Surrogacy Disaster in the News

Not surprisingly, I have received numerous phone and email messages from clients in reaction to the recent CNN story about a gestational surrogate who refused to get an abortion when requested to by the baby's intended parents and instead delivered a severely disabled infant that she subsequently surrendered for adoption.  Even just a quick internet browser search makes clear how controversial this story is: headlines range from "Surrogate Saves Disabled Baby Biological Parents Wanted Aborted" to "Surrogate Offered $10,000 to Abort Baby."  (For the most thoughtful discussion I've seen, go to "Surrogate Mother: A New Wrinkle in the Abortion Debate," a CNN round-up of internet commentary spanning many perspectives.)

Before addressing the legal and moral complexities of this particular situation, I must first comment on how extraordinarily rare these types of surrogacy disasters are.  I have been practicing assisted reproduction law for almost 20 years and have never had a situation in my practice that has come even close to being this messy; nor have any of my colleagues in the Academy of California Family Formation Lawyers run into this big a breakdown of the surrogacy process.  Thankfully, embryology has advanced to a point where the physicians engaging in IVF can detect many fetal anomalies prior to implanting an embryo in a womb, so heartache like this often can be avoided.  And when abortion or selective reduction decisions need to be made in the context of surrogacy arrangements, my experience is that the intended parents and the surrogates usually are able to cooperate and support each other through whatever difficult decisions face them.  As I told one set of worried clients, who emailed me after news of this current mess broke, the good news is that these situations are so rare that you hear about them on CNN.

That said, it is important to understand the legal landscape for making abortion decisions in the context of surrogacy.

In states where surrogacy is legal -- and even in states where surrogacy contracts are enforceable -- there is a limit to what aspects of a contract will be "specifically enforced."  A bit of Contract Law 101: even where a contract is enforceable, the type of enforcement varies.  Some things are appropriate for "specific enforcement" -- which means that you can hold the people involved to actually following through on their contractual obligations -- and other things are not.  The example most commonly given in law schools for the types of contracts that generally are NOT specifically enforceable are contracts for specialized services; my first year contracts teacher taught us that even if you have an enforceable contract with an opera company to put on Aida, if the lead diva refuses to perform you simply can't make her sing.  This does not mean that you don't have an enforceable contract, nor does it mean that you have no way to enforce the contract -- but your method of enforcement is limited to seeking monetary damages for the breach (for example, compensation for lost ticket sales and for rental of the performance hall, as well as for damage to professional reputation, etc) -- you cannot stand the diva up in front of the crowd and make her perform if she chooses not to.

It is unclear to many of us practicing assisted reproduction law in states like California -- where gestational surrogacy is legal and gestational surrogacy contracts are enforceable -- exactly which parts of our surrogacy contracts are subject to specific enforcement and which are not.  Our statutes and case law make clear that the parts of the contracts that specify who the parents are ARE specifically enforceable -- a surrogate who has entered into an enforceable Gestational Surrogacy Agreement cannot keep the baby, nor can the intended parents choose to walk away.  But the parts of surrogacy contracts that address medical care for the surrogate -- what tests she will undergo while the baby is in utero, and certainly whether or not she will abort if there is a fetal anomaly -- are far less likely to be subject to specific enforcement.  To put it bluntly, no woman is going to be forced to get an abortion against her will -- not in Connecticut, not in Michigan, and not in California.  (For a more legal discussion of this topic, see my article "Surrogacy and a Pregnant Woman's Constitutional Right to Medical and Procreative Choice," presented at an ABA meeting on assisted reproduction law in October, 2011.)  Instead, if there is a breach that leads to financial damage to the non-breaching party, that party is likely going to be able to sue for monetary damages -- but nothing more.

This is the reason that it is so critically important that (a) parties entering into surrogacy arrangements take the time to do diligence prior to an embryo being implanted, to make sure that the surrogate and the intended parents are 100% on the same page about the circumstances under which they will or will not abort a baby, and whose choice it will be; and (b) surrogacy contracts include Alternative Dispute Resolution provisions that force the parties to engage in meaningful mediation or other therapeutic interventions in a sincere attempt to resolve conflicts before they end up on CNN. 

Situations like the one involving Baby S, as the infant is being called, are heartbreaking.  We all do our best to avoid them.  And when they happen, we need to provide thoughtful support to all involved and learn everything we can about how they came to pass, so we can try to prevent more of them from happening in the future.

What Happens to Left-Over Embryos?

Yet another court -- this time in Maryland -- has been called upon to decide what should become of frozen embryos remaining after the divorce of the couple who made them.

Typically, these cases look like this:  a husband and wife experiencing fertility issues have created embryos through an in vitro fertilization procedure.  The embryos are cryopreserved and stored for future use.  Then the couple splits up.  One of them wants to go forward with using the embryos to conceive a child; the other wants the embryos destroyed.

Often, use of the embryos is the final opportunity for the infertile husband or wife to have a child that is biologically related to him or her.  Since the embryos were made, the wife may have become too old to produce viable eggs; or either husband or wife may have had their fertility destroyed by chemotherapy or other medical procedures.  If the embryos are destroyed, a potential father or mother will forever lose her/his chance to become a parent to his/her own biological child. 

And yet....

If the couple created the embryos together, as husband and wife, and if one of the spouses (usually the wife) goes forward with conceiving a child by use of those embryos, won't the husband be the father of that child?  Is it fair to ask a man who is now divorced from his former wife to be the father of a child she conceives after the marriage and against his will?  Is he liable for child support?  Should he be?

These cases raise daunting issues both legally and ethically.  As attorneys, it is hard to know how to advise our clients.  So, as with all such issues, I ask: how could these cases best be avoided?

Fertility clinics owe it to their patients to do a much better job on medical consent forms for assisted reproduction procedures.  Typically, these forms are prepared by medical malpractice attorneys who have little or no knowledge of family law, for the purpose of protecting the clinic from future malpractice claims.  Couples would be well advised to consult knowledgeable assisted reproduction attorneys before signing these forms, to make sure they fully understand the consequences of the choices they're making about future disposition of their genetic material.  The costs of these legal consultations are nothing in comparison to the costs -- both emotionally and financially -- of litigation like that currently going on in Maryland.

Why the Kansas Sperm Donor Case Isn't News

I have been astonished, over the past week, to see the case where a Kansas sperm donor is being held responsible for financially supporting the child conceived with his sperm all over the news.  Stories about this case have run everywhere from the Wall Street Journal to the Huffington Post to tabloids.

Predictably, I have started receiving alarmed calls and emails from clients who are involved in sperm donation arrangements, wondering if they should be worried.  For the most part, the answer is a resounding NO.  Here's why:

(1) Kansas law on sperm donation is almost identical to California law on sperm donation.  It makes clear that a man who provides his sperm to a physician for purposes of inseminating any woman other than the man's wife is legally a sperm donor and not a father.  Anyone who wants to be a sperm donor, and therefore to be safe from liability for child support, just has to follow this law.  In California that means doing the sperm donation through any licensed physician or sperm bank -- of which there are many.  Had the folks in Kansas used a doctor to assist with the insemination, this case would never have happened.  Anyone who has seen an assisted reproduction attorney for advice prior to inseminating should know this.  And finding an assisted reproduction attorney in most states is easy: just go to the website for the American Academy of Assisted Reproductive Technology Attorneys (AAARTA) and there is a state-by-state listing.

(2) Most states have a preference that a child have two legal parents -- to provide care and support for the child -- but in many states, they don't care who the two parents are.  Had the folks in the Kansas case lived in California (or in about 20 other states throughout the country), even though they did not use a physician to assist them with the insemination, they could have completed a 2nd parent adoption after the baby was born in which the second mom became a legal parent and the donor's rights were terminated.  Sadly, because Kansas does not currently provide a way for two women both to be recognized as parents of the same child, this option wasn't available to the parties now involved in this high-profile mess.

And by the way, this has nothing to do with marriage equality.  I have seen a number of articles reporting that the second mother in this case isn't legally responsible for the child because of Kansas's constitutional amendment providing that only different-sex couples can marry.  This is mixing apples and oranges -- the two women could both be recognized as parents without being married, just like kids can have a mother and a father regardless of whether mom and dad are married.  Kansas needs to find a way to allow children being raised by same-sex couples to have two legal parents of the same sex -- typically through 2nd parent adoption -- whether or not it wants to allow same-sex couples to wed.

One more point: it is the responsibility of Departments of Child Support Services throughout the country -- in fact, it is their mandate -- to find parents to hold financially responsible for children wherever possible, rather than having those children's care fall on the taxpayers.  The Kansas Department of Child Support Services is simply doing their job.  As far as I can tell, they are not the "bad guys" here.

The problems highlighted by the Kansas case have simple solutions:  (1) people becoming parents through assisted reproduction need to understand the laws of the states in which they live -- and then follow them; and (2) states need to make it simpler for people parenting children -- including same-sex couples -- to take legal responsibility for those children.  With those two changes, cases like this would never again need to happen.

What a Difference A Decade Makes!

I will always remember the 2004 presidential election.  That was the year that voters chose to send George W. Bush back to the White House instead of electing John Kerry.  As part of that same election, 13 states voted to amend their constitutions to clarify that same-sex couples could not marry -- a gratuitous act of meanness, from my perspective, given that same-sex couples already were not allowed to marry in any of those states.  The issue of marriage equality was seen as a pivotal campaign issue, which galvanized conservative voters to turn out to vote, and helped Bush win a second term.  Lesbian and gay couples who had fought for the right to marry were held somewhat responsible for Kerry's defeat.

For the past 8 years, every election cycle issues surrounding the rights of lesbian and gay couples and families have been hauled out, dusted off, and used for political purposes by one party or the other -- and often by both.  Should same-sex couples be allowed to marry?  Should same-sex couples be allowed to provide foster homes for, or adopt, children?  These issues have been used as political fodder far too many times, in far too many elections, and for all the wrong reasons.

I woke up this morning to find that the voters of two -- and maybe three -- states (Maryland, Maine, and maybe Washington) had passed ballot initiatives in favor of full marriage equality for their lesbian and gay citizens.  Another state -- Minnesota -- defeated a constitutional amendment that would have prevented marriage rights from being extended to same-sex couples.  And a President who has openly stated his belief that same-sex couples should be allowed to wed was reelected by a considerable margin.

It is a complicated moment in our country's history.  There are very serious challenges ahead -- economically, politically, environmentally.  It wouldn't have been easy for Romney to preside over the next four years, and it certainly won't be easy for Obama.  But here is my hope, coming out of the 2012 election: that politicians around the country have just learned that demonizing lesbians and gay men, and our families, no longer helps win elections.  If we have evolved to that point, that, in and of itself, is cause for celebration.

New California Assisted Reproduction Bills Signed Into Law!

In the past week, Governor Brown has signed two separate assisted reproduction bills into law.  The first, AB 1217, addresses surrogacy arrangements; and the second, AB 2356, addresses testing requirements for sperm donation.

AB 1217 provides guidance, for the first time in California history, on what information needs to be included in the written agreement governing a gestational surrogacy arrangement.  It is pretty straightforward, but does include a few things that may not be standard to all surrogacy facilitation programs and attorneys.  For example, the bill provides that the signatures of all parties to the surrogacy agreement must be notarized.  In addition, it provides that the surrogate is not to start on cycle medications until the agreement has been fully executed.

Useful to ART attorneys as well as the families we serve, the bill sets out some specific rules for surrogacy parentage actions.  Under this new law, a surrogacy action can be filed pre-birth and can be filed in the county where the child is expected to be born, in the county where the surrogate lives, in the county where the intended parents live, in the county where the surrogacy agreement was executed, or in the county where the surrogacy medical procedures are to be performed.  It will be great to have all these options, as some counties are far more efficient than others in processing these uncontested court cases! 

Most importantly, from my perspective, the bill clarifies that a surrogate and the intended parent or parents "shall be represented by separate independent licensed attorneys of their own choosing."  I have long taken issue with some surrogacy facilitators who either take the position that surrogates do not need to have their own attorneys, or who require the parties to work with attorneys of the facilitator's choosing (as opposed to of the parties' choosing).  It is wonderful for agencies to provide surrogates and intended parents with the names of qualified counsel, but ultimately every client has a right to choose their own attorney under State Bar rules.  It will be useful to have this in print, as actual law.

While leaving much of the details to attorneys, agencies and clinics -- as well as to the women and men actually engaging in surrogacy -- this bill helps set some basic ground rules for surrogacy endeavors in California, and as such should be quite helpful.

The second bill, AB 2356, addresses an inequity in sperm donor testing requirements.  The Food & Drug Administration (FDA) currently requires that sperm donors undergo rigorous testing, which must be completed within 7 days of any proposed sperm donation.  However, there is an exception to this rule if the sperm donor is a "sexually intimate partner" of the recipient -- in which case, the testing requirements are far less rigorous, and therefore also far less expensive.  The phrase "sexually intimate partner" is not defined anywhere in the FDA regulations.

The presumed (and clearly legitimate) purpose of the FDA's testing requirements is to assure that medical facilities are not exposing women to a donor's sperm unless there is assurance that either (a) the sperm is disease free, and/or (b) the woman has already voluntarily exposed herself to the sperm in a non-medical setting, in which case medical insemination will pose no additional risk to her health.  However, the "sexually intimate partner" language was being interpreted by most medical providers to mean that the woman and the donor needed to have actually had sex before the more stringent testing requirements could be waived -- which, frankly, does not seem like any of the FDA's business.  So California has now statutorily defined the phrase "sexually intimate partner" to refer to "a donor to whose sperm the recipient has previously been exposed in a nonmedical setting in an attempt to conceive."  This definition will allow single women and lesbian couples who are attempting pregnancy with the help of known sperm donors to access fertility assistance as necessary without incurring the major expense of having their donors retested every cycle, as long as the women have tried to conceive at home at least once (thereby "exposing themselves to the donor's sperm in a nonmedical setting in an attempt to conceive").

It wasn't many years ago that there was absolutely no guidance available in the California Family Code on issues of assisted reproduction.  Both of these new bills should help clarify issues of concern to people involved in assisted reproduction; and both bills also once again put California in the forefront of national efforts to make sure that assisted reproduction is handled both safely and ethically.

Lost At Sea

I have been very troubled by recent articles about a Bay Area father (Christopher Maffei) who absconded with his two young children ages 2 and 3, stole a yacht, and set out to sea.  He was out on the ocean solo with his kids for several days before finally surrendering to the FBI and Coast Guard, and while interviews with him suggest that he took appropriate supplies with him and took precautions to keep his kids safe, this behavior undoubtedly put his kids in harm's way.

That said, I have been sorry that so little attention has been paid to the question: "what caused this man -- by all accounts a generally sane and loving father -- to do something so extreme?!"

As one of the few attorneys in the Bay Area who regularly litigates parentage cases, I have had the opportunity to spend time with quite a few devoted parents who have been faced with the possibility of losing a child because the child's other parent has decided they should no longer have contact.  These are horrible cases, and the stakes are as high as any I faced when I was in the Alameda County Public Defender's Office.  It is hard to think of anything more awful than the prospect of losing one's child.  Sadly, many parents react to this threat in ways that ultimately jeopardize their relationships with their children -- as did Mr. Maffei.

The children's mother admitted to the media that she has been sharing custody with Mr. Maffei, and that the kids love him, but that she had recently told him he couldn't see his kids any more until he got an apartment and a job.  She had then stopped anwering his phone calls.  She asks: "Who in their right mind would go out alone on a boat with two toddlers?'"  (To read the full article, go to: http://www.sfgate.com/crime/article/Kids-recovered-after-abduction-police-say-3847831.php#ixzz26fn6GEM0.)

Who, indeed.  Just maybe a man who loves his children, who has been told he can't see them again and who KNOWS that using them as leverage to try to get him to behave differently is wrong.  Who KNOWS that his children, ages 2 and 3, will not know where he is and will think he has abandoned them.  Who KNOWS that a good parent does not work out issues with his or her co-parent by withholding contact with the kids.

I AM NOT defending Mr. Maffei.  He absolutely should NEVER have taken his kids, stolen a boat, and set off to sea.  That was, indeed, irresponsible and crazy.  But I submit that Ms. Hipon also should NEVER have cut off visitation between a loving father and his children as a way of making a point about money or lifestyle.  That, too, was irresponsible, and I fear that in the long run the kids will be the ones who suffer the consequences.

(For Mr. Maffei's comments on why he did what he did, see: http://www.sfgate.com/default/article/Calif-father-accused-of-taking-2-kids-speaks-out-3860015.php.)

I'm Back!

It's been WAY too long since I've posted -- another very busy and eventful year, both professionally and personally.  I won't bore any of you with details.  In fact, I think I'll take some advice from San Francisco Giants ace relief pitcher Sergio Romo. 

In yesterday's San Francisco Chronicle, Romo was asked his feelings about new Dodger Hanley Ramirez having hit home runs off him the last two times they faced each other.  Sergio's response:

"If I keep thinking about it and keep bringing it back, that means I believe it actually happened," he said. "In my head, it didn't happen. I forgot about it. That's pretty much the mind-set I've had."

So if I wrote about why I hadn't found time to blog for the past year, that would mean it actually happened.  Which it didn't....