ASRM Legally Speaking

Two Court Reversals: Father Gains Custody and Donor Awarded Maternity Rights of Donor Egg/Surrogacy Triplets; Lower Court Ordered to Decide if Surrogate Breached Valid Contract and Damages
In a complex, multi-state gestational carrier arrangement gone very wrong, new rulings have come down from courts in two different states, Ohio and Pennsylvania. The cases began when Danielle Bimber delivered triplet boys for their genetic father, James Flynn and his fiancée, conceived with donor eggs from a previously anonymous Texas egg donor, through a surrogacy contract drafted in Indiana. (Separate lawsuits are pending there against both the lawyer that drafted the legal agreement which failed to designate a legal mother and the program that facilitated the arrangement). Bimber initially obtained a Pennsylvania court order to take the boys home; Flynn filed suit in Ohio to regain custody and enlisted the egg donor to assert her maternity rights to bolster his custody claims. The boys lived with the Bimbers for approximately two years while the two state courts wrestled with the issues. The Ohio Court of Appeals ruled that the egg donor, Jennifer Rice, is the mother of the children, that the Bimbers breached the surrogacy contract by not relinquishing the triplets, and that surrogacy contracts are not against the public policy of Ohio. The Supreme Court of Ohio affirmed in part, but declined to uphold the breach of contract determination or damages award against the Bimbers because those issues had not been briefed at the Court of Appeals. The case has been remanded to the trial court to address those issues.

The Pennsylvania appellate courts have now vacated the prior Pennsylvania custody order in favor of Bimber, reversed the order terminating the egg donor's parental rights, and awarded the father full physical and legal custody of the triplets. J.F. v. D.B., 879 N.E.2d 740 (Ohio 2007); and 897 A.2d 1261 (Pa. Super. 2006), cert. denied, 589 Pa. 739 (2006)

Pennsylvania Reverses Child Support Order and Upholds Sperm Donor Agreement Between Former Lovers
The Pennsylvania Supreme Court has reversed two lower courts and ruled that an agreement to donate sperm to a former lover is enforceable and the donor is not liable for child support. The divorced mother of five-year-old twins attempted to seek child support from her former lover who provided sperm after their affair ended "in a clinical setting for IVF" per an arrangement that he would not seek visitation and she would not hold him responsible for supporting the child. The donor and woman had had limited contact following the successful IVF procedure, and the lower court found that the donor "never provided the children with financial support or Legally Speaking gifts, nor did he assume any parental identity." Although the two lower courts criticized the woman and recognized that there had been an oral agreement and that this was solely intended as a donation, rendering the agreement a binding contract, they found that any agreement not to support a child amounted to bargaining away a legal right held by a child, not any adult, and thus was unenforceable as against public policy.

In reversing, the Supreme Court acknowledged that this was a novel question under Pennsylvania law that potentially affected thousands of Pennsylvania families. The court noted, "the lone question we face is as simple to state as it is vexing to answer. We must determine whether a would-be mother and a willing sperm donor can enter into an enforceable agreement under which the donor provides sperm in a clinical setting for IVF and relinquishes his right to visitation with the resultant child(ren) in return for the mother's agreement not to seek child support from the donor." Referring to the (model) Uniform Parentage Act (UPA), not enacted as law in Pennsylvania, which does not require anonymity to protect a donor from parentage rights and obligations, the Court noted that the UPA "urges any sperm donor seeking to assert paternity" over any resulting offspring "to execute a writing manifesting that intent." The court went on to say a rigorous analysis was necessary to determine whether such an agreement would violate public policy. It then contrasted "traditional sexual reproduction" in which there is "simply no question" that the parties cannot contract between themselves to deny child support ,and "institutional donation" cases where there "appears to be a growing consensus" that no obligations or privileges are conferred on a sperm donor. Recognizing that between these "poles lies a spectrum of arrangements" and that future cases might be difficult to resolve, it found that this was not such a case. "Indeed, the parties could have done little more than they did to imbue the transaction with the hallmarks of institutional, non-sexual conception by sperm donation and IVF. They negotiated an agreement outside the context of a romantic relationship; they agreed to terms; they sought clinical assistance…, taking sexual intercourse out of the equation; they attempted to hide Sperm Donor's paternity from medical personnel, friends, and family; and for approximately five years following the birth of the twins both parties behaved in every regard consistently with the intentions they expressed at the outset of their arrangement…". "Assuming that we do not wish to disturb the lives of the many extant parties to anonymous, institutional sperm donation, we can only rule in Mother's favor if we are able to draw a legally sustainable distinction between the negotiated, clinical arrangement that closely mimics the trappings of anonymous sperm donation that the trial court found to have existed in this case and institutional sperm donation, itself. Where such a distinction hinges on something as trivial as the parties' success in preserving the anonymity they took substantial steps to ensure, however we can discern no principled basis for such a distinction."

The Court concluded with an assurance that it takes children's welfare very seriously, despite a ruling that denied support to children who "did not ask to be born into this situation." The court found that absent the agreement, the children would not have been born or would have been born using a purely anonymous sperm donor "who neither party disputes would be safe from a support order."

The implications of this case may be far-reaching. Pennsylvania, like some states, has no sperm donor statute, and, like most states, has no egg donor statute. Despite that absence of law, the court was willing to accept that the present state of family building and ART usage includes single parents who wish to access gametes in a variety of settings, and that agreements for those arrangements should not be automatically found unenforceable. The court clearly relied on what it considered the formality of the agreement and the consistency of its terms as a donation, despite it not being in writing. There is little doubt that a written agreement would have avoided the need to cull facts from the parties' behavior and conflicting testimony. In addition, the fact that five years had passed since the donation was helpful in establishing the man's donor status.

The significance of the case should also be considered in light of the recent decision by the Kansas Supreme Court (LS Winter '08) which ruled that a single male friend was a donor, not a father, because he failed to comply with that state's requirement of a written agreement to assume fatherhood status. Read together, both of these cases support permitting single men and women to enter into a binding donor-recipient agreement if they do so by appropriate means. This reasoning, if followed by other states, would give significant comfort as well as helpful guidance to both prospective single parents and those who wish to assist them as donors. Ferguson v. McKiernan, 940 A.2d 1236 (Pa. 2007).

RECAP: Vermont High Court Reaffirms Parental Status Based on Civil Union
Refusing to re-examine its earlier ruling, the Vermont Supreme Court has let stand a custody decision over a five-year-old child that has been bitterly contested in two states by a former lesbian couple. The case illustrates the significance of choice of law, and the strength accorded principles of "full faith and credit" since the Virginia courts were ultimately ordered by that state's high court to respect the Vermont court's orders on parentage and custody stemming from the civil union. The Vermont Supreme Court has now refused yet another attempt by Lisa Miller-Jenkins, the biological mother, to deny her former partner Janet Miller-Jenkins access to the child. The child was conceived in Virginia through artificial insemination. The couple moved to Vermont and entered into a civil union, but a year later, Lisa left the relationship and returned to Virginia. She subsequently argued that because Virginia does not allow civil unions, her former partner had no legal basis on which to be considered a parent. The Vermont court found her most recent appeal to be "nothing short of disingenuous" and her conduct "contemptuous." The Virginia Supreme Court was expected to rule in April on the question of whether it can be required to enforce the Vermont custody and access orders. Miller-Jenkins v. Miller-Jenkins, AP, Boston Globe (3/15/08)

Rising Interest in International "Reproductive Outsourcing" Generates Legal and Ethical Concerns...
The growing interest in "reproductive tourism" and "reproductive outsourcing," including a dramatic rise in Indian gestational surrogacy, has generated both legal and ethical concerns. The attraction is frequently described from a monetary perspective: the entire process can cost $25,000, which includes airfare, accommodations, and the surrogate's fee (typically $7,500 or less than 50% to 75% of the fee for arrangements within the U.S., but the equivalent of 10 to 15 years of normal income for the carrier) and significantly lower medical costs. Surrogacy is legal in India, and the carrier's name does not appear on the birth certificate. Many of the women live together in a group setting, physically attached to the IVF clinic. Some programs also offer egg donors.

One recent profile of Rotunda- the Center for Human Reproduction in Mumbai, which offers both surrogacy and egg donation, does not allow any of the parties to meet, and recently coordinated a process with a gay male Israeli couple, an Indian egg donor and an Indian gestational surrogate. The gestational surrogate was not told she was carrying a child either for a same-sex couple or foreigners. The article profiling the arrangement noted that "on some contracts, the thumbprint of an illiterate surrogate stands out against the clients' signatures." Other concerns have been raised about the carriers' level of understanding, including whether their lack of knowledge regarding with whom they are contracting undercuts any agreement; whether donor egg information is adequate for recipients; and whether immigration and citizenship issues are clearly and reliably established. The only clear issue is that, financially speaking, Indian surrogacy is a bargain for those who are seeking it out. NY Times, January 3, 2008, March 10, 2008; and Washington Post, January 2, 2008.

RECAP: U.S. Supreme Court Refuses to Hear Texas Frozen Embryo Dispute
Augusta Roman's final attempt to gain access to frozen embryos that her husband refused to allow her to implant when they were fresh or since (LS Spring 2006, Summer, 2007), appears to have met a final dead end. The U.S. Supreme Court has declined to hear the case, leaving the Texas state court ruling intact. The case was somewhat unique in that the husband's change of mind came literally on the eve of the initial transfer, creating the wife's novel argument that the program consent forms the couple signed three weeks before the IVF cycle, and which recognized the right to a change of mind and destruction in the event of a divorce, was only intended to apply to leftover embryos, not all embryos. Some observers had predicted that the U.S. Supreme Court might take the case as a vehicle to express more conservative "right to life" views of the status of embryos. Roman v. Roman, 193 S.W.3d 40 (Tex. App. Hous.1st Dist. 2006), cert. denied, 76 U.S.L.W. 3497 (U.S.2008) (3/17/08)

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