Assisted Reproduction Laws need move into the 21st century family landscape. The modern family is changing especially with new IVF treatments emerging and more realistic legal parameters need to be in place so situations like Sheena and Tiara Yates will be a thing of the past.
“When Sheena and Tiara Yates decided they wanted to have a second child, the lesbian couple sought out a sperm donor and drew up a contract in which the man agreed to give up his paternity rights – a measure they believed would spare them a second custody battle with a donor,” wrote Bruce Shipkowski of the Associated Press. “Their child, conceived through at-home artificial insemination, is now 1, and the couple is again locked in a custody dispute.”
Why? Because in New Jersey, a person who is the non-biological parent will only be recognized as the natural parent if the insemination process was done by a physician.
Now, the sperm donor wants parental rights.
While the couple did meet with their doctor, who examined Sheen Yates and was prescribed her prenatal vitamins in preparation for the pregnancy, the couple chose to do the insemination at home so they could avoid the medical costs.
In an earlier report, Yates said, “All we want is a family, and we can’t have kids without an outside party.”
Yates went on to say how this whole legal battle is incredibly hard for the entire family.
Shipkowski writes that Susan Sommer, director of constitutional litigation for Lambda Legal, said the Yates’ saga is a clear example of the outdated way courts perceive parenting. Holding onto this viewpoint is not accurately addressing the other options how children are born, including artificial insemination.
She tells the reporter, “Our laws really need to catch up to reality. It’s children who are getting hurt.” She also pointed out, “That judges don’t always dig into the specifics of whether a doctor is directly involved in an artificial insemination procedure, but that biological fathers seeking to overturn earlier agreements often look for loopholes.”
Sommer said there shouldn’t be a looming “gotcha” just because a doctor wasn’t in the same room during the insemination.
Attorney John Keating represents Yates. He is hopeful that their case will cast more light on reproductive rights for those living in New Jersey.
But Kimberly Mutcherson, a bioethics and family law professor at Rutgers University in Camden thinks otherwise, at least for the time being.
She tells Shipkowski, “It’s pretty much long been the case that the way that you protect yourself when you use donor sperm is by going to a physician. I don’t see that changing any time soon. I think people and policy makers want there to be pretty clear rules. The problem is people don’t know that’s the rule.”
The premise of the “Modern Family Act,” is to make the parental process swift for non-biological parents, such as in same-sex couples who require a sperm donor or egg donor.
San Francisco Supervisor, Tom Ammiano, shared the following with GSN about AB 2344:
- “In recent decades and years, we have seen the growth of families made possible by assisted reproductive technologies. Different forms of alternative insemination, surrogacy and other medical advances have been used to make new families.”
- “It’s a good thing when technology allows more people to form healthy, loving parental relationships and the state should be encouraging that.”
- “The Modern Family Act lets them to do that in three main ways. Those are: streamlining stepparent adoption where appropriate, providing a form to clarify parental intent in cases of sperm or egg donation, and requiring a disclosure of health insurance for surrogacy.”
While the Modern Family Act aids the LGBT community, Ammiano underscores how it aims to help heterosexual couples, too.
“Really, it’s just about allowing families to avoid unnecessary legal pitfalls,” he said.
While AB 2344 passed the legislature and went through the enrollment phase, it seems to have stalled there. However, historically, assembly bills can be rewritten and resubmitted.
Knowing that the Modern Family Act did get recognition gives hope to many.
In the meantime, we will keep seeing cases just like this.
The term, “embryo adoption,” has been floating around now for some time and is a crticial issue for those going through IVF treatment as it’s estimated that more than 600,000 frozen embryos are stored in this country; and, this number continues to climb with fertility treatments.
Recently, eyes were glued to media reports when a family from Tennessee turned to Facebook in hopes a couple would consider adopting their unused embryos. The couple, Angel and Jeff Watts of Mount Juliet, Tennessee, had six unused embryos after successfully having two sets of twins.
The frozen embryos were stored at the National Embryo Donation Center in Knoxville.
As of late, in USA Today, Karen Weintraub reports that Rebecca and Chris Henderson of Hampton, Va., have a total of 11 frozen embryos stored after their twins were born via IFV and then another baby, by natural conception, about five years later.
The couple Weintraub writes, “…they weren’t comfortable donating their embryos for scientific research or destroying them; they believe life begins at conception. So the Hendersons legally signed them over to Dan and Kelli Gassman of Salem, Ore. — another Christian couple a lot like them who still struggled with fertility problems.”
Weintraub goes on to say that embryo donation has been slowly growing in recent years. She interviewed Sean Tipton of the American Society for Reproductive Medicine who states, “Most who choose that option do so for religious or ideological reasons.”
I am delighted that these frozen embryos are being used for conception. However, what I find legally problematic is the fact that they are being “adopted” as there is no need to adopt these embryos since there is no birth mother giving up her legal rights to a child. And, there is no child involved in this scenario.
In this article, I fully agree with the American Society for Reproductive Medicine which conveys the following in this article:
“While the term embryo adoption is favored by those who believe life begins at conception, the medical group has issued an ethics policy stating that the procedure should be called donation not adoption, because embryos are not children.”
In Pacific Standard Magazine, Rebecca Buckwalter-Poza, J.D., wrote a piece titled, “The Frozen Children: The Rise—and Complications—of Embryo Adoption in the U.S.” Buckwalter-Poza clearly highlights that embryo adoption is becoming more popular because it’s proving to be more effective than traditional IVF. Its odds are stacked in someone’s favor in terms of traditional adoption, too.
However, Buckwalter-Poza reports, “But our legislature is still struggling with serious legal issues surrounding the practice.” She adds, “The promise of embryoadoption is limited by the questions that remain surrounding legal status. Obvious as it seems that embryos deserve some standing as potential lives, states generally treat them as personal property.”
In this article, Buckwalter-Poza goes on to say that no superseding embryo-related law exists, so a child who develops from an adopted embryo legally belongs to her birth parents. In Buckwalter-Poza’s summation, she believes American lawmakers’ remain hesitant to place a definition on an embryo’s legal status. She suggests this may come from internal conflict of laws which currently exist but the real aversion may be to, “place legal limits on fertility medicine.”
However it goes about it, Buckwalter-Poza stated, a legislature is the only body that can resolve the questions implicated in embryo adoption.
“Until legislators establish embryos’ legal standing—or lack thereof—judges and parents alike are operating in a legal vacuum,” she writes. Buckwalter-Poza continued, “Few judges are up to the task of carving out a new status for embryos as both property and potential people, but fewer still will get the opportunity to do so, as long as parents know embryo adoption is subject to legal uncertainty. The full promise of embryo adoption cannot be realized until the law catches up to technology to protect the rights of parents in this brave new variation on adoption.”
While Buckwalter-Poza brings up valid points, my legal stance is the same: there is no legal reason to adopt embryos. They should be donated, which is far less expensive and a much more simple and streamlined process.Read More
Another case has entered the courtroom doors where a sperm donor is fighting for parental rights. A lesbian couple has been forced to go to court in hopes that the scales of justice will tip in their favor.
FOX News in Detroit spoke about this case on the airwaves.
The sperm donor, Stacey Teruya, wants custody and the legal debate is getting heated.
The donor contract was drafted in California, so Teruya’s argument is now that the couple he donated to live in Detroit, the contract may not be binding after all.
Annette Burgan who is fighting for her children told reporters that her children, “…understand that he [Teruya] is a donor. I wanted children and I needed help to bring them into the world.”
The story pointed out that Burgan and her partner relied on a donor for motherhood.
While he was declared a donor, the reporter goes on to say that Burgan allowed Teruya to see the children.
The story is a bit hazy as to how many children were born from the sperm donation. A document in the news clip shows Teruya signed the sperm donor contract on 10/13/01.
Also, it’s unclear as to whether or not Burgan knew the donor beforehand. Despite these omissions in the news report one thing is for certain. Burgan allowed the donor to see the children.
And that’s where the legal fog of unclarity starts to settle in.
FOX reports, “They know him as Stacey,” said Racine Miller, the couple’s attorney. “They know that this is how I was created. This is not my father, by any stretch, I have two mothers.”
But Teruya is thinking otherwise. It appears he saw the children regularly.
Following a stretch of time, a disturbing accusation surfaced.
Fox reports, “After allegations of inappropriate sexual misconduct by one of the children against the donor surfaced, Burgan decided to end the children’s relationship.”
Teruya is being legally represented by Christopher Drouillard. The attorney claims the allegations were nothing more than a smokescreen.
Fox received information that Teruya, “…was investigated by Child Protective Services and they made a determination that it was an unsubstantiated allegation.”
While the accusation has been waived, Teruya continues to lean on the courts, wanting parental recognition.Read More
When Facebook and Apple announced its offer to freeze the eggs of their female employees, there was a buzz of pros and cons regarding this proposal. While one side thought it was an exceptional gesture to help women postpone their days of motherhood while immersed in corporate America, another group was offended by such a business maneuver which they thought was an insulting curtain of transparency where they were being forced to put off having a family Quite frankly, in the end, it’s a personal decision. Michelle Andrews who wrote a special in The Washington Post uncovered another facet to this whole corporate egg freezing business. For a group of women, it’s more than just shelving motherhood. In her article, Egg-freezing discussion shifts focus to insurance, she writes, “But that is not the main concern for some women who, because of illness or age, are worried that time is running out for them to have children. After their mid-30s, women can carry a pregnancy, but their eggs are less viable. Egg-freezing allows women to extend their fertile years.” Andrews interviews Brigitte Adams, 42, who was on the cover of Bloomberg Business Week for a feature story. “I’ve never met anyone who fits the mold of the stereotypical egg-freezer who’s career-mad and waiting for Mr. Right,” Brigitte Adams said in her interview. She continued, “A lot of women will tell you, ‘I didn’t expect to be here. I just want the possibility of having a child.’” Adams is certainly not the exception to the rule. In fact, her “type” is quite common. A divorced woman, now in her thirties, who thought the man she married, would be the father to her children. For women in this niche, they are becoming proactive. Adams paid the $12,000 egg-retrieval procedure from dipping into her savings and financial help from her family. Andrews writes, “Adams pays $300 annually to store her eggs, and she’s pondering becoming a single mother. Her marketing job at a tech start-up in Los Angeles doesn’t provide coverage for egg-freezing and storage or the in vitro fertilization that will be required if she decides to go ahead.” A total of 11 eggs are frozen and stored. She is also mindful the0se eggs may not result in a conception when the day arrives. Adams tells the reporter, “It’s not a silver bullet but it gave me the sense I’d done everything I could, and that has helped me tremendously to just move on.” According to Andrews, a couple of years ago, the American Society for Reproductive Medicine (ASRM) announced that the process of egg-freezing is not experimental anymore. According to ASRM, there is no difference in “pregnancy rates” in utilizing frozen or fresh eggs. Any concerns over birth defects and other abnormalities showed no link with frozen eggs. Andrews then interviewed Richard Reindollar, an executive at ASRM. “Yet insurance coverage for egg-freezing and other infertility treatments remains spotty,” he told Andrews. “Of all the disease processes, insurance coverage is available for essentially all of them, but not for infertility.” Indeed, this has sparked another disjointed health insurance plea for help. Andrews then interviewed America’s Health Insurance Plans. According to their spokesperson, Susan Pisano, her understanding was, “…that many plans cover egg-freezing when there’s a diagnosed fertility problem or when an individual is at risk for infertility because of such treatments as radiation therapy or chemotherapy. Coverage for nonmedical reasons is much less common.” Pushing forward in her research Andrews found the following through Mercer:
- On average, one-third of companies employing more than 500 offer no infertility coverage treatments or services
- High tech companies were more inclined to have infertility coverage in employee health and wellness policies
- Non-high tech businesses offered 26 percent for IVF and 14 percent for other procedures, like egg freezing
- In high tech, 45 percent in this industry covered IVF and 27 percent for other procedures like egg freezing
Quite a disparity, don’t you think? Now back to Facebook and Apple. They’re offering their employees up to $20,000 in egg freezing for either medical or non-medical issues. Dan Bernstein of Mercer in San Francisco tells Andrews, “Silicon Valley is probably leading the way (in coverage for egg-freezing) since competition is fierce and companies are always looking for ways to attract recruits.” Andrews went on to talk with EggBanxx. Their vice president, Jennifer Palumbo, shared that some insurance companies offer to help pay a portion of the consultation, medications, and some diagnostic testing. As we know, all health insurance plans differ. But one thing they will not typically cover is egg retrieval and harvesting. This is an out-of- pocket patient expense, because it’s probably considered elective in the mad world of health insurance. Andrews writes, “Infertility advocates would like to see more companies adopt egg-freezing policies, especially for women who are likely to become infertile as a result of chemotherapy.” Barbara Collura, president of Resolve, an infertility advocacy group told Andrews, “I think it’s amazing for people at these companies, but can we also get this covered for women with cancer?” Let’s hope all women are afforded the opportunity; and, that the New Year brings more rights to national and international laws for future parents and children born via surrogacy.Read More
Back in July, the European Court of Human Rights (ECHR) ordered all EU countries to recognize children born to surrogate mothers living abroad.
This was a huge leap for EU countries and its citizens. While surrogacy is still deemed illegal on French soil, as well as other EU countries, the ECHR ruled that children should be recognized, because not doing so undermines their identity.
The ECHR ruled, “France has the right to ban surrogate parenthood but not to refuse granting legal citizenship to children born to surrogate mothers.”
The two French couples tangled in the battle were the Mennesson and Labassee families. Both had children born in the United States. The Mennesson’s had twins in California and the Labessee family had a child born in Minnesota.
Five months later, after the ECHR’s ruling, France is getting reprimanded once again.
According to Annalisa Lista, a writer for West, she reports, “As for surrogacy, the French Council of State has confirmed what was already established by the ECHR,” she begins in her story. They have been, “rejecting the complaints of some associations against the Ministerial Circularsent by the Minister of Justice Christiane Taubira that grants the French citizenship to those babies born abroad through surrogate pregnancy.”
Lista points out the Council have once again reiterated the following, underscoring what the ECHR ruled:
- A person is of French nationality if at least one of his/her parents is French
- Being born abroad through surrogacy does not exclude the possibility of obtaining the French citizenship, even though it is illegal in France.
If a child meets the above requirements they are to be granted French citizenship. In ECHR’s Article 8 ruling, they specifically stated that doing so was the child’s, “right to the respect of their private life.”
France must recognize children born via surrogacy, and continuing to fight it is a losing battle as the ECHR has already made its ruling. What type of repercussions, if any, will France receive if they continue to disregard this fundamental right due to these children?
In the Leiden Law Blog, they clearly spell out their theory when France refused to register the Mennesson and the Labassee children in the French civil register.
Claire Achmad writes, “The Court decided although France had not violated the commissioning parents and children’s right to respect for family life, a violation of the child’s right to respect for private life (Article 8, European Convention for the Protection of Human Rights and Fundamental Freedoms) had occurred.” She goes on to say, “Although France and other parties to the Convention have a wide margin of appreciation (MOA) in relation to matters such as surrogacy, in these situations France had overstepped its MOA by refusing to recognize under French law children who had French biological fathers.”
In both cases, the fathers’ sperm were used in the embryo creation.
In this legal article they highlight the rights of children.
In deciding that the violation of Article 8 occurred only in relation to the children, Achmad reports, the Court emphasized the importance of the child’s rights involved.
“Its decision is primarily based on a view that the refusal to register the children meant the children’s right to preserve their identity was not properly protected.”
The reporter wants readers to know that under Article 8, France is mandated to protect the children in the UN Convention on the Rights of the Child, also referred to as CRC. The identity of a child is the crucial component under the European Convention in terms of right to respect for family life.
“In refusing to recognize under French law the biological link between the children and their fathers and preventing the acquisition of French nationality, the children were left in a position that was not in their best interests, as required under Article 3 of the CRC,” writes Achmad.
In her hypothesis, Achmad believes that the Mennesson and Labassee Court’s judgment will pave the way in other states restricting surrogacy which are part of the Council of Europe. Although they do not allow surrogacy, the ECHR ruling will more than likely nudge them in doing the right thing in regard to international surrogacy birth registration.
“This means the Court’s judgments will impact on many more children than just the three concerned in the Mennesson and Labassee cases. In its first decisions relating to international surrogacy, the European Court of Human Rights has been bold in finding violations of the rights of the child,” she reports.
France has been told that the rights of these children born through international surrogacy must be adhered to. We hope they acquiesce and do what they are morally and legally bound to do.Read More
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