Reproductive Legal Update: October 2009

October’s monthly legal update begins with a story out of New York, where a Long Island Surrogate Court ruled that a man with a criminal past can still qualify as an adoptive parent. The next item in this month’s update also focuses on potential parents and their criminal past. A new law in Australia requires individuals or couples undergoing in vitro fertilization procedures to first complete police checks. The purpose of the law is to prevent child abusers from having children through assisted fertility procedures. Third, there is exciting news out of the United Kingdom where same-sex female partners can now register themselves as co-parents of children born to either of them in the marriage. The fourth item in this month’s legal update discusses an Ohio woman who is eight months pregnant with a child that was conceived when the infertility clinic at which she was a patient transferred the wrong embryo into her uterus. Finally, this month’s legal update ends with a discussion of recommendations made by an expert panel in Ontario, Canada endorsing government funding for assisted fertility procedures and the freezing of embryos.

Many people seeking to adopt children fear that any blemish on their character will make them ineligible to adopt. This is not so, according to a recent decision by the Nassau County, New York Surrogate’s Court. In a case entitled In the Matter of the Adoption of Unknown, Nassau County Surrogate John B. Riordan ruled that a man with a history of crime and drug addiction can be pre-approved as an adoptive parent. The potential adoptive father, now 47 years of age, told the court that his prior crimes and convictions were a result of a drug addiction which he has now conquered. He was first arrested in 1978, when he was 17 years old, and he was most recently convicted in 1995. Over that time period, he was charged with a variety of criminal offenses, including disorderly conduct, attempted burglary, burglary, petit larceny, and possession of stolen property. Ever since his release from prison in 2000, the man has been clean and sober, gainfully employed, and has had no further run-ins with the law. The court noted that the man had never been accused or convicted of a violent crime. Further, the Judge stated that the man “has demonstrably devoted himself to rebuilding his life” and that “the prospective adoptive father’s criminal activities define his past rather than his present.” Therefore, the court ruled that his past criminal record should not preclude him from adopting.

Infertile individuals and couples residing in Victoria, a state in the southwest corner of Australia, are angered by a bill passed into law by the state’s parliament late last year. The new law is entitled the Assisted Reproductive Treatment Act of 2008. The law mandates that a police background check is a pre-requisite for people undergoing in vitro fertilization. The reasoning behind the requirement is to ensure that individuals seeking to have children through IVF are not child abusers. While the law is now in force, the Victorian government does not have the resources to enforce the requirement. Some IVF clinics are asking patients to volunteer for the checks. One leading IVF physician in the state has described the requirement as “stupid.”

Individuals and couples who find themselves subject to the new law argue that it is discriminatory because fertile couples living in the state who can conceive without assistance are not required to undergo any kind of background check prior to achieving pregnancy. Infertile individuals and couples argue that they should not be subject to requirements for conceiving a child that fertile couples are not also required to meet.

Following in the steps of certain U.S. states and other foreign countries, the British government has announced that lesbian couples that have a child together through IVF will both be recognized as parents on the birth certificate of the child. The announcement that a biological mother’s female partner can now register as the co-parent of a child born within the relationship was made on September 1, 2009. The law applies retroactively to April of 2009, so couples who have had children since April benefit from the change. However, couples with children born prior to April must still adopt in order to have both partners recognized as legal parents. It should be noted that this law applies to female couples only, but supporters of the law hope that change will come for male couples soon.

An Ohio woman, Carolyn Savage, has garnered attention in recent weeks when news agencies discovered that she became an unintentional gestational carrier for another couple. Ms. Savage and her husband are parents to three biological children, conceived using assisted fertility procedures. At the age of forty, Carolyn and her husband were told that she could only carry one more pregnancy and the couple decided to have their five remaining embryos transferred into her uterus. Unfortunately, the clinic transferred the wrong embryos into Carolyn Savage’s uterus.

The Savages faced a difficult choice. They could either terminate the pregnancy – an option that conflicted with their religious beliefs – or they could carry the fetus to term and give the child to its biological parents. The Savages decided to continue the pregnancy. At present, Carolyn Savage is 35 weeks pregnant with a healthy baby boy and is preparing to hand the child over to its biological parents upon his birth.

As for the Savages’ five remaining embryos, the couple intends to work with their own gestational carrier and continue their journey to expand their family.

Finally, the findings of a government-appointed expert panel on infertility and adoption in Ontario, Canada have recently stirred some controversy in the province. The panel concluded that assisted reproduction, such as in vitro fertilization, should be funded by the provincial government. More specifically, the panel recommends funding up to three rounds of IVF treatment for women up to 42 years old, estimated at a cost of $10,000 per cycle. The panel also recommended that the government fund the freezing of embryos. The panel was initiated in June 2008 with the intention of finding solutions for people who are struggling to begin or grow their family and the panel was charged with recommending ways of making both fertility treatments and adoption more accessible and affordable to Ontario’s residents.

The panel’s recommendations are based on its belief that government funding of assisted reproductive technologies and the freezing of embryos will save money overall. The panel argues that by subsidizing the treatment and normalizing assisted reproduction through a government-run accreditation process, couples will no longer feel compelled to implant as many embryos. This will reduce multiple pregnancies and, correspondingly, reduce expensive medical complications that result from such pregnancies. Similarly, the panel argues that it costs significantly less to freeze and store good embryos, than complete fresh cycles. Therefore, if the government will only fund a fresh cycle after a woman who has good quality frozen embryos remaining uses those embryos in two frozen cycles, this policy will minimize fresh cycles and their higher cost.

The panel criticized the federal Assisted Human Reproduction Act, the current law in Canada, which imposes criminal sanctions and prohibitions on Ontario residents seeking to utilize certain third party assisted reproduction methods, including commercial ovum donation and surrogacy. The panel argued that the law does not stop these individuals from taking advantage of these third party assisted reproduction methods, but instead, simply forces them to go “underground” to find compensated donors and/or gestational carriers.

By: Melissa B. Brisman is an attorney who practices exclusively in the field of reproductive law and is considered by her peers to be a leader in her profession. Ms. Brisman’s experience and qualifications are unparalleled. She employs an experienced and qualified staff of legal and administrative professionals and is licensed to practice law in Massachusetts, New Jersey, New York and Pennsylvania. Ms. Brisman has a practice, Melissa B. Brisman, Esq., LLC, located in Montvale, New Jersey, offering a full range of legal services in connection with gestational carrier arrangements, ovum, sperm, and embryo donation, and adoption. In addition, Ms. Brisman is sole owner of Reproductive Possibilities, LLC, an agency that facilitates gestational carrier arrangements, and Surrogate Fund Management, LLC, a company that manages escrow in connection with reproductive arrangements.

By: Lauren Cuozzo is an attorney licensed to practice in New York and New Jersey. She is an associate at the firm, Melissa B. Brisman, Esq., LLC, and focuses her practice solely on transactional and litigation work associated with reproductive law. Ms. Cuozzo can be reached at .(JavaScript must be enabled to view this email address).

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Reproductive Legal Update: October 2009

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