D.C. Enacts Surrogacy Legislation Replacing Former Prohibition on Compensated Surrogacy

Effective April 7, 2017, the District of Columbia has a new surrogacy law, replacing its 20-year-old law which prohibited and criminalized compensated surrogacy. The law, D.C. L21-0255, was the culmination of the work of many advocates, including D.C. attorneys from the American Academy of Assisted Reproductive Attorneys (AAARTA). 

The new law sets out certain requirements for surrogacy participants, including a prior legal agreement, separate counsel for the agreement phase, medical and mental health evaluations and approvals of the surrogate (but not the intended parents), and a joint mental health meeting for all participants. The law allows both gestational and traditional (genetic) surrogacy, however the latter does not permit a pre-birth order to issue but only a parentage order at least 48 hours after birth and with a right to withdraw consent prior to that time, although the impact of such a withdrawal is not completely clear. The law does not require an intended parent be legally married or have a genetic connection to the resulting child. D.C. jurisdiction to issue a parentage order over a surrogacy arrangement is applicable if the intended parents are legal residents or have “actually resided” in the District for the year preceding the filing, or the child is born in the District.

While the new law is clearly a drastic change from the former prohibition and criminalization of all compensated surrogacy, how all the provisions of D.C.’s new law will be fully applied and interpreted is yet to be seen. A copy of the full law may be accessed at the link below. The language of the final law can be found under the “Bill History” tab.

Language Matters: MN Court Parses Multiple Meanings of “Transfer” in Embryo Disposition Forms

In yet another example of the importance of careful drafting and accurate language, a divorcing couple’s dispute over their two frozen embryos turned on the court’s interpretation of the word “transfer.” The former couple had been patients of the Mayo Clinic. The ex-wife sought to have the court award the embryos to her so she could destroy them while her ex-husband wanted them awarded to him to continue to store indefinitely at his expense. The outcome turned on the court’s interpretation of the dispositional choice the couple checked on the Clinic’s “Consent Regarding IVF Services.”

The lower court ruled that the form was a “binding contract,” and that the couple’s having checked off the box under “divorce/separation” which read “continue to store for transfer to female partner,” meant the wife should be awarded the embryos. The ex-husband appealed, and the higher court reversed. The case has now been sent back to the lower court to decide on the disposition of the embryos in light of the Appellate Court’s ruling.

The Appeals Court focused on the language and meaning of the term “transfer” and concluded that it referred to “placing the embryos in the female partner in an attempt to produce a pregnancy,” not ---as it found the lower court had thought, “an assignment or conveyance of the embryos for purposes of changing their custodian or keeper.” In an entire section of the court’s opinion titled, “Construction of the consent form,” the court reviewed the clinic forms and noted that there were several provisions using the term “transfer” that supported its ruling: the form referred to the ideal number of embryos to transfer and cryopreserving remaining embryos for a future potential thaw and transfer, which the court noted unambiguously referred to using the embryos to “attempt to produce a pregnancy,” as well as provisions that a “fresh transfer” occurs at the cleavage stage and under a reference to assisted hatching after “multiple prior failed embryo transfers”, all of which were consistent with the “produce-a-pregnancy sense of ‘transfer’”.  The court noted a different use of the term “transfer” where the form gave patients the “option of transferring your embryos from Mayo Clinic.”

The court bolstered its finding by noting that the form’s section the ex-wife tried to rely on had no parallel section to transfer the embryos to the husband, nor any corollary in the section limiting storage for 10 years, which would make no sense if her interpretation was correct.

In an interesting second section of the opinion, the court noted it was unclear whether the lower court used a contractual analysis because it thought “a contractual analysis is a considered choice, or simply an assumption that the contractual analysis is a proper vehicle for addressing disposition of the embryos.” As noted in a myriad of other embryo disposition cases reviewed in Legally Speaking and other venues, various courts have used different approaches to resolving embryo disputes, including analysis under contract, informed consent, and public policy principles, and whether changes of mind were allowed or contemporaneous re-consent was necessary. In sending the case back to the lower court, the Appeals Court noted it expressed no opinion on “the propriety of using a contractual (or any other) analysis for addressing the disposition of the cryopreserved embryos” and that the lower court should choose and explain its analysis. 

Rucker v. Rucker, MN Ct. Apps., 12/27/16

Singapore Sperm Mix-Up Results in Damages for Newly-Identified Loss of “Genetic Affinity”

In March, the Supreme Court of Singapore awarded a couple damages under a novel theory, after rejecting standard contract and tort theories, when their IVF program, the Thomson Medical Centre, accidentally used sperm from an anonymous sperm donor instead of the woman’s husband. The couple, who already had one child by IVF, discovered the error through a DNA test they sought after their daughter’s birth when she did not look like them and had different hair color and skin tone. The couple sued for damages, including reimbursement for raising the child to age 21. The court upheld a lower court’s finding that the couple should not recover under contract or tort theories, or be awarded damages for the full cost of rearing the child to age 21 as hindering concepts of parenthood and the public interest, but identified a new claim for “subversion” of their interest in “genetic affinity” with their children.

The error, which the court noted was due to embryology error in not discarding disposable pipettes, resulted in embryos created with donor sperm. The couple’s suit was brought against the hospital corporation that owned the IVF program and its fertility clinic, as well as two embryologists who worked at the fertility clinic.

The court notes, “[i]n our judgment, the Appellant’s interest in maintaining the integrity of her reproductive plans in this very specific sense – where she has made a conscious decision to have a child with her Husband to maintain an intergenerational genetic link and is one which the law should recognize and protect. And given that interests are the “positive aspects of damage” (see J A Weir, “Liability for Syntax” [1963] CLJ 216 at 218), we hold that the damage to the Appellant’s interest in “affinity” is a cognizable injury that should sound in damages.”

Similar to many U.S. courts that reject “wrongful birth” claims, the court rejected such a claim on the grounds that it would send a damaging message to the child--that she was a mistake and not valued for herself. Nonetheless, the court recognized the couple had suffered harm, and that an award of damages was appropriate, and so recognized a novel category of a right to, and in this case loss of, “genetic affinity.” The court was careful to point out that no amount of damages should be in any way interpreted as a commentary on the worth of any child, but that damages limited to the couple’s “pain and suffering” would be inadequate. Ultimately, the court awarded the couple the equivalent of 30% of the cost of bringing up their child.

One published article reporting on the case suggests it raises a question of whether there’s a definable value in “genetic affinity,” noting that the court cited a 1999 U.S. law review piece which argued, “parents have an interest in having children with whom they share symbolically identifying traits.” That article (link below), suggests such a theory could potentially extend to arguing for a right to mitochondrial replacement or other genetic manipulation to allow parents to create a genetically-related child. There have also been several cases in the U.S. and elsewhere recognizing liability and damages for gamete or embryo mix-ups under established legal theories, including breach of contract or tort theories, and regardless of whether the mix-up resulted in a genetically unrelated child or an error in using the patients’ selected donors, so it is not clear that the court’s finding as to “genetic affinity” was as central to its ruling as some commentators suggest.

ABC and Thomson Medical Pte, Ltd, Thomson Fertility Center Pte LTD, Eleanor Quah, and Chi Choy May, Nos. 17 of 2015, 467 of 2012 (Ct.of Apps.Rep. of Singapore)

A column highlighting recent court decisions affecting the assisted reproductive technologies and the families they create, written by Susan L. Crockin, J.D. and guest authors who offer unique perspectives and expertise on significant legal topics.  

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