schizophrenic and held no college degree.Sperm

According to reports, the FDA mandates that sperm donors be tested for a total of only eight diseases.

“No one regulates how sperm banks keep track of biological materials, or do genetic testing or other vetting of donors,” said CBS News.

Compare that with a typical egg donor cycle where the woman can be tested for more than 100 different medical conditions to determine if she is a carrier of diseases such as cystic fibrosis or Tay-Sachs. While sperm banks do have a questionnaire for donors, it appears that egg donor agencies raise the bar, requiring that their candidates complete a comprehensive profile covering personal information, employment, education, relationship status, traits and characteristics, prior donor history, medical and family history, current medications and more.

If a donor advances to the next phase of screening, these answers are checked and verified.

It’s customary for egg donor agencies to work in tandem with clinics that eventually approve or deny a donor based upon either their profile alone or to the combination of their profile and medical records.  If approved, a candidate continues on to medical screenings to determine medical clearance eligibility.

In addition to medical and psychological screenings, in most cases, legal contracts are also drafted between the donor and intended parents.

Most agencies also respect ASRM (American Society for Reproductive Medicine) guidelines in not exceeding more than six cycles per donor.

Top-tier egg donor agencies provide intended parents with a variety of photos of their donors at different stages of life, including childhood, adolescence, and adulthood. Some agencies offer short videos of their donors so intended parents can view more than just images. They also welcome their donor candidates to submit photos of other family members.

Conversely, sperm banks are known to offer limited photos, which can make the decision making process more challenging for intended parents.

In light of these recent cases, sperm banks are being encouraged to evaluate their policies, practices and guidelines to help ensure more transparency. In the meantime, I would encourage prospective parents via sperm donation to look to the egg donation field for best practices and insist that your chosen sperm donor be held to the same.

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Another groundbreaking ruling for gay parental rights

Posted by in Assisted Reproduction, Fertility, Infertility, LGBT, Sperm Donation

Many former same-sex couples are fighting—and winning—legal parentage for the children they helped raised, despite having no biological relation to them nor having ever adopted them.

The recent decision made by the Massachusetts Supreme Judicial Court (SJC) involved Karen Partanen, and her former partner, Julie Gallagher. Through artificial insemination, the couple had two children who are currently four and eight years of age. Gallagher is the biological mother who gave birth to the children.

The ladies ended their relationship in 2013. Partanen co-parented her children, and after the breakup, she wanted the courts to recognize her as a legal parent.

But that didn’t happen.

AP Legal Affairs writer, Denise Lavoie writes, “A family court judge dismissed Partanen’s request, finding that she didn’t meet the requirements under state law because she and Gallagher were not married when the children were born, and Partanen is not a biological parent.”

That decision, however, was overturned by SJC. The highest court in the Commonwealth of Massachusetts ruled that Partanen could be granted the same parental rights as her children’s biological mother. SJC broadened their view of parentage: A non-biological gay parent could be a “presumptive parent” under their state law.

pexels-photo-105855-mediumMoving forward, a biological parent may have a more difficult time blocking visitation from their ex-partners. In Massachusetts, estranged gay parents now have the potential to be reunited with their children, and this ruling may also help alleviate a non-biological parent’s deep concern from becoming alienated in the event of a breakup.

“The plain language of the provisions, then, may be construed to apply to children born to same-sex couples, even though at least one member of the couple may well lack biological ties to the children,” Justice Barbara Lenk wrote for the court in the unanimous decision.

In the article, Lavoie appropriately highlighted how SJC declared the legalization of gay marriage in Massachusetts. In 2003, Massachusetts was the first state in the country to recognize same-sex marriage. Many consider the state to remain on the fast track of equality especially following SJC’s recent ruling.

Representing Partanen was GLBTQ Legal Advocates and Defenders. Mary Bonauto, who serves as the firm’s civil rights project director, called SJC’s decision as a major victory for those who have contemporary families.

“It is especially a victory for the children in those families who should not be deprived of their parents because those parents are not married or used assisted reproduction,” she shared.

While this ruling is indeed groundbreaking, it’s on the heels of another landmark decision made in August. The New York Court of Appeals reversed the 1991 ruling of Matter of Alison D. v. Virginia M., which had enforced no visitation or custody rights to those that had no biological or adoptive ties to their children.

Change is happening—an optimistic domino effect of equality is starting to take shape.

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