Category: Assisted Reproductive Technology

Surrogacy Contracts: Can You Return the Baby?

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Assisted Reproductive Technology on Thursday, December 10, 2015.

The View’s Sherri Shepherd had trouble conceiving, and hired a surrogate to carry her child. Then Sherri decided she didn’t want it. This holiday season people are asking: “Are babies returnable?”

This should be the kind of case Sherri Shepherd, and her co-hosts on The View, might have discussed on the air with righteous indignation and inflammatory tones!

Who walks away from a baby they paid very big money to bring into the world?

Sherri Shepherd and Lamar Sally married in 2011. They tried to have a child, but after difficulties, contacted Reproductive Possibilities, a company that facilitates surrogacy arrangements.

In Sherri’s surrogacy arrangement, a surrogate carrier was artificially inseminated with sperm from Lamar. Sherri provided no genetic material, but was the intended mother and a party to the contract.

Sherri’s surrogacy contract provided:

Intended Parents may terminate this Agreement in writing at any time for any reason, provided the Gestational Carrier has not undergone the IVF/Embryo Transfer. If the Gestational Carrier has already undergone the IVF/Embryo Transfer and Intended Parents wish to terminate this Agreement, they may only do so once it is confirmed that Gestational Carrier is NOT pregnant.

The contract also directed her to compensate the surrogate for certain expenses, and she paid over $100,000.00 to cover those expenses.

Five months into the pregnancy, Sherri refused to sign the relevant paperwork because she and Lamar were having marital difficulties.

The baby was born on August 5, 2014, and the surrogate went to court to have Sherri be declared the mother of the child. But Sherri responded that her surrogacy contract was against Pennsylvania public policy and unenforceable.

She lost her fight to have her name removed from the birth certificate of the son she had via surrogate, and she must continue paying child support for the 1-year-old boy being raised by her ex-husband.

This is a sad case in an otherwise happy area of law. Infertile parents have an unprecedented opportunity to enjoy the rewards of parenting where before they couldn’t.

I’ve written about assisted reproductive technology before. Florida has set itself apart as a haven for Artificial Reproductive Technology, as our laws make the process less prone to legal problems. Florida is also one of the few states that permits intended parents to establish the parental status to a child born through assisted reproduction without a paternity/adoption process.

However, Florida statutes make detailed provisions that must be followed for a contract for it to be enforceable.

The People magazine article is available here.

Do-It-Yourself Artificial Insemination & Custody

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Assisted Reproductive Technology on Wednesday, April 29, 2015.

Assisted Reproductive Technology (ART) usually involves combining eggs with sperm, and returning them to a woman’s body in a licensed lab. But in a pinch, will a turkey baster in your kitchen do the trick?

Joyce Bruce wanted to conceive a child, without the involvement of a father. She mistakenly thought that if she became pregnant without having sex, the biological father, Robert Boardwine, would not have custody rights.

She approached her longtime friend, Boardwine, and asked him to be a sperm donor. He agreed, but they never signed a written contract regarding any resulting pregnancy.

To become pregnant, he would stop by her house and would give her a plastic container containing his sperm. She would then use a turkey baster to inseminate herself. They did not go to a doctor’s office or to a medical facility.

On July 7, 2010, she discovered that she was pregnant. They never had sex, never lived together, and they do not intend to live together.

Their relationship deteriorated when she would not agree to his suggested name for the child. She did not inform him of the birth and did not list him on the birth certificate.

The Father filed a suit to establish his rights with the child, since he was the biological father. She argued that since she used “noncoital reproductive technology” to get pregnant, he was only a sperm donor without rights.

The trial court found that when he provided his sperm, the parties intended for him to be a legal father, and awarded joint legal and physical custody as well as visitation.

The Virginia appeals court held that “medical technology” in the Children of Assisted Conception Act, does not mean a turkey baster. So ART law does not apply.

As funny a situation is it sounds, it is a serious problem. Florida is very advanced in this area of law, and is one of the few states that permits intended parents to establish the parental status to a child born through ART without a paternity/adoption process.

As I’ve written before, ART statutes make detailed provisions that must be followed for a contract for it to be enforceable. If you’re looking at your kitchen implements as a form of do-it-yourself home pregnancy device, think about the legal risks.

The opinion is here.

Modern Family: Sofia Vergara and Fertility Agreements

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By The Law Offices of Ronald H. Kauffman of Ronald H. Kauffman, P.A. posted in Assisted Reproductive Technology on Monday, April 20, 2015.

There has been a big increase in Assisted Reproductive Technology (ART). In Vitro fertilization and other ART now accounts for 3 of every 100 children born here. Without an agreement though, the modern family can end up in court.

Consider the legal battle actress Sofia Vergara is waging with ex-fiancé Nick Loeb over frozen embryos. Sofia Vergara’s former fiancé has filed a lawsuit in California to stop her from destroying a pair of frozen embryos created while they were engaged.

The ex-fiancé filed the lawsuit after the two broke up for good in an attempt to save two cryo-preserved female embryos created through in vitro fertilization.

“He is trying to save two female embryos from destruction,” a source close to Loeb said.

According to court documents, Loeb, sued Vergara last August to “ensure that the female embryos” are kept safe, because Vergara “refuses to agree to their preservation under all circumstances.” The suit also names as a defendant the clinic where the embryos are being held, the Art Reproductive Center in Beverly Hills.

At the time of undergoing fertility, people should not only sign agreements but think about this really carefully. The options are: Do you want the embryos destroyed? Do you want to divide them between the two of you? Do you want to donate them to research? It’s important to think about that when you and your partner get along.

Most clinics use consent forms that require both patient and a partner to answer specific questions about what to do if the couple splits up or one of them dies, experts say.

In Loeb and Vergara’s situation, they answered questions about what should happen in the case of one or both of their deaths, but not separation, according to court documents.

I’ve written about this before. Florida has set itself apart from other states as a haven for ART. Our laws make the process less prone to legal problems. Some states and countries ban these practices altogether.

Florida is very advanced in this area of law, and is one of the few states that permits intended parents to establish the parental status to a child born through assisted reproduction without a paternity/adoption process.

However, Florida statutes make detailed provisions that must be followed for a contract for it to be enforceable. If you’re thinking of slapping together a “do it yourselfer” contract, think again, you could face legal risks.

The CNN article is here.

Beware of Sperm Donating Vampires!

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On behalf of Ronald H. Kauffman, P.A. posted in Assisted Reproductive Technology on Monday, May 19, 2014.

If you’re wondering if a sperm donor is a parent of your child, or you’re an intended sperm donor using divorce to impregnate your girlfriend and worried about your rights, be afraid. Be very afraid.

Way before Twilight made vampires sexy, there was The Lost Boys. For the last two years, The Lost Boys actor Jason Patric has been battling a different kind of vampire, and searching for his own lost boy.

Jason and his girlfriend Danielle tried to get pregnant, but the attempts went cold. In 2009 they paid for artificial insemination. Gus was born, named after the Mother’s family, and Gus’s middle name, Theodore, was for the Father’s family.

The couple broke up, and Jason filed for paternity and shared custody. The Mother drove a stake through the heart of the father-son relationship by withholding visits. She claimed he was threatening and hostile.

California has conflicting statutes in its Uniform Parentage Act. One statute says that a person is presumed to be a natural parent if he meets certain conditions, like receiving the child into his home and openly holding out the child as his natural child.

The other statute in the UPA says that a man who donates sperm to a licensed physician for use in a woman other than his spouse is not the natural parent of a child unless agreed to in writing. I’ve written on Assisted Reproductive Technology (ART) before.

Jason and Danielle had no agreement, but he held the child out as his natural child and received the child into his home. At trial, the judge agreed with the Mother, and the Father appealed.

Last week, the Second Appellate District Court in Los Angeles ruled in favor Patric – proving a vampire’s lawsuit can rise from the dead. The case was remanded back to the trial court to hear Patric’s claims to having received the child into his home and holding himself out as his son.

Florida is very advanced in ART law, and is one of the few states that permits intended parents to establish the parental status to a child born through ART without a paternity/adoption process.

However, Florida statutes make detailed provisions that must be followed for a contract for it to be enforceable. These are not contracts for “do it yourselfers” you buy at The Home Depot.

Anyone interested in knowing more, should take steps before the process to avoid these costly and personally devastating custody cases.

The Jason Patric case is available to be read here.

Assisted Reproductive Technology Fraud

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On behalf of Ronald H. Kauffman, P.A. posted in Assisted Reproductive Technology on Friday, January 17, 2014.

There has been a big increase in divorce (ART). ART involves removing eggs from ovaries, combining them with sperm in a lab, and returning them to the woman or donating them to another. ART now accounts for 3 of every 100 children born in the U.S. ART offers opportunities for parenthood, but is also a ripe area for fraud.

The majority of ART usage involves couples undergoing in vitro fertilization – this is called 1st Party assisted reproduction. A growing number of procedures though use third-party collaborators who act as sperm donors, egg donors, and gestational carriers.

Most 3rd Party ART procedures are done without complication or incident. However, a recent article from the American Medical Association confirms what we already know, that we must be aware of and plan for potential misconduct.

Donor Misconduct

Donors may go through extensive screening, but, they may not be truthful when filling out their profile. Two large areas to be aware of are:

(1) Donor’s intention to claim parental rights over resulting child.

Parents intending to solicit donors shouldn’t presume donors will waive their parental rights. There have been a few cases where donors change their minds. Florida is a leading state in the enforceability of gestational surrogacy agreements.

(2) Donor health histories.

What happens when a donor reveals to a doctor a previously undisclosed health problem, such as a family history of cancer, depression, or prior meth addiction? Lies in a profile about health-related matters threaten the well-being of a potential child.

Surrogate Parenting Misconduct

Surrogate parenting allows a married infertile couple to contract with a woman to gestate a child, and then relinquish it after birth. We memorialize this in detailed gestational surrogacy agreements. Two big areas of concern include:

(1) The intended parents hide the fact that they are getting divorced when the agreement calls for the child being born into an intact marriage.

(2) A surrogate fails to comply with the contractual ban on coffee, chocolate, or alcohol use on a regular basis.

Infertile parents have an unprecedented opportunity to enjoy the rewards of parenting. Florida has set itself apart as a haven for ART, as our laws make the process less prone to legal problems. Some states and countries ban these practices altogether.

Florida is very advanced in this area of law, and is one of the few states that permits intended parents to establish the parental status to a child born through assisted reproduction without a paternity/adoption process.

However, Florida statutes make detailed provisions that must be followed for a contract for it to be enforceable. If you’re thinking of slapping together a “do it yourselfer” contract, think again, you could face legal risks

A Landmark Assisted Reproductive Technology Case

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On behalf of Ronald H. Kauffman, P.A. posted in Assisted Reproductive Technology on Monday, December 9, 2013.

From in vitro fertilization to surrogacy, medical techniques are expanding the hope of parenthood to a wide diversity of couples. In a landmark ruling the Florida Supreme Court invalidated Florida Statutes 742.13 and 742.14, to the extent they don’t protect the parental rights of same sex parents who use divorce.

A couple had a lesbian relationship for 11 years. After agreeing to have a child together, an egg from T.M.H. was fertilized and implanted into D.M.T., who gave birth. The procedure was paid for with joint funds.

In 2006, the couple separated, and the child stayed with D.M.T., who received child support payments from T.M.H. Eventually, D.M.T. moved with the child to Australia.

D.M.T won at trial arguing that Florida does not recognize the parental rights of egg donors in same-sex relationships, only if the donation is from a heterosexual “commissioning couple”, but lost on appeal.

The Florida Supreme Court considered the exclusion of same-sex couples from the definition of “commissioning couple” as violating the federal and state Due Process Clauses and the state privacy clause, and as violating the state and federal Equal Protection Clauses.

“It would indeed be anomalous if, under Florida law, an unwed biological father would have more constitutionally protected rights to parent a child after a one night stand than an unwed biological mother who, with a committed partner and as part of a loving relationship, planned for the birth of a child and remains committed to supporting and raising her own daughter.”

The Court found excluding same-sex couples from the definition of “commissioning couple” did not serve to provide certainty to couples who use assisted reproductive technology.

While creating parenting opportunities once thought unattainable, medical technologies also introduce a host of legal complexities and uncertainties.

If you want to have a successful surrogacy procedure, you need a clear understanding of Florida law and the obligations of each party, as well as legal documents establishing parentage upon birth of the child.

The Florida Supreme Court opinion in D.M.T. v. T.M.H., can be found here.

Can Unfertilized Egg Freezing be considered Alimony?

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On behalf of Ronald H. Kauffman, P.A. posted in Assisted Reproductive Technology on Monday, September 9, 2013.

Many people divorce without ever having had children. Not because they did not want children, but because they couldn’t. While a man may be able to walk away from a marriage and start a new family, for many women it may be biologically too late.

What can be done? One solution appears to be assisted reproductive technology in an interesting case from New Jersey.

A 38-year-old woman in New Jersey is asking for her soon to be ex-husband to pay to have her eggs frozen as part of her divorce settlement, in case she decides to have children in the future. The procedure could cost up to $20,000.

Freezing embryos, women’s eggs fertilized with sperm, has been done in fertility clinics for decades, but now science has improved upon freezing unfertilized eggs to use in the future.

In recent years, scientists have figured out how to freeze and thaw unfertilized eggs from women, allowing them to freeze their eggs now, and thaw them in the future, when they are ready to have children.

You might not know when your baby-making days are up, but you can calculate what it’s worth to preserve them. Figures vary by woman and by clinic, but the formula involves the cost of extraction surgery and freezing ($5,000 to $13,000, generally speaking), the number of eggs you can expect to get, the number you’re advised to stash away, your clinic’s success rate and the number of children you want.

All of a sudden, fertility has been assigned a value. If the point of a divorce settlement is to take inventory of a couple’s joint life and divide the assets, then that commodity belongs on the negotiating table – alongside vacation time-shares and projected earnings from his and her M.B.A.’s.

In the New Jersey case, a married couple tried several times at in vitro fertilization during their marriage without success. As part of the divorce case, the wife is now arguing that since in vitro fertility treatments were part of the marriage, they should be considered part of their marital lifestyle, which should be maintained as much as possible after the divorce.

The Wife’s attorney is essentially arguing that the Husband should pay for the freezing of her eggs for a future in vitro treatment. In a sense, she can walk away from the marriage and start a family just as her future ex husband can. You can read more about this unique situation in the New York Times.