Reproductive Medicine - Cases in the Courts
Nov 18, 2019
Author: Susan Crockin, J.D.
Origin: ASRM News November 2019
Connecticut Supreme Court Upholds Clinic and Couples’ Frozen Embryo Agreement
Connecticut has become the most recent state to scrutinize a divorced couple’s IVF dispositional storage agreement for their frozen embryos. It upheld, as have most final appellate state courts, the couple’s dispositional agreement to discard their embryos. The ex-husband had changed his mind and unsuccessfully attempted to persuade the court to allow him to use or donate the “pre-embryos,” as the court referred to them.
Instead, the court found that the agreement, entitled, “Consent for Cryopreservation and Storage of Embryos,” and the agreed upon choice to discard the pre-embryos, was clear. The agreement provided for options to be selected through checkboxes and acknowledged that the couple had discussed the agreement with their physician and could jointly modify the agreement.
The ex-husband argued that the agreement should nonetheless be unenforceable and the lower, trial court originally agreed with him. The lower court ruled that the agreement lacked “consideration” (an exchange of value) and that having options selected via “checkbox” made the agreement unenforceable. The Connecticut Supreme Court disagreed and reversed. In its opinion, it reviewed the almost 30 years of case law on the topic of embryo dispositions and the “leading approaches” courts have considered: contractual, balancing of interests, and contemporaneous mutual consent. The court found in favor of the contractual approach, as discussed in more detail below, and disagreed with the husband on his two legal points. It found the patients’ promises to contribute their genetic material and the clinic’s agreement to store the pre-embryos were both legally sufficient consideration, and the checkboxes did not necessarily indicate the choices were not seriously and sufficiently considered and selected.
As to the various judicial approaches across the country, the court found in favor of the contractual approach, noting this is the approach adopted by the majority of state courts that have considered this issue. The court outlined five basic reasons for its preference of a contract approach, citing numerous other courts’ language and its own IVF informed consent statute that explicitly requires that IVF doctors provide patients with dispositional choices and time to make their choices. Specifically, it found that adherence to the contract approach: 1) prioritizes the progenitors as the primary decision makers in a very personal decision; 2) relies on preexisting agreements that promote serious discussions in advance, while minimizing later misunderstandings and potential litigation; 3) is consistent with the state’s public policy reflected by its ART informed consent law; 4) is consistent with the majority of states that have faced the issue; and 5) is consistent with professional recommendations for advance directives, which “provide practical certainty for clinics, reduce the likelihood of abandonment, and ensure that facilities will be able to satisfy their ethical obligations.” For the latter point, the court explicitly cited ASRM’s Ethics Committee documents.
Significantly, the court concluded by spelling out two issues it was not deciding: 1) what it would do in the absence of an enforceable agreement (a number of courts have adopted a balancing test in those circumstances), and 2) if the contractual approach would apply, or if it would be against public policy--if the selected choice had been to use the embryos and enforcement would force one party to become a genetic parent “against his or her wishes.”
Balboa v. Goodwin, CT Supreme Court (Nov. 5, 2019)
INS Citizenship Challenges Continue for Foreign Born Children via Surrogacy
In September, another American same-sex couple sued the State Department for its policy of denying citizenship to foreign-born children via surrogacy and gamete donation. The Trump administration has interpreted the INS “out-of-wedlock” regulations to apply to the genetic make-up of a child and has scrutinized this issue more closely than have previous administrations, resulting in denials of citizenship when a gamete donor is used since the egg and sperm do not each come from the married intended parents. While this may not always be readily discernible for opposite-sex couples, its application, and now, impact on all same-sex couples, is obvious.
The most recent federal lawsuit was filed in Maryland by Roee and Adiel Kiviti, who, together with Immigration Equality and Lambda Legal, claim the State Department policy unconstitutionally denies citizenship to their child and those of other same-sex U.S. citizen couples. In July, a similar case was filed in federal court in Georgia on behalf of another same-sex couple, Derek and Jonathan Mize-Gregg, and their daughter Simone.
Lambda Legal, 9/12/19
Colorado Doctor Relinquishes License but Refuses to Acknowledge Impregnating Patients with his Sperm
An 80-year-old Colorado gynecologist, Paul Jones, is the most recently discovered physician to have secretly used his own sperm to artificially inseminate his patients. At least 12 biologically related offspring have been identified through direct-to-consumer testing, and lawsuits are pending against Jones. He surrendered his medical license in November.
Colorado does not have a specific law addressing unauthorized inseminations, and the lawsuit currently filed against Jones reportedly alleges medical negligence, lack of informed consent, fraud, and battery. Other families are reportedly considering or planning to file suit against Jones as well. Many of the donor conceived offspring were not aware that their parents had used what they thought was anonymous sperm.
One fallout from the lawsuit has been a Colorado state legislator proposing new explicit legislation that would make using one’s own sperm without permission illegal in that state, similar to laws enacted in California, Indiana, and Texas (Legally Speaking, Oct. 2019). The form the potential legislation would take has not been reported as yet.
Denver Post (11/1/19)
Former Medical Student Sues, Alleging Donated Sperm Misused for Excessive Number of Offspring in Nearby Areas
In October, Dr. Bryce Cleary sued Oregon Health & Science University, claiming sperm he donated in 1989 as a medical student was supposed to be used for research or only for families on the East Coast, and that he thought no more than five offspring were produced. Instead, he has at least 17 donor offspring--all in their 20s, most of whom were born in Oregon. Cleary, now 53 and married, is living and practicing medicine in the Portland area where he and his wife are raising four children. According to his filed complaint, he is seeking $5.25 million for claims that include fraud and emotional distress. Two donor offspring contacted him in 2018 after using Ancestry.com. Cleary then submitted his DNA and learned of 15 additional offspring, most in Oregon. The lawsuit also alleges OHSU and the hospital’s clinic encouraged medical students to donate sperm for a research program to be used for either research or fertility treatments.
OHSU has declined to comment, citing "patient privacy obligations and the confidentiality of protected health information." Cleary held a news conference, accompanied by Allison Allee, one of the donor offspring who met him at the news conference, and said he’d been told as a first-year medical student that once five babies were conceived on the East Coast, the rest of any donated sperm would be used for research. Instead, he says he has learned through Allee’s mother’s considering having another child, that his sperm was still available for procreative use in 2002. According to the Washington Post, Allee, who is herself pregnant with her third child, stated that “… the idea of my children having dozens and dozens of cousins that will be their ages, in the same area, is concerning.” The report also states Allee has not considered joining the lawsuit but wanted to be at the press conference to join Cleary in calling for stricter regulations for fertility clinics to ensure what she called being “a product of fraud” could not happen again.
It is unclear from published reports to date how or where any alleged promises were made to donors to limit the number of offspring or geographic location of intended parents. The complaint also alleges that OHSU and the clinic did not keep records of where the sperm was sent and used so that, “it is impossible to discover just how many children born of Plaintiff's donations reside in Oregon, the United States, and/or the world." The lawsuit is pending.
CNN, Washington Post, 10/3/19; multiple news outlets