A bill now pending before the Missouri House Children and Families Committee, HB 2558, and a similar bill pending in the senate, would severely undermine the legal underpinnings of all gestational surrogacy contracts in the state, and throw all forms of assisted reproductive technology into complete and utter chaos. The bill places “in vitro human embryos” into the same statutory framework with custody actions for children in the Missouri family court system. It requires courts to consider the “best interests” of the embryo, and presumes that it is in the embryo’s best interests to be transferred to someone who will give the embryo the best chance to develop and grow.
First, the bill creates an additional “custody” action where it should be crafting a separate embryo disposition statute. Today, most cryo-preserved embryos undergo a “flash freeze” on day 3, being less than 16 cells. Embryos that were frozen several years ago would have been frozen no later than day 5. In determining the legal status of these pre-implanted cryopreserved embryos, the Tennessee Supreme Court, in one of the first embryo disposition cases decisions in Davis v. Davis in 1992 concluded that pre-embryos are not, strictly speaking, either “persons” or “property,” but occupy an interim category that entitles them to special respect because of their potential to develop to birth. No court or legislature has elevated embryos to a legal status of “person” or declared its sole best interest “to be transferred to develop to birth.” Not only would this bill entirely ignore the fitness of the party seeking to bring the embryo to birth, but it would mandate a “one size fits all” disposition approach in every case, regardless of the particular circumstances.
Instead of mandating a single statutory analysis applicable to all embryo disputes, a better approach would be to require all patients to execute a written embryo disposition agreement. Almost all IVF clinics require patients to sign an embryo disposition form prior to the creation of any embryos indicating their choice for disposing of any untransferred embryos. Among the dispositional choice include freezing the embryos for the patients’ subsequent use, donating them to another family to use, donating them to science, or degenerating them. These dispositional directives also address what to do in the event of the death or divorce of the intended parents, including whether the remaining embryos can be used by just one of the parties to create more children. The American Medical Association recommends this approach. AMA Code of Medical Ethics Op. 2.131 (June 1994). In almost all cases where a prior written disposition agreement exists, those agreements have been upheld and enforced by the courts. Without written directives, courts wrestle with determining the parties’ intent at the time the embryos were created and balancing the needs of each of the intended parents. There is a well-established body of case law from around the country with a variety of approaches to resolving these dispositional disputes. Two opinions by the Illinois appellate courts in Szafranski I (2013 Ill. App.) and Szafranski v. Dunston (2015 Ill. App.) provide an excellent overview of embryo disposition cases. An example of an embryo disposition statue from Florida accompanies this letter.
Second, this bill would completely negate any agreements governing parentage in sperm and egg donation contracts, gestational surrogacy agreements, and embryo disposition agreements. There is no more private decision by individuals and couples than the power to decide when and how they will become parents. By creating a custody cause of action over embryos, instead of a carefully crafted embryo disposition statute, this bill will disempower Missouri citizens from planning their own fertility treatments. How far back will this bill apply: to all existing frozen embryos in Missouri or only those frozen from enactment of the bill forward? How many families and clinics would be forced into these disputes that they believed were resolved by written disposition agreements? What government public policy or interest is promoted by establishing a policy that 16 cell embryos have a “best interest” to be transferred and developed? What studies support this conclusion? How many years will embryos be frozen in legal limbo, and who will be required to pay for their indefinite storage? What if the best interest of the embryo is not to be transferred and developed in a particular case? What if the winning donor is not a fit parent, not capable of supporting a child, or dangerous to a child?
This bill takes very personal and constitutionally protected family building decisions out of the hands of the intended parents, prohibits them from making other appropriate dispositional choices for their embryos, limits their choices regarding their future family building options, voids all prior agreements, and permits one gamete donor to force the other to procreate over his or her objection. It also restricts the courts’ ability to balance the rights and interests of the parties by mandating that the courts’ decisions be presumptively based on who will transfer and develop the embryos to birth.
Finally, this bill would open the floodgates to litigation in Missouri courts to custody actions by sperm and egg donors, as well as gestational surrogates carrying a child not genetically related to her (even though the statute excludes from the definition of “in vitro human embryo” human embryos located within a female womb). It would completely deprive intended parents who have created embryos to have a family using either donated egg or sperm of any legal security over their embryos. Indeed, by allowing “any other party involved in the negotiations for the creation of the in vitro human embryo at issue” to have standing to petition the courts to intervene, the statute invites doctors, lawyers, IVF clinics, donor and surrogacy matching programs, social workers, friends and relatives to intervene in a custody dispute that should involve only the intended parents. The family courts are already burdened with litigation involving the best interests of children in custody disputes – children who have already been born. To now foist upon these courts the added responsibility of litigating the custody of sixteen-cell embryos would be fiscally irresponsible and would deprive existing families of already scarce resources.
This bill would be an absolute catastrophe for infertile couples in Missouri, or anyone using a gestational carrier or gamete donor from Missouri. RESOLVE (the National Infertility Association representing 7.3 million Americans, including more than 128,000 Missouri residents), ASRM (the American Society for Reproductive Medicine) and AAARTA (the American Academy of Assisted Reproductive Technology Attorneys) have all gone on record strongly opposing this bill.[Read More...]
Two days ago, a Pennsylvania appeals court ruled that gestational surrogacy contracts were enforceable in that state, despite the absence of any legislation. The court turned back the efforts of Sherri Shepherd to evade her parental responsibilities for a child born to a Pennsylvania carrier. Ms. Shepherd and her husband had created an embryo with the husband’s sperm and a donor egg which they obtained through a reputable and experienced donor program, Tiny Treasures. They had located the gestational carrier with the assistance of Reproductive Possibilities, Melissa Brisman’s gestational carrier program in New Jersey.
The appeals court rejected Ms. Shepherd’s claim that gestational carrier agreements should be found to be void as against public policy. The court noted that Ms. Brisman had arranged hundreds of gestational carrier births in Pennsylvania, and that Pennsylvania’s Department of Health had a policies and procedures in place regarding assisted conception and the creation of birth certificates in such cases. The court also took note of the well drafted contracts, both for the gestational carrier agreement and the egg donor agreement, which made it clear that neither the donor nor the carrier had any parental rights to a child born as a result of the agreements. The contracts also explicitly spelled out the intent of Ms. Shepherd and her husband to be the legal parent of any child born to the gestational carrier that they had chosen. Ms. Shepherd and her husband had also sent emails to the carrier expressing their gratitude for what she was doing for them, attended medical appointments and ultrasounds, and made it abundantly clear by their actions and words that they intended to be the parents of the child.
This case provides important persuasive authority for gestational carriers in all states that do not have a statute explicitly controlling gestational carrier arrangements. The carrier for Ms. Shepherd faced the daunting prospect of hospital bills for the child, and also claims for child support from California where Ms. Shepherd’s estranged husband had relocated (since Ms. Shepherd had refused to place the child on her health insurance).
Like Pennsylvania, Vermont’s Department of Health has long had policies and procedures in place governing the amendment of birth certificates and gestational carrier arrangements. Gestational carrier births have been occurring in Vermont for more than fifteen years. We also have a growing body of Vermont Supreme Court case law which has determined parentage based on the expressed intent of the parties, such as in the Miller-Jenkins case which I have discussed in earlier blogs. The Baby S. case certainly reinforces the need for well drafted contracts in these arrangements to ensure that the intent of the parties throughout the process is enforced when a child is born.
Ms. Sheperd’s actions were, in my opinion, reprehensible and amoral. It is a common fear among intended parents of that gestational carriers might refused to turn a child over to them after a birth. However, this is extremely rare nationally, and has never happened in Vermont. The majority of the reported cases around the country involve litigation between the intended parents.
As we approach Thanksgiving this year, this case gives us something else to be thankful for, that is the enhanced enforceability of properly drawn gestational carrier agreements, and the stability provided for the gestational carriers and the children born as a result of these agreements. We are also thankful for the extraordinary legal efforts of the attorneys involved in this case on behalf of the carrier and Ms. Shepherd’s husband, and for the final legal work of Melissa Brisman who drafted the gestational carrier agreement and who was an important witness at the trial. Thanks also to Tiffany Palmer, Esq., who represented the husband, and Craig Bluestein, Esq. the guardian ad litem.[Read More...]
NPR recently hosted a discussion regarding the handful of states refusing to place both parents’ names on the birth certificate of a child born to same-sex couples. The U.S. Supreme Court decision does mention the benefit of the legalization of same-sex marriage and birth certificates, but litigation is pending in some states as to whether they are required to do so.
In Vermont, a child born during a marriage is presumed the child of both parents, regardless of their genders. Both parents of a same-sex couple may also be placed on that child’s birth certificate born in Vermont. However, depending on the couple’s choices in assisted reproduction, the birth certificate may first have to be amended by a Vermont-issued court order.
During the story, the National Center for Lesbian Rights (NCLR) recommends that, despite being on the marriage and birth certificates, non-biological same-sex parents should still legally adopt their children. This is due to the inconsistency or lack of assisted reproduction laws. The NCLR says that non-biological parents remain vulnerable, and that “this fight for family equality is the next phase of same-sex rights.”
To listen to the NPR story, please visit:
To learn more about the NCLR initiative for family equality, please visit:
Michelle A. Tarnelli, Esq., of MURDOCH HUGHES & TWAROG Attorneys at Law, P.C., will be attending the AAAA/AAARTA Mid-Year Conference “Coming Together to Address Family Building Challenges” in Chicago, Illinois on Sunday, October 4 through Tuesday, October 6, 2015.
The ARTs fall conference will offer cutting edge CLE’s on: Health Insurance and the ACA; International Practice Issues; Same Sex Parentage Updates; Medical Advances in Assisted Reproduction, ART 101, and more.
The Conference, which focuses exclusively on assisted reproductive technology law, will offer multiple introductory and advanced sessions. Attorneys from across the country and abroad will be available to share knowledge and practical experience.[Read More...]
Senator Patrick J. Leahy Honors Kurt M. Hughes as an Angel in Adoption™ To Be Recognized at National Event in Washington, D.C.
Burlington, Vermont – July 30, 2015 – Senator Patrick J. Leahy has selected Kurt M. Hughes, Esq., of MURDOCH HUGHES & TWAROG Attorneys at Law, P.C., as a 2015 Angels in Adoption™ awardee for his outstanding advocacy of adoption issues. The Congressional Coalition on Adoption Institute (CCAI), which orchestrates the Angels in Adoption™ Program, will honor Mr. Hughes at an awards ceremony on October 6 and gala on October 7 in Washington, D.C.
Kurt Hughes is being honored for his selfless service and tireless dedication to many deserving families of Vermont. He has helped large numbers of Vermont families in their process of adoption. He has also served pro bono in many cases before the court, especially in proceedings involving the termination of parental rights. Kurt was one of the first Vermont lawyers to become a member of the American Academy of Adoption Attorneys, a prestigious, invitation-only association of attorneys practicing in the field of adoption law. He is now known to many throughout Vermont as one of the most distinguished and trusted adoption attorneys. Kurt’s recognition of the true needs of families in their pursuit of adoption and his compassion for justice has certainly raised the bar for adoption attorneys. Kurt Hughes has long been recognized as one of Vermont’s most outstanding adoption attorneys, making him well-deserving of this honor.
The Angels in Adoption™ Program is CCAI’s signature public awareness campaign and provides an opportunity for all members of the U.S. Congress to honor the good work of their constituents who have enriched the lives of foster children and orphans in the United States and abroad. This year, more than 150 “Angels” are being honored through the Angels in Adoption™ program.
“The Angels in Adoption™ Program is a unique annual opportunity in the nation’s Capital to shine a well-deserved spotlight on the power of adoption and the unspoken heroes who have made the dream of a family a reality for children. Since the program’s inception, over 2,200 Angels have come to Washington to share their firsthand adoption experiences with Members of Congress, highlighting its joys, as well as the barriers encountered in the process,” said Becky Weichhand, Executive Director at CCAI. “Members of Congress are then able to use their new experiential understanding of these issues to create policy improvements that better support these children and the families that open their hearts and homes to them.”
In addition to the more than 150 Angels from around the country, National Angels in Adoption™ honorees will be recognized at the gala for their dedication and commitment nationally and internationally to child welfare on a grand scale. This year’s National Angels in Adoption™ honoree is singer Rachel Crow. Former National Angels include Korie and Willie Robertson, Deborra-Lee Furness Jackman, First Lady Laura Bush, Patti LaBelle, Jane Seymour, Muhammad Ali, the late Dave Thomas, Steven Curtis Chapman, Bruce Willis, Alonzo Mourning, Rhea Perlman and Kristin Chenoweth.
CCAI is a 501(c)3 nonpartisan organization dedicated to raising awareness about the tens of thousands of orphans and foster children in the United States and the millions of orphans around the world in need of permanent, safe, and loving homes through adoption.
CCAI was created in 2001 by the active co-chairs of the bicameral, bipartisan Congressional Coalition on Adoption, one of Congress’ premiere caucuses. The goal of the caucus is to eliminate policy barriers that hinder these children from realizing their basic right of a family and more effectively raise Congressional and public awareness about adoption.
The Angels in Adoption™ Program was established in 1999 as a Congressional press conference to honor outstanding individuals. Since then, the program has developed into a yearlong public awareness campaign, culminating in an extraordinary awards gala and celebration in Washington, D.C.
CCAI does not receive any government funding and relies on the generous support of foundations, corporations, and individuals to accomplish this mission. For more information, visit www.ccainstitute.org or www.angelsinadoption.org.[Read More...]
Last month, I began the discussion about whether the courts here in Vermont would enforce a properly drawn gestational surrogacy agreement. While I concluded that the courts would enforce such contracts, I still strongly believe that we need legislation reinforcing these judicial opinions. As more and more couples turn to gestational surrogacy as a family-building option, these families need the legal stability and predictability that only legislative action can provide. Indeed, the Court continues to cry out for legislation in its published opinions concerning parentage claims. See Moreau v. Sylvester, 2014 Vt. 31 (“[g]iven the complex social and practical ramifications of expanding the classes of persons entitled to assert parental rights by seeking custody or visitation, the Legislature is better equipped” to address this issue. Id. Deference to the Legislature continues to be prudent “because the laws pertaining to parental rights and responsibilities and parent-child contact have been developed over time solely through legislative enactment or judicial construction of legislative enactments.”)
Contrary to the misconceptions generated by a few high-profile cases, it is seldom the gestational carrier who tries to negate the intent of the parties. Rather, it is usually the genetic intended parent who tries to disenfranchise the non-biological intended parent, as in the Miller-Jenkins case. There are also aberrations such as Sherri Shepherd’s recent despicable attempt in Pennsylvania to repudiate her own parentage to a child born to a gestational carrier. Thus, the legislature needs to act to ensure the enforceability of parentage for both intended parents, regardless of their genetic connection to their child. The best interests of children born through gestational carrier arrangements demands nothing less.
The Texas case of Berwick v. Wagner, decided in 2014, is one of many cases reinforcing this point. Berwick and Wagner were a same-sex couple, married in Canada in 2003. They undertook a gestational surrogacy arrangement in California, using Berwick’s sperm and a donor egg. They obtained a pre-birth order (PBO) from a California court confirming that 1) both Berwick and Wagner were the legal parents of the unborn child, 2) the surrogate and her husband were not the parents of the child and 3) Berwick and Wagner were to be listed on the birth certificate as the child’s parents.
The child, CBW, was born and the parties lived together in Houston for several years. In 2008, they split up and both filed actions for custody of CBW. Like Lisa Miller-Jenkins, Berwick claimed that since Wagner was not biologically related to the child he had no legal standing to pursue custody. After a two-week jury trial, Wagner was awarded sole custody of CBW.
Like so many of these cases, complicated fact patterns are often decided on relatively simple legal principles. The full faith and credit clause of the U.S. Constitution gives a court order from one state validity in every state of the union. In affirming the custody award to Wagner, the Texas Supreme Court ruled that “[w]hen presented with a final judgment from another state, Texas may not first look behind the judgment to determine if Texas agrees with the law and application of that law giving rise to it before deciding whether Texas will recognize and enforce it. . . . Our decisions support no roving ‘public policy’ exception to the full faith and credit due judgments.”
The bottom line here is that the ability of intended parents to obtain pre-birth orders is critically important. The legislature needs to act to make this option available to Vermonters. The fix could be as simple as changing a few words in our parentage statute, which currently allows a determination of parentage only after the birth of a child. Amending this statute to allow a determination of parentage at any time would allow intended parents to obtain judicial orders of parentage prior to the birth of their child, thereby helping to ensure the legal integrity of their family unit. While a broader statute confirming the enforceability of gestational surrogacy agreements would be preferable, this simple amendment to the parentage act would be a great start.[Read More...]
The Indian Child Welfare Act of 1978 (ICWA) is a federal law that sets forth federal requirements to state child custody proceedings that involve an Indian child who is a member or is eligible for membership in a federally recognized tribe.
ICWA guidelines, which provide guidance to states regarding ICWA requirements, have been unrevised since the initial publication in 1979.
The Bureau of Indian Affairs (BIA) has issued new guidelines and announced a proposed regulation in an effort to consistently implement ICWA in all states.
The proposed rule does not come without controversy. The National Association of Counsel for Children (NACC) recently published a two-part blog where child welfare lawyers debate the new proposed regulation including issues surrounding equal protection, due process, statutory authority, preservation of the Native American culture, and the civil rights of birth parents and children:
The open comment period on the proposed rule ends tomorrow, May 19th.[Read More...]
During the fifteen years or so that I have been writing and negotiating gestational surrogacy contracts, I have often wondered if I should be working to have legislation passed that would help guarantee the enforceability of these contracts.
According to a September 2014 article by Tamar Lewin published by the New York Times, seventeen (17) states have laws permitting surrogacy and five (5) states have statutes declaring surrogacy contracts to be void and unenforceable (relying on statistics compiled by attorney Diane Hinson’s Creative Family Connections). Sandwiched between New York (which makes paid surrogacy arrangements a felony) and New Hampshire (which passed a comprehensive statute allowing surrogacy in 2014), Vermont is one of twenty-one (21) states with no statute governing surrogacy.
So without a statute, how do we know that a surrogacy contract using Vermont law would be enforceable? The short answer is “we don’t” but the longer answer leads me to believe that the Vermont Supreme Court would ultimately uphold the enforceability of a properly drawn contract, especially regarding the all-important question of parentage.
My optimism comes mostly from language in the infamous case of Lisa Miller-Jenkins v. Janet Miller-Jenkins, 2006 VT 78. In that case, Lisa was the biological mother of a child conceived by a sperm donation with the intention that the child would be co-parented with her civil union partner, Janet. The Vermont family court issued an order that determined that both parties were the parents of the child, who was three years old at the time they split. The court awarded primary custody (“parental rights and responsibilities”) to Lisa and gave Janet visitation rights (“parent-child contact”). Lisa appealed the family court’s order, claiming that Janet was not the child’s biological parent and therefore had no rights.
In rejecting Lisa’s argument, the Vermont Supreme Court examined the parentage statute, which provides that a child born during the marriage (or civil union) of two parties is presumed to be the child of both parties. Rather than relying on this statute, the court used the 1985 case, Paquette v. Paquette, 146 Vt. 83. In Paquette, the Court held that a step-parent who assumed the role of a parent (acting “in loco parentis”) with respect to a child could be awarded custody over the biological parent under extraordinary circumstances.
The Court worried that if Lisa’s position was accepted in the Miller-Jenkins case, the result would leave all children born through artificial insemination with only one parent (unless adopted by the second parent). The Court wrote, “Such a holding would cause tremendous disruption and uncertainty to some existing families who have conceived via artificial insemination or other means of reproductive technology . . . .” 2006 VT 78, ¶ 48.
Referring to an adoption case involving a same-sex couple prior to the enactment of the civil union statute (In re B.L.V.B., 160 Vt. 368 (1993)), the Court noted that it was again facing a dispute in which the legislature has not dealt directly with new reproductive technologies and the families that result from those technologies. “Nonetheless, the courts must define and protect the rights and interests of the children that are part of these families . . . We express, as many other courts have, a preference for legislative action . . . but in the absence of that action, we must protect the best interests of the child.” 2006 VT 78, ¶ 52.
Ultimate, the Court looked to the intent of the parties to determine parentage for Janet.
The Court found it extremely persuasive that Janet and Lisa were in a valid legal union at the time of the child’s birth. Also, it was the expectation and intent of both Janet and Lisa that they would co-parent this child. Janet participated in the decision to go forward with the artificial insemination and she actively participated in the prenatal care and birth of the child. Lisa also named Janet as the co-parent in the dissolution paperwork, and there was no other claimant to parentage (as the sperm donor was anonymous). The Court noted that “virtually all” modern decisions from other jurisdiction supported finding Janet was a parent of the child under a variety of legal theories. “We adopt the result in this case as a matter of policy, and to implement the intent of the parties.” Id. at ¶ 57.
Therefore, there appears to be strong support in Vermont’s case law for a finding of parentage in favor of the intended parents in a gestational surrogacy arrangement. In a disputed case, it is my opinion that if a child was born in Vermont to a gestational surrogate, and the carrier and the intended parents each had independent legal counsel and a competently drafted contract before the birth, the courts would uphold the enforceability of the contract with regard to parentage. Some additional considerations would enhance the chances for enforceability: (1) the carrier should obviously not have any genetic connection to the child. This is called a “traditional” surrogacy and is fraught with extreme legal risks; (2) the intended parents should ideally be married. This is especially important for same-sex couples, and intended parents using donated egg or sperm; and (3) the intended parents should get a pre-birth order in their home state if possible. While not a requirement, having a judicial determination of parentage is the one thing that will protect a couple in every state of the union.
So . . . if the Vermont courts will likely uphold a surrogacy contract, why do we need a statute? More on that in my next installment!
This article is featured as Part One of a series on the Vermont Surrogacy Network blog.[Read More...]
MURDOCH HUGHES & TWAROG Attorneys at Law, P.C., has once again received a Tier 1 Ranking in the 2015 Edition of U.S. News – Best Lawyers’ “Best Law Firms.” This ranking was determined through the firm’s overall evaluation, which is derived from clients’ feedback and the high regard from their peers in the same practice areas.
James W. Murdoch, Kurt M. Hughes and Frank Twarog have been repeatedly recognized by their Vermont peers in both the Best Lawyers in America and New England SuperLawyers for legal representation of clients in all areas of Divorce and Family Law and Federal and State Criminal Defense. In addition, they represent clients in the areas of Adoption Law, Surrogacy, Donor Contracts and Assisted Reproductive Technology as well as personal injury matters. Michelle A. Tarnelli, an associate with the firm, has contributed to the success of the firm with her work in Divorce and Family Law and Adoption Law.[Read More...]
his weekend, Kurt Hughes and Michelle Tarnelli are attending the 21st Annual Fertility Treatment, Donor Choices and Adoption Conference, hosted by RESOLVE New England in Marlborough, Massachusetts.
The conference provides a comprehensive approach to the latest information, updates and discussions through its five-featured workshop tracks: treatment; adoption; donor options and surrogacy; emotional health; and complimentary and financial. The key note speaker is Judy Carr, the first woman to give birth after IVF in the United States. For more information on the conference, click here.
Kurt Hughes and Michelle Tarnelli concentrate in assisted reproductive technology (ART) and adoption law, including gestational surrogacy contracts, gamete donor contracts, interstate and step-parent adoptions, and contested termination of parental rights litigation in the probate courts throughout Vermont.[Read More...]