A column highlighting recent court decisions affecting the assisted reproductive technologies and the families they create, written by Susan L. Crockin, J.D.
“Legally Speaking: A Column Highlighting Recent Court Decisions Affecting the ARTs and the Families They Create” returns to ASRM amidst extraordinary legal developments impacting the assisted reproductive technologies. The column will appear online monthly in ASRM News, with links to court decisions for those who wish to delve directly into the courts' opinions. There will be guest authors to add expertise and unique perspectives related to significant legal topics. “Legally Speaking®” will continue its commitment to not only report on new and noteworthy court cases but also analyze their potential impact and significance on the practice of ART. --Susan Crockin, JD
June 22, 2016
The Louisiana legislature passed a bill addressing gestational surrogacy; and Governor John Bel Edwards signed it into law on June 15th. The new law provides for enforceability of gestational carrier agreements, but only if they meet certain requirements. Among other things, the law requires that: the intended parents be a heterosexual, married couple who have undergone a background check and obtained pre-transfer court approval; no donor gametes or embryos are used to form the embryos; and no payment other than reimbursement for actual expenses (including lost wages) may be made to the gestational carrier.
April 18, 2016
A jury returned a large verdict in a medical malpractice lawsuit filed
against a Maryland IVF physician who did not order medical records of a
Pennsylvania gestational surrogate carrier. The suit was brought by the
parents of a child who died 21 days after being delivered at 25 weeks
due to their gestational carrier’s preeclampsia. She had failed to
disclose she had had preeclampsia in her most recent prior pregnancy.
The parents, Andrew and Marni Hotchkiss, from Bethesda Maryland, sued,
claiming the doctor was screening prospective gestational carriers on
their behalf, that they would have rejected this carrier based on her
actual medical history, and that the failure to order and review the
gestational carrier’s medical records was malpractice. The gestational
carrier, Christina Jensen, had reported having had four previous healthy
pregnancies, but failed to disclose she had delivered six children, the
most recent of which was delivered prematurely as a resulted of
preeclampsia. The jury’s $44.1 million damage award will be reduced to
under $1 million under Maryland law which caps non-economic damages.
March 21, 2016
A trial court in St. Louis, Missouri has sparked controversy, and an appeal, after resolving a dispute between divorcing spouses by awarding them joint control over their cryopreserved embryos. (McQueen-Gadberry v. Gadberry, 4/15).
February 15, 2016
According to news reports, Melissa Cook, a 48-year-old California gestational surrogate pregnant with triplets has filed a lawsuit challenging the constitutionality of California’s surrogacy laws. Cook, who was matched through a California surrogacy recruiting program, agreed to carry male triplets for a single intended father created with his sperm and eggs from a 20-year-old donor. Cook is due in March. She and the intended father, known as C.M. in the media, have been in the news with dueling accusations by their attorneys after she refused C.M.’s request to selectively reduce to twins. Cook claims the request was based on the inability of the intended father (reportedly a single, 50-year-old, deaf postal worker who lives with his parents in Georgia) to financially support the children. C.M.’s attorney claims the request was made for medical reasons.
December 16, 2015
A Pennsylvania intermediate appellate court has affirmed a lower court’s
ruling that Sherri Shepherd is the legal mother of “Baby S,” a child
born as a result of a gestational carrier arrangement entered into in
Pennsylvania, using an anonymous donor and Shepherd’s then- husband’s
sperm. The court expressly ruled that a gestational carrier contract is
enforceable under Pennsylvania law, and upheld Shepherd’s child support
payments as the legal mother. In its November decision, the appellate
court cited and quoted extensively from the multiple legal agreements
the parties entered into with one another, as well as those the intended
parents entered into with both the gestational carrier and egg donor
recruiting programs, all of which reflected Shepherd’s explicit desire
and intent to be a mother through the arrangement.
December 16, 2015
A long-awaited trial court decision over a frozen embryo dispute has
come down squarely on the side of the ex-husband and the medical program
whose documents the former couple signed before undergoing IVF. (Findley v. Lee,
11/18/15). The case involved a divorcing couple and their differing
views on disposition of their cryopreserved embryos, created after the
woman’s diagnosis of breast cancer early into their three-year marriage.
November 11, 2015
There has never been a time when Canada’s fertility laws have been more
relevant to the international community. Various international surrogacy
destinations such as India and Nepal have very recently closed their
borders to foreigners looking for surrogacy services, creating demand
for these services in other jurisdictions. Recently, many seeking to
engage in surrogacy are considering Canada because of its high quality
healthcare services, proximity to the United States, and LGBT-friendly
laws and attitudes. However, only altruistic surrogacy and egg donation
are permissible in Canada; and therefore some Canadians seek various ART
services in the United States.
September 18, 2015
This month, as IVF pre-implantation embryos once again dominate legal
news with an international court upholding Italy’s ban prohibiting a
widow’s embryo donation for research (Parillo v. Italy, ECHR
8/27/15), and appeals pending in the U.S. over disputed control over two
former couples’ pre-implantation IVF embryos U.S. cases (Findley v. Lee (CA) and Szanfranski v. Dunston (IL), Legally Speaking
pauses to pay tribute to the visionary Dr. Howard W. Jones, Jr.
(1910-2015). Dr. Jones’ impact reached far beyond the medical aspects
of assisted reproduction, and he leaves a perhaps less recognized, but
similarly singular legacy on three related fields: ART law, policy and
ethics. This month’s column highlights a few of those notable
accomplishments and their impact.
August 14, 2015
Surrogacy involving Australian intended parents has been big
international news of late. The infamous “Baby Gammy” case, where an
Australian couple left for home without their male twin born with Downs
syndrome to a Thai surrogate, has highlighted both the demand of, and
the potential risks of, working with Australian couples overseas.
Australian courts and government officials, on both federal and state
levels, have been involved in addressing recent controversies. This
guest column by Australian lawyer Stephen Page presents an overview of
the current state of ART law and practice involving Australians seeking
to build families overseas.
July 22, 2015
On June 26th, 2015 the Supreme Court of the United States(SCOTUS) issued its long-awaited decision on same-sex marriage, ruling that the right to marry is a fundamental Constitutional right recognized under the 14th Amendment that cannot be denied to same-sex couples. As a result of the Court’s 5-4 decision, every state must now issue marriage licenses and recognize marriages between same-sex couples. The decision reflects a remarkably swift change of law and policy that began only in 2003, with the first such legal recognition handed down by the Massachusetts Supreme Judicial Court in its ground-breaking 2003 Goodrich decision. Goodridge v. Department of Public Health, 440 Mass. 309, 798 N. E. 2d 941 (2003).