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Legally Speaking Sept. 2017

Legally Speaking is a guest authored column. The specific content of each column is written by the author as he/she understands the facts--scientific, medical, legal or otherwise--as they relate to the information presented, and in no way reflects ASRM's understanding, opinion or presentation of these facts.

Human Embryo #4B-A v. Vergara: Louisiana Federal Court sides with Vergara

A federal district court in Louisiana has dismissed a lawsuit filed against Sofia Vergara in that state over two frozen embryos she and her former fiancée had created and stored in a California clinic.  Her former fiancée, Nick Loeb, had attempted to file suit in Louisiana state court on behalf of the two embryos after his California action was dismissed. The novel lawsuit was brought in the only state in the U.S. that recognizes embryos as “juridical persons.” As the court noted, “Louisiana has the most favorable state laws regarding the rights pertaining to IVF created embryos, which make them juridical people that have the right to sue and be sued and cannot be intentionally destroyed. See La. Rev. Stat. § 9:121, et seq. 

The Louisiana lawsuit was brought on behalf of the two embryos (named “Emma” and “Isabella” by Loeb) after a trust was created in that state for their benefit, arguing that the embryos needed to be brought to life to obtain the trust benefits.  Vergara’s attorneys first successfully moved to have the state case transferred to federal court under a “diversity jurisdiction” argument, and then moved to dismiss the action altogether, claiming a Louisiana court had neither “personal jurisdiction” over her nor “subject matter jurisdiction” over IVF embryos created and stored in California. Not unexpectedly, the court looked for--- and found--- a way to avoid the more difficult question of subject matter jurisdiction which would have necessitated it characterizing the “pre-embryos.” It sidestepped that question, by ruling there was no personal jurisdiction over Vergara, a citizen of California who it found had only minimal, transient contacts with the state of Louisiana, such as a short term stay while filming a movie there. Without personal jurisdiction, a necessary pre-requisite to maintaining any lawsuit, the court dismissed the case.

The court noted that the former couple had undergone IVF in California, invoked California laws, signed California contracts, and that “any meaningful planning” of their IVF and the granting of the “right to parenthood” in connection with their IVF and surrogacy arrangements had occurred in California. The clinic’s “Directive for Partners Regarding the Storage and Disposition of CryoPreserved Materials Which May Include Embryo,” required both parties to consent to any embryo transfers. Vergara maintains she is not seeking to destroy the embryos but to store them indefinitely.

Despite his initial claims in the California case that all relevant contacts, acts, documents, and IVF procedures occurred in California, Loeb attempted to assert multiple legal claims under Louisiana law and to rescind the signed IVF documents alleging they were unenforceable and violated Louisiana public policy by treating the pre-embryos as property “instead of people.”  He also claimed fraud, misrepresentation and duress, and that the “Form Directive” failed to meet California legal requirements. He sought to terminate any rights Vergara had to the embryos and have her declared an egg donor under California law, as well as have himself appointed as the “curator” of the pre-embryos.

After ruling that dismissing the Louisiana case due to lack of personal jurisdiction over Vergara was “straightforward,” the court contrasted the subject matter jurisdiction issue it did not want to resolve:

“…the subject matter jurisdiction inquiry poses difficult and novel questions. … [and] would require an analysis of the citizenship of pre-embryos. [The LA statute] provides that an IVF human ovam [sic] is a juridical person that has the right to sue and be sued. Plaintiffs argue that the pre-embryos are citizens of California, because they were created and are stored in California, and their mother, Vergara, is a citizen of California. Vergara argues that pre-embryos are not people and consequently, do not acquire citizenship until they are born. The diversity subject matter jurisdiction analysis in this case also would require assessing the value of the pre-embryos' lives to determine the amount in controversy. The … analysis raises constitutional questions concerning procreation rights, and whether federal law preempts the Louisiana laws conferring rights on IVF created embryos. See La. Rev. Stat. § 9:121, et seq. There is also a question of whether the Louisiana laws regarding IVF created embryos apply to pre-embryos that were not created, and are not stored, in Louisiana.”

Whether this latest ruling will end the litigation, or whether Loeb will appeal or seek other venues to continue his efforts to claim the former couple’s embryos, remains to be seen.

Human Embryo #4 HB-A v. Vergara, 2017 U.S. Dist. LEXIS 136782 (E.D.LA, 8/25/17)

SCOTUS Reaffirms Birth Certificate Ruling for Children of Same-Sex Couples

As same-sex couples continue to build families through gamete donation, surrogacy, and adoption, states have had to confront the issuance of birth certificates for their children.  After a number of states initially refused to issue birth certificates listing both spouses as legal parents, most states have come to accept parentage as one of the Constitutional rights flowing from the Supreme Court’s 2015 same-sex marriage decision, Obergefell v. Hodges, 576 U.S. ___ (2015). As such, they now issue birth certificates to both same, as well as different sex couples, regardless of their use of donor gametes. Arkansas, however, continued to maintain after Obergefell that while it recognized same-sex marriage, it was not constitutionally required to issue birth certificates listing a non-biological partner of a same-sex couple as the legal parent of the child born to her spouse.

In 2015, two married lesbian couples successfully challenged the State of Arkansas, after it had refused to list the non-biological mother on a birth certificate where the couple had used an anonymous sperm donor.  The state argued its refusal was consistent with its statute, which explicitly required putting the mother and her “husband” on the birth certificate. The state countered discrimination arguments on the basis that to “acknowledge basic biological truths” was not a violation of Constitutional Equal Protection principles.

In a “per curium” (unsigned) opinion the U.S. Supreme Court issued a summary reversal of the Arkansas court’s ruling, with three justices (Alito, Thomas and newly- seated Gorsuch) dissenting. The Supreme Court noted that a birth certificate is a document often used for important transactions such as medical decisions or school enrollment, and, quoting from Obergefell, ruled that Arkansas had denied married same-sex couples access to the “constellation of benefits that the Stat[e] ha[s] linked to marriage.”

With this ruling, Arkansas should now be coming into line with most states on this issue. The Supreme Court’s ruling may also impact a similar challenge currently pending on behalf of same-sex couples in Tennessee, and being followed by this column. 

Pavan. v. Smith, 582 U.S. (2017) (6/26/17)

UK Court Rules Biological Mother of Child Born to Gestational Surrogate Cannot be Legally Recognized Due to Divorce from Biological Father

Highlighting a limitation and criticism of UK surrogacy law, a biological mother whose marriage dissolved during a surrogacy arrangement has been denied legal recognition as the child’s mother. The surrogate, a family friend of the mother’s, has made no claim to the child, relinquished the child to the mother at birth, and supports her efforts. The biological father, now divorced from the mother, no longer wants to be involved in the child’s life and has never seen the child. Under the Human Fertilisation and Embryology Act 2008 (HFEA), UK law does not permit granting applications for a parental order by a single person. Section 54 of that law requires that a parental application following a surrogacy arrangement can only be made by a married couple, civil partners, or “persons who are living as partners in an enduring family relationship.” Ironically, as the court noted, with the biological parents’ divorce depriving the biological mother of legal recognition, the biological father is the child’s only legally recognized parent.

The court acknowledged that, “the transformative legal effect of a parental order cannot be overstated,” with “the most profound personal, emotional, psychological, social and, it may be in some cases, cultural and religious, consequences… [citations omitted],” but that precedent made it clear a change in the law was necessary and beyond its control.  As such, it was required to reject the application under existing law.  The mother is hoping for a change in the law while her application is pending, and a bill is reportedly being proposed shortly in Parliament which would remove the ban on single parent applications. Without the ability to issue a parental order, the most the court could do under its inherent powers was to extend a “wardship order” under which the biological mother will continue to care for the child.

The case will be followed for future developments.

M and F SM and A by his Guardian, B4 6DS, Case No. LE17P00251, High Court of Justice, Family


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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