Gay couple faces legal fight with sperm donor

Posted by in Fertility, Infertility, Sperm Donation, Uncategorized

6195548_GAnother 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.

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Company egg-freezing branches off to another level

Posted by in Egg Freezing, Fertility, Infertility, Uncategorized

apple fb 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.” egg freezingIndeed, 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.

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France gets chided regarding international surrogacy

Posted by in Surrogacy, Uncategorized

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.”

afp-f9b835352908dedc48a3ad6e73c5ed9a0a62744eThe 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:

  1. A person is of French nationality if at least one of his/her parents is French
  2. 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.

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 The battle for frozen embryos

Posted by in Fertility, Infertility, IVF, Uncategorized

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.”

IVFSince this time, Szafranski and Dunston have been entangled in a legal battle.

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.

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Serbia Considering Surrogacy

Posted by in Infertility, IVF, Surrogacy, Uncategorized

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.

A7GEAW_2378638bThe article estimated there were nearly 300,000 who were battling with infertility in this country.

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.

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Jason Patric case moves forward still garnering attention

Posted by in Infertility, IVF, Sperm Donation, Uncategorized

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.

FFN_Flynet_j_patrick_091311__Apollo_Zeus_50817034Sifting through the recent print media barrage, there’s one article that did get it right.

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.”

 

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Topeka Sperm Donor Case Back In The News

Posted by in Sperm Donation, Uncategorized

11860837The 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.

Reporter, Jan Biles of CJOnline.com writes that Swinnen said, “The Kansas Department for Children and Families has failed to disclose its experts in accordance to state statute.”

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.

 

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