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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

Three States Address Parentage Claims and Rights of Former Same-Sex Couples

Legally Speaking November 08, 2016

Three recent appellate court decisions in New York, Arizona and Massachusetts, all recognizing the parental rights of non-biological intended parents, harbinger an increasing judicial awareness that genetics alone cannot fairly determine legal parentage of a child born through third-party reproduction.

Court Rulings in Two Sperm Bank Lawsuits and other Legal News

Legally Speaking September 12, 2016

In July, an Illinois state court dismissed an Ohio woman's lawsuit against Midwest Sperm Bank, which allegedly mistakenly provided her with sperm from Donor 380, not Donor 330. The former donor is African American; the latter is Caucasian. The mother, Jennifer Cramblett is Caucasian and after giving birth to a biracial daughter, sued for the costs of counseling, relocating to a more diverse area, and other damages.

Courts Continue to Shape Parental Status Law & U.K. Court Awards Custody to Gestational Surrogate

Legally Speaking July 18, 2016

At least four cases are working their way through state courts addressing the legal parental status and rights of former same-sex partners who have no genetic connection to the children they and their former spouse or partner had been raising. Maryland’s highest court, its Court of Appeals, reached a decision in one such case in July, Conover v. Conover. Similar cases are pending in Massachusetts, New York, and Florida.

Louisiana Surrogacy Bill and Cases of Interest

Legally Speaking 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.

Surrogacy Litigation Continues to Make Headlines

Legally Speaking 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.

Missouri Embryo Dispute on Appeal: guest author Raegen N. Rasnic, J.D.

Legally Speaking 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).

Surrogacy Cases Continue in the News and Courts

Legally Speaking 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. 

Shepherd-Sally Surrogacy Agreement Upheld by Pennsylvania Appellate Court

Legally Speaking 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.

California Trial Court Upholds Couple's Agreement with UCSF and Orders Pre-embryos Discarded

Legally Speaking 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.

A Legal Primer on Fertility Law in Canada

Legally Speaking 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.  

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