Soliciting Surrogacy in the Hallowed Halls of Congress

By Judith Daar

Joining the ever growing circle of workplace misconduct targeting women’s bodies is the revelation that Representative Trent Franks (R-Ariz.) will resign his seat amid allegations that he solicited two female staffers to serve as gestational carriers and bear his children. In a characteristically defensive resignation letter, Franks bemoans the difficulties he and his wife experienced in forming their family, detailing their multiple miscarriages, failed attempts at adoption, and ultimately joy at the birth of twins with the help of a “wonderful and loving lady” who carried the couple’s children to birth. Wanting to grow their family when the twins reached three, the congressman admits that he “broached a topic that, unbeknownst to me until very recently, made certain individuals uncomfortable.” Those individuals were subordinate female employees who have the right to work in an environment where their boss cannot ask without warning, “Will you be my surrogate?”

Aside from the obvious addition to the constellation of misconduct premised on the assumption that the female body is fair game in service of male desires, this latest affront holds an irony that should not be lost on us, as well as lessons for the broader regulation of assisted reproductive technologies. As to irony, Arizona is one of a dozen states that outlaws surrogate parenting arrangements. The state’s family code provides, “No person may enter into, induce, arrange, procure or otherwise assist in the formation of a surrogate parentage contract.” This means that surrogacy agreements are unenforceable at law, but legal experts report that intended parents – like the Franks – are willing to take the risk and hope a court will recognize their legal parentage either before or after the children are born. While Rep. Franks did not reveal if his surrogacy contract was executed under Arizona law, odds are he and his wife sought judicial approval of their parental rights in the state he represents in Congress. Continue reading

TODAY, 4/17 at 5 PM! Health Law Workshop with Judith Daar

April 17, 2017, 5-7 PM
Hauser Hall, Room 104

Harvard Law School, 1575 Massachusetts Ave., Cambridge, MA

Download the Presentation: “A Clash at the Petri Dish: Transferring Embryos with Known Genetic Anomalies”

Judith Daar is Professor of Law at Whittier Law School with a joint appointment at the UCI School of Medicine. She focuses her teaching and scholarship at the intersection of law, medicine and ethics. Her interdisciplinary work in law and medicine focuses in the area of reproductive medicine, where she holds leadership positions including Chair of the American Society for Reproductive Medicine Ethics Committee. In 2005, Professor Daar became Chair of the Association of American Law School’s Section on Law, Medicine and Health Care, and in 2006 she was named to the Board of Directors of the American Society of Law, Medicine & Ethics. She was elected President of ASLME in 2009 and re-elected for a second term in 2010. In 2007, she was appointed to the Society for Assisted Reproductive Technologies, Committee on Informed Consent in ART, an interdisciplinary group of physicians and attorneys charged with drafting a model informed consent document for patients undergoing in vitro fertilization. From 2008 to 2012, Professor Daar served as Associate Dean for Academic Affairs. In 2012, she was elected to the American Law Institute.

Professor Daar is a member of the UCI Medical Center Medical Ethics Committee, where she serves on the Bioethics Consultation Team. She has also served as a member of the Harbor-UCLA Hospital Institutional Review Board, and the ABACoordinating Group on Bioethics. Professor Daar has lectured extensively in the field of reproductive medicine, including giving testimony to the California legislature and the National Academies of Science, Committee on Science, Technology, and Law on the issue of oversight and regulation of reproductive medicine. Her scholarship focuses in the area of assisted reproductive technologies where she has authored over one hundred articles, book chapters, editorials and white papers on topics including stem cell research, human cloning, frozen embryo disputes, the use of genetic technologies and the regulation of reproductive medicine. Her first book, Reproductive Technologies and the Law, was published in January 2006, with a second edition appearing in 2013. Her most recent book, The New Eugenics: Selective Breeding in an Era of Reproductive Technologies, will be published by Yale University Press.

Surrogacy Contracts Directly Enforcible in Pennsylvania

By John A. Robertson

Surrogacy is legal in many states.  Some, like California, directly enforce gestational carrier contracts.  Others, like Texas, Illinois, and Virginia, enforce only those contracts that are entered into by a married couple who need a surrogate for medical reasons which a judge approves before embryo transfer occurs.  A Pennsylvania court has now shown why gestational surrogacy contract should be directly enforced in the absence of legislation.  Its well-reasoned opinion suggests that more states may be open to this approach to surrogacy.

The Pennsylvania case, In re Baby S., arose out of a gestational surrogacy agreement involving embryos created with donor eggs and husband sperm. The written agreement was indisputably clear that that the intended parents would be the legal rearing parents, their names would appear on the birth certificate, and the carrier would have no rearing rights or duties.  Unlike previous cases questioning the validity of a surrogacy contract, the challenge here came not from the carrier who now wished to assert rearing rights (see In re Baby M and Calvert v. Johnson) but from the wife (the intended rearing mother).  She had praised the carrier’s willingness to help her have a child, which she repeated both at the embryo transfer and at a 20 week ultrasound at 20 weeks of pregnancy, which both intended parents attended.  A month later she informed the parties that “irreconcilable marital difficulties” would make it difficult for her to co-parent the child with the intended father.  She also refused to complete the paperwork for her name to appear on the birth certificate as the mother.

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Is a Sperm Donor Ever a Dad? Time-Honored Answer in Jeopardy in California

Should a man who donates his sperm to a woman so that she can have a child through medically assisted reproduction later be able to claim parental rights to any resulting child? Would your answer change if the man and woman had an on-again off-again romantic relationship in which they tried for years to conceive “the old-fashion way” before turning to assisted reproductive technologies (ART)? How about if the couple briefly reconciled after the child was born during which time the man grew increasingly attached to his biological son? These are the questions now wending their way through the California judicial and legislative systems.

In case these facts aren’t intriguing enough, the controversy involves a third-generation Hollywood actor, Jason Patric (son of playwright/actor Jason Miller, grandson of comedian Jackie Gleason) and his long-time girlfriend Danielle Schreiber. If tabloids be believed, the pair dated for a decade before splitting in 2009. Sympathetic to his ex’s desire to become a mother, Patric allegedly agreed to donate his sperm on the condition that the provenance of her child remain a secret. Schreiber adhered to that promise after her son was born in late 2009, but sightings of the couple with the young boy two years later started the rumor mill churning. Patric’s biologic parenthood was confirmed in 2012 when he petitioned a Los Angeles family court for parental rights.

The California Family Code is replete with language addressing the rights (and lack thereof) of prospective fathers to seek adjudication of their legal paternity under various circumstances. Two sections are particularly apt to the Patric matter.  Family Code Section 7613(b) provides that “the donor of semen provided to a licensed physician…for use in artificial insemination or in vitro fertilization of a woman other than the donor’s wife is treated in law as if he were not the natural father of a child thereby conceived, unless otherwise agreed to in a writing signed by the donor and the woman prior to the conception of the child.” Assuming the absence of a written agreement, it would appear that Patric has no claim so long as the law regards him as a donor under the statute. Importantly and regrettably, the statute does not define the term “donor.”  Continue reading

Caplan on “$10,000 to Abort?”

Art Caplan has a new column up discussing the surrogacy agreement gone awry (noted by Judy Daar below) in which a surrogate was offered $10K to abort the fetus upon discovery of abnormalities.  Take a look.

We’ve also had other discussions of this issue at Bill of Health, from Dov Fox’s recent post on abortion of disabled fetuses to Glenn Cohen’s post on Mitt Romney’s son’s abortion contract.

Five Signs Your Surrogacy Arrangement Has Gone Awry

By Judith Daar

A recent news item about a gestational carrier who refused a $10,000 bribe from the intended parents to abort a fetus with severe abnormalities has stirred debate about the allocation of fundamental rights when reproduction is shared among multiple parties.  Though surrogacy and abortion are rarely aligned, the pregnancy-inducing act of hiring a woman to carry a child to term collided with the pregnancy-ending medical procedure in Crystal Kelley, a single unemployed mother of two who agreed to accept $22,000 to help another couple struggling with infertility.  All was well until an ultrasound at five months gestation revealed a fetus with severe medical problems.

Until that moment, as is true in the vast majority of surrogate parenting arrangements, all had gone smoothly between the intended parents – a married couple with three existing children – and the surrogate.  But the medical revelations tore the parties apart. The couple asked Kelley to abort the fetus immediately, urgency flaring as the pregnancy bumped up against the legal limit for lawful termination in Connecticut where the parties resided.  Kelley refused, saying she wanted to give the baby a fighting chance. Desperate, perhaps, the intended parents offered the surrogate a bribe to abort the fetus. She declined and soon thereafter a legal team was put in place, with both sides lawyering up.

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Three’s a Crowd: Governor Brown Vetoes Recognition of More than Two Legal Parents

by Judith Daar

Many thanks to Glenn Cohen for steering us into a space that often occupies our minds, but rarely our words – popular culture.  Glenn’s recent post critiques NBC’s new please-see TV offering, The New Normal, a comedy featuring the hijinks of two guys and a gal locked in a gestational surrogacy arrangement.   The guys – two fabulous and chic LA-centric gay men – employ an affable and blond recovering Midwesterner to gestate their egg donor-conceived embryo. Stereotyping reaches a new low with the addition of the surrogate’s own Ohioan grandmother whose disapproval of all things nontraditional is doled out through a slew of politically incorrect one-liners. Glenn’s observations that the show should be congratulated for finally handling this plot as a central theme, but chided for the lost opportunities to flag the frailties, inequalities, complexities and hierarchies of surrogacy are well-taken.

We can imagine the show truly going off the rails at the end of the first season (if it makes it this far – sometime the dialogue is so contrived it can set your teeth on edge) when the surrogate delivers and decides to “keep” the baby.  Season 2 would feature the happy threesome merrily caring for their shared cherub, quarreling only over who gets the pleasure of the next diaper change.  In truth, disputes between surrogates and intended parents (IPs) are rare but when they occur they are vitriolic and painful.

For example, there was no fairy-tale ending for a married gay couple in New Jersey when their gestational carrier – the sister of the nonbiologic father – filed a petition to gain parental rights and custody over the twin girls she has contracted to deliver for her brother and his husband.  After five years of litigation, a Superior Court judge declared the biologic
father the twins’ sole legal custodian, but awarded “parenting time” to the surrogate, a genetic stranger to the girls.  Cases like this, in which the IP is thrown over for the genetic and biologic parent in pro forma fashion, may inspire support for legal recognition of more than two legal parents.  That is, if a court is going to (mistakenly) recognize a surrogate as a legal parent, it should also award parental status to the nongenetic but intended parent. Such a proposal was considered in the just-ended California legislative session.

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