Legally Speaking

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

Canadian Court Deems Sperm Legal Property

Legally Speaking June 18, 2015

The British Columbia Court of Appeal upheld a lower court ruling that determined human sperm to be property for purposes of determining storage responsibilities under Canadian provincial law. Lam v. University of British Columbia, 2015 BCCA 2. The plaintiff represents more than  400 patients who froze their sperm after being diagnosed with cancer and prior to receiving chemotherapy treatment that would severely compromise or destroy their fertility. In 2002, power to the cryopreservation units at the University of British Columbia (where the specimens were stored) was interrupted and the specimens were destroyed. The plaintiffs sued the university for negligence and breach of contract. 

Anonymity of Fertility Preservation Patients Protected by the Court

Legally Speaking June 18, 2015

An Illinois court recently ruled that it was permissible to use pseudonyms to protect the identity of 40  plaintiffs in an ongoing malpractice case against an Illinois fertility center. Doe, et al. v. Northwestern Memorial Hospital, 2014 IL App (1st) 140212 In 2013, Northwestern University reported a malfunction of its cryogenic tanks that stored sperm and testicular tissue specimens, which were cryopreserved by patients intending to use them for future fertility procedures. Many of the specimens were stored by patients who subsequently underwent treatment for diseases that rendered them unable to have biological children without the cryopreserved specimens. The malfunction resulted in the damage or complete loss of the specimens. Forty of the affected individuals filed this claim against the hospital, its faculty foundation, the cryotank manufacturer and the vendor companies involved in the maintenance of the croytanks.

Fertility Preservation Patient Wins Custody Battle over Frozen Embryos

Legally Speaking June 18, 2015

The Illinois Appellate court recently handed down a decision in the five-year long struggle between Karla Dunston and her former boyfriend, Jacob Szafranski over cryopreserved embryos that they created together. In a two to one  ruling, the court affirmed the lower court ruling and granted Karla Dunston sole custody and control of – in the court’s carefully chosen  language, the three “pre-embryos.” Szafranski v. Dunston, 2015 IL App (1st) 122975

More Frozen Embryo Disputes

Legally Speaking May 19, 2015

Movie stars are once again making ART news. In this recent twist, an ex-fiancee, Nick Loeb, has filed suit seeking sole “custody” of two “female embryos” he created with actress and “Modern Family” star Sofia Vergara which he alleges have a “right to live.”

Sperm Donor Not Entitled to Notice of Married Lesbian Couple’s Co-Parent Adoption

Legally Speaking May 19, 2015

Massachusetts is once again in the forefront on same-sex marriage and parentage issues in a case clarifying the status of sperm donors whether known or anonymous.

Courts Continue to Confront International Cross-Border Surrogacy Cases

Legally Speaking May 19, 2015

In the past year there has been increasing legal scrutiny of cross-border surrogacy. Australia, France, and Italy are three countries that have had highly significant cases and emerging shifts in their national policies involving international surrogacy.   

Virginia court rules home insemination falls outside Assisted Conception law and man declared legal father

Legally Speaking May 19, 2015

The Virginia Court of Appeals on April 21st ruled in favor of a Robert Broadwine who provided sperm to his single friend, Joyce Bruce, for artificial insemination she performed in her home with a turkey baster.

Sperm Bank sued by parents of 7 year old

Legally Speaking May 19, 2015

A Canadian couple have sued their sperm donor and Xytex Sperm Bank after they learned contradictory information about the background of their 7 year old child’s sperm donor.

Shepherd-Sally Surrogacy agreement upheld

Legally Speaking May 19, 2015

On April 21st, a Pennsylvania trial court upheld the gestational surrogacy agreement between Sherri Shepherd, her estranged husband Lamar Sally, and gestational surrogate Jessica Bartholemew.  The couple had used donor egg and separated during the pregnancy, with Shepherd claiming the agreement was not enforceable, that she was not the biological or legal mother, and therefore had no financial or other responsibilities for the child.

US Tax Court clarifies that income received by egg donors is taxable income: guest author Nidhi Desai, J.D.

Legally Speaking February 20, 2015

On January 22nd, 2015, the United States Tax Court held that an egg donor’s compensation, despite being characterized as “pain and suffering,” is not excludable from income but is taxable gross income as defined under the IRS code (“I.RC.”). 

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