Articles Posted in Assisted Reproductive Law

8-10-09-193-thumb-667x1000-60849As gestational surrogacy continues to increase in the United States, so do opportunities to observe its trends and outcomes. Many states presently permit gestational surrogacy, although the laws vary by state and are rapidly evolving. Researchers from the University of Iowa Hospital and Clinics, Division of Reproductive Endocrinology and Infertility compiled information regarding the below trends arising from the continued practice of gestational surrogacy in the United States:

  • In the past 15 years, the number of gestational carrier cycles has grown by more than 470%.
  • Almost 70% of fertility clinics throughout the country now offer gestational surrogacy.

IVFThe American Society of Reproductive Medicine (“ASRM”) recently issued an Ethics Committee opinion regarding the appropriate terminology for the donation of embryos. The opinion is consistent with the modern sentiment that “embryo donation” is the proper term, rather than “embryo adoption”. The Ethics Committee asserts that using the term “embryo adoption” is inaccurate and misleading, as it “reinforces a conceptualization of the embryo as a fully entitled legal being and may lead to a series of legal proceedings associated with the adoption of born children.”Although the legal status of embryos varies by state, the ASRM affords embryos a “special significance compared with gametes because of their potential to become persons,” but does not consider embryos persons. The committee contrasts embryos with children in an adoption, which relates to the establishment of parentage in “existing children.”

The Committee reasons that conferring embryos the same status as an “existing child” is harmful and can impose unnecessary burdens on embryo recipients. For example, adoption elements such as home studies and judicial proceedings are “appropriately absent” from embryo donation, which is first and foremost a medical process. Additionally, for the last fifteen years, the Committee has taken the position that embryo donation more closely resembles human reproduction than it does adoption. The Committee perceives embryo donation as a “fundamentally medical procedure intended to result in a pregnancy,” thus warranting its distinction from adoption.

Although embryo donation is a medical procedure, it involves legal elements as well. For example, an embryo donation agreement is highly recommended and encouraged. Therefore, it’s imperative that Intended Parents consult with an experienced reproductive law attorney before embarking on this journey.

Constitutional
A California woman, Melissa Cook, who agreed to act as a surrogate for a single man, is seeking custody of one of the children after giving birth to triplets. The intended father allegedly requested a reduction, as he only wanted twins. Cook is challenging the constitutionality of a clause in the contract that allegedly allowed the intended father to request a reduction.

Californian law currently permits commercial surrogacy, but Cook is aiming to change that, hoping that the court will deem both the contract and the law unconstitutional. Cook’s lawyer claims that children born through a surrogacy arrangement have a “fundamental right to get to know and love their mother,” and that the current law in California violates that right.

After a state court ruled against her, Cook appealed and is now waiting for a decision. The court will determine whether a surrogate mother has any parental rights and whether commercial surrogacy is constitutional. The court will also consider whether a surrogate may be sued for damages by an intended parent.

Donor eggs.jpeg
Denmark’s parliament has decided to nearly triple the pay that women who donate eggs may receive. There has been a shortage in available donor eggs, which has led some women to go abroad in search of egg donors, where the cost is far greater. This decision is expected to increase the number of donor eggs, which will make it easier for Danish citizens to have children.

The parliament’s decision seems to follow a trend of easing restrictions on egg donation. As in Kamakahi v. ASRM et al., where limits on compensation to egg donors were struck down, Denmark’s parliament chose to change an overly restrictive limit on compensation. In Kamakahi, the overturned guidelines stated that payments exceeding $10,000 were “not appropriate.”

Earlier this year, the parties in Kamakahi reached a settlement after four years of litigation. The terms of the settlement include the removal of the language stating that “[t]otal payments to donors in excess of $5,000 require justification and sums above $10,000 are not appropriate. “The ASRM has also agreed not to make any future dollar amount recommendations for donor compensation. Although the settlement did not result in a monetary award for the class members, they are permitted to file an individual lawsuit to recover damages.

when-the-bough-breaks.jpgLast week, one of our staff members went to the movies and saw a trailer for a film called “When the Bough Breaks.” The movie features a married young professional couple unable to conceive naturally, so they decide to pursue surrogacy. They match with a seemingly perfect surrogate and she becomes pregnant with their child. As her pregnancy progresses, she develops an obsession with the intended father, and attempts to seduce him. When he dismisses her advances, she becomes psychotic and threatens to hurt the baby. According to the official synopsis, “the couple becomes caught up in [the surrogate’s] deadly game and must fight to regain control of their future before it’s too late.” Sony Pictures Entertainment is marketing the film as a thriller, using the tagline “Find out how #ItAllWentWrong.” Our staff member was not only appalled by the entire plotline, but also by disturbing scenes such as one where the surrogate dangles a knife over her belly after the intended father rebuffs her advances.

While such plots make for juicy storylines that may attract moviegoers, these depictions of surrogacy are inaccurate and misleading. Surrogacy is normally an overwhelmingly positive experience for both the intended parents and the gestational surrogate. Gestational surrogates are scrupulously screened by agencies. Many fertility clinics require that the intended parents and the surrogate complete a mental health evaluation prior to starting the surrogate’s medications. The parties must usually stipulate in their surrogacy agreement that they have undergone mental health evaluations and that they have discussed the potential psychological risks with a mental health professional. In the unlikely event that something goes wrong, it hardly resembles the plot in “When the Bough Breaks.” More realistic issues that may arise can include disagreements during the contract negotiation phase, pregnancy complications requiring bed rest, or insurance-related uncertainties. Agencies, clinics, physicians, attorneys, social workers, and other professionals work tirelessly to ensure that gestational surrogacy arrangements are based on the underlying principle of good faith. While the emergence of problems in a surrogacy is not inconceivable, the level depicted in “When the Bough Breaks” is extreme and sensationalized.

To those who enjoy thrillers and plan to “find out how #ItAllWentWrong” when the film hits theaters in September, we encourage you to keep in mind that this movie does not accurately represent surrogacy. For an excellent and thought-provoking read on another recent misrepresentation of surrogacy, this time on television, check out this blog post by attorney Rich Vaughn from the International Fertility Law Group.

embryo.jpgLast summer, we blogged about Kamakahi v. ASRM et al., the egg donor price-fixing class action lawsuit. Two former egg donors initiated the federal claim in 2011. The lawsuit alleged that price guidelines followed by fertility clinics violated antitrust laws by limiting the amount of compensation women can receive for their eggs. The guidelines stated that in regard to compensation for egg donors, justification is required for sums of $5,000 or more, and total payments exceeding $10,000 are “not appropriate.” The plaintiffs further contended that by agreeing to the guidelines created by the American Society for Reproductive Medicine (“ASRM”) and the Society for Assisted Reproductive Technology (“SART”), the fertility industry conspired to restrain trade and fix prices.

Earlier this year, the parties reached a settlement after four years of litigation.The terms of the settlement include the removal of the language stating that “[t]otal payments to donors in excess of $5,000 require justification and sums above $10,000 are not appropriate.”The ASRM has also agreed not to make any future dollar amount recommendations for donor compensation. Although the settlement did not result in a monetary award for the class members, they are permitted to file an individual lawsuit to recover damages. The ASRM will also provide $5,000 to each of the four named plaintiffs (Lindsay Kamakahi, Chelsea Kimmel, Justine Levy, and Kristin Wells).

The attorneys of Harden Jackson Law are devoted to servicing clients in all areas of family law, including divorce, custody, child support, property division, paternity, post-divorce modifications, prenuptial and postnuptial agreements, simple wills, adoption, surrogacy, and other areas of reproductive law. For more information, please contact us at 317.569.0770 or www.hardenjacksonlaw.com.

Infertility.jpgOne in eight couples experiences infertility in the United States. While infertility awareness is growing, people facing infertility may encounter insensitive and hurtful comments (though not always intentional). A brief refresher on infertility etiquette is a helpful way to minimize these uncomfortable experiences. Read on for some Dos and Don’ts when talking to friends and loved ones experiencing infertility.


Do

Listen. Show them that you care by listening to them if they choose to open up about their infertility struggle. Lend an ear and remain attentive as they share their experience with you.

Gavel and Earth2.jpgOnce the gestational surrogacy agreement is executed, the legal work is not always complete. Depending on the state, Intended Parents may need to establish their legal parentage in the courts. Intended Parents pursuing this route file pleadings with the court and then obtain a court order declaring their parentage (assuming the court grants their petition). The terms “pre-birth order” or “post-birth order” may come to mind here, and Intended Parents should consult with an attorney to determine what the state’s laws permit as well as what type of court order they should seek. This begs the question of where the Intended Parents should file for parentage.

Intended Parents should file for parentage in the state where the child is born. They must complete all of their court pleadings and any other necessary legal documents in accordance with the laws of that state. This is especially important to note for Intended Parents who live in a different state than the Gestational Surrogate. It’s imperative that Intended Parents consult with an experienced reproductive law attorney who is familiar with that state’s surrogacy laws to assist them with filing for parentage. Remember that surrogacy laws vary among the states, and each state may have different procedures to establish legal parentage.

The attorneys of Harden Jackson Law are devoted to servicing clients in all areas of family law, including divorce, custody, child support, property division, paternity, post-divorce modifications, prenuptial and postnuptial agreements, simple wills, adoption, surrogacy and other areas of assisted reproductive technology law. For more information, please contact us at 317.569.0770 or www.hardenjacksonlaw.com.

baby hand.jpgWhile a family building journey brings much excitement, it’s also important to address the difficult but necessary subject of estate planning. Estate planning documents can prevent the additional stress and disorientation should tragedy afflict the intended parents or the gestational surrogate.

It is highly recommended that the intended parents establish or amend their existing estate planning documents to reflect the child that the gestational surrogate is gestating. This should involve designating a guardian for the child, unequivocally stating the child’s legal parentage, and establishing financial support for the child in the event of the intended parents’ death. Additionally, if the intended parens have stored cryopreserved embryos or other genetic material, their disposition should be addressed in the estate planning documents (absent a separate disposition agreement).

The gestational surrogate should also establish or amend her existing estate planning documents to reflect the child. This typically involves stating that the child is not biologically related to her and does not inherit from her, and designating the intended parents as guardians of the child in the event of her death. It’s also important for the gestational surrogate to execute a document (such as a power of attorney) expressing her desires regarding life support and selecting a designee to carry out her wishes should she become incapacitated during the pregnancy.

egg donation.jpgKamakahi v. ASRM et al., a putative class action lawsuit filed in 2011, has been making headlines lately. Two former egg donors brought the federal lawsuit, alleging that price guidelines followed by fertility clinics violate antitrust laws by limiting the amount of compensation women can receive for their eggs. The plaintiffs further contend that by agreeing to the guidelines created by the American Society for Reproductive Medicine (ASRM) and the Society for Assisted Reproductive Technology (SART), the fertility industry conspired to restrain trade and fix prices. The guidelines presently state that in regard to compensation for egg donors, “sums of $5,000 or more require justification,” and “sums above $10,000 are not appropriate.” The Northern District of California permitted the case to move forward earlier this year, and it will likely reach the trial stage next year. Below is a summary of the general arguments supporting each side of the lawsuit.

Arguments Supporting Kamakahi

• The pricing guidelines set by the ASRM and the SART, where 90% of the U.S.’s fertility clinics are members, constitute illegal price-fixing. Women are deprived of a free market to compensate them for donating their eggs, permitting fertility clinics to generate large profits for themselves.