SOME OFF THE CUFF OBSERVATIONS OF ZIKA VIRUS ADDENDA

There is no doubt that the Zika virus is a health crisis with a potential for horrific results. As the epidemiological puzzle has not been fully fleshed out, more questions remain then have been answered. For better or worse we also witness heightened media attention and its predilection for catering to hysteria and histrionics.

Histrionics aside, the tragedy visited upon an effected family will be immeasurable. The financial impact on a family for lifelong care will be catastrophic. It is only a matter of time before we see a lawsuit against a person or persons who may have prevented or minimized the damage to a child suffering Zika mediated microcephaly. If you do not believe there is an incentive to file against an offending party for a brain-damaged infant, I caution you with some headlines from 2014.

Georgia Jury Awards $8.4 Million In Action Brought On Behalf Of Infant Who Suffered Hypoxic Ischemic Brain Injury At Birth

Ohio Jury Awards $14.5 Million In Action Arising From Preterm Labor And Baby’s Resulting Brain Hemorrhage

The awareness of the virus, damage and associated costs has, within the ART community, prompted many responses. One, which we address here, is the so-called Zika Virus Addenda. When I look at these Addenda I see some of the best drafting I have been exposed to in years. I would, however, say that while the intention behind the drafting is noble, it is misplaced and will lead to more problems than it solves.

DRAFTING ATTORNEY CENTRIC VIEW

When we speak about the language contained within the Addenda, we fall into an argument of what is, in fact, appropriate direction. Ignoring the words themselves, we look at the aspirational nature of the words. Is the drafter providing us a “Standard of Care” or a “Best Practices” perspective?

“Standard of care” is a legal term with a clear definition. It is the level at which the ordinary, prudent professional having the same training would practice under the same or similar circumstances. Standard of care is not perfection or average. The standard of care is actually a pretty low threshold. The standard of care is what most reasonable professionals under similar circumstances do.  It is not an aspirational standard as the professional is permitted to be wrong or even make an error. The professional is not, however, permitted to be negligent.

“Best practice” refers to professional practices and procedures arising from the evidence discovered through academic research. A “best practices” approach applies the most recent, relevant, and helpful interventions to real world applications. Best practices are an aspirational approach to delivering professional services.

Many experts will opine that “standard of care” means, “best practice.” So any care that deviates from best practice, they contend, is a prima facie failure to meet or exceed the standard of care (and is therefore, malpractice). While this is generally a view within the university or research setting, it is specifically the interpretation that plaintiff experts will proffer in a malpractice trial.

A significant problem arises when our colleagues don’t articulate the difference between the standard of care and “best practices.” This is unfortunate because when we conflate “standard of care” with “best practices,” the perception becomes reality.  It’s important to articulate the difference.

In the reality that is a Zika addenda, a best practices approach to the behaviors demanded of a Surrogate is aspirational and, therefore, unrealistic.

SURROGATE CENTRIC VIEW

As stated earlier, Zika Addenda are well written. Perhaps, however, too well written. They are dense with medical language and terminology. They dictate patterns of behavior which are unrealistic in the real world and which go well beyond anything published by the Centers for Disease Control. They are, for the most part, aspirational and follow a best practices approach to managing risk.

In fact, as the vectors for disease transmission are not all known and are not subject to finite epidemiological pathways, any listing of prohibited behaviors or permitted actions cannot be complete. The Addenda create an illusion that following the aspirational language will prevent a Zika infection. As a practical matter then, Zika Addenda are inescapable traps from which infection will always be attributed to the Gestational Carrier as improper behavior(s).

Plaintiff counsel will draft a Complaint that will, of course, start out with a Breach of Contract count. Following that, expert testimony may provide testimony such to establish that the Addenda language sets a floor for a Count in Negligence Per Se.

(1) She violated clause in the Contract;

(2) The violation proximately caused injury to a Child;

(3) The injury resulted from an occurrence of the nature which the contract language was designed to prevent, i.e., that the failure to conform to the behaviors set out in contract language was inherently negligent; and

(4) The Child suffering the injury was one of the classes of persons for whose protection the language was adopted.

Will these fly? Who can know? Each jurisdiction is different as to the application of novel causes of action. We can be sure, however, the Carrier will be in the suit at least to a Motion To Dismiss.

There are other problems with the Addenda that the Carrier will have to address during Motion Practice.

  1. These Addenda are adhesion contracts. Generally, adhesion contracts create a power imbalance where the drafting party controls all contract terms. These Addenda are dense with medical terminology and medical direction, bordering upon the practice of medicine. Gestational Carriers may not fully read such dense documents nor understand the burden placed upon their behaviors.

Even if a Carrier reads and understands the Addendum, there is no room for negotiation. Should the Carriers find a term unfavorable, often, their only option is to match elsewhere. And, with Zika found in all but 5 states, the possibility for re-matching will be slight. Even if re-matching was possible, the Carrier may have to reimburse the IPs for their expenses leading up to her exit from the match. As a result, Carriers will most likely continue with the match and Addendum, stuck with an oppressive agreement.

  1. These Addenda are unconscionable. Unconscionability is generally recognized to include inequality of bargaining power which results in no real negotiation and ‘an absence of meaningful choice” together with contract terms which are overly harsh or one-sided. The fact that a Carrier either signs or goes back into the market demonstrates a certain inequality and, with terms that are overly oppressive, the Addenda fall squarely into being unconscionable. Unconscionable contract are unenforceable.

What can we glean from these thoughts? If a Carrier agrees to execute the Addendum and is infected, she is going to be sued. Carriers are generally uncollectible but an angry Parent may chose to “send a message” regardless.

Adding insult to injury, Carriers will most likely be unable to find $10,000 as a minimal deposit to hire counsel. I would expect the majority of these cases would end up with default judgments and a subsequent bankruptcy. As these cases would, most likely, not be appealed, we would not be fortunate enough to have appellate direction that could help stave off subsequent similar lawsuits.

REVIEWING ATTORNEY CENTRIC VIEW

A Reviewing Attorney will be putting their malpractice carrier on notice should the Carrier, their Client, is sued. Why? Simply stated, the Reviewing Attorney placed the client into a position where breach of contract is indefensible. Thus, the Carrier will file a third party complaint against the attorney alleging legal malpractice for permitting her execute the Addendum. Further, and depending upon the jurisdiction, there may be a concurrent ethical violation.

Interestingly enough, the Carrier must prove that but for the malpractice, there would not have been a Zika Addenda, or had the Addenda been drafted differently, she would not have been found to be in breach. So we revisit the standard of care vs. best practices once again. It would be perverse indeed if the Carrier/defendant argues standard of care while the Carrier/third party plaintiff argues best practices. That is most likely how we would see such litigation play out.M

Actress Sherri Shepherd Loses Appeal; Must Pay Child Support

A Pennsylvania court ruled that actress Sherri Shepherd has to pay child support for her child born of a surrogacy prior to her divorce. This is the first court ruling in Pennsylvania making surrogacy agreements binding. Shepherd appealed that ruling since she tried to void the surrogacy agreement when she filed for divorce. The court has denied that appeal and has upheld the lower court’s ruling.

sherri_shepherdThis decision is an important one not just for Pennsylvania, but for all states, because it reiterates and confirms the importance of upholding the validity and legality of parentage via surrogacy. By treating the child support issue as they would have had the child not been born by way of assisted reproduction, the court is sending the message that a parent of a child born via surrogacy is that child’s parent in all respects.

The result here brings attention to the fact that not only should individuals consider having a child via surrogacy carefully, the attorneys and professionals helping them through the surrogacy journey should take the time to make sure the individuals are aware of this responsibility. It is one of the many conversations that should take place before anyone takes this journey.

This is a positive step for the acceptance of parentage via surrogacy in our society, legitimizing this right to procreate.

ABA Adopts the Model Act Governing ART Agencies

The Assisted Reproductive Technology (ART) Committee of the American Bar Association, Section of Family Bar, brings together attorneys from all over who practice Assisted Reproductive Law. The Committee has become a place of leadership and guidance for all professionals in the field to aid in the understanding and practice of the complex and ever evolving landscape of ART law. Over the years the Committee has made great strides in the field. They have put on comprehensive continuing education classes for attorneys, which have been so successful that they have become a staple and significant portion of the ABA Family Law Conferences that happen twice a year and the group that attends the classes is growing every year.

Most recently, the Committee had a tremendous victory as its proposed The ABA Model Act Governing Assisted Reproductive Technology Agencies was passed and accepted into the ABA. A handful of prominent attorneys in the field including our very own Robert T. Terenzio, have been working on this Act for over twelve years to develop the Act and get it through the approval process. Forging a path for ART has not been easy and to now have a Model Act that will help further the safety and ethical practices, is a feat worth celebrating.

ART law is not nationally regulated and most states have differing laws and regulations when it comes to ART. Many do not address agencies and/or the commercialization of ART, making those relying upon ART an easy target for abuse. The Act’s purpose is to minimize exploitation of persons suffering from infertility as well as those working with them by setting guidelines that the unregulated and unlicensed industries involved in ART can follow. These guidelines are aimed at those industries that, unlike the medical, legal, and financial parties, do not yet require any sort of licensing to be an integral part of the ART journey.

Infertility affects a person physically, emotionally and psychologically. Any agency or person they work with to help them fulfill their dream of having a child has to be understanding of this and not take advantage or exploit these individuals. While most agencies do a great job of helping their clients, there are unfortunate situations where an Agency will capitalize on the vulnerability of a person who is doing whatever they need to in order to have a child. There have been cases of fraud, theft, and coercion and the Model Act is aimed at preventing that. Just last year a California based agency owner cheated its clients out of approximately $270,000.00. That owner was sentenced to 18 months in prison. (see article here)

The Model Act will require agencies to obtain a license within their jurisdiction and as a result will have certain affirmative duties in order to maintain the license. These include things such as not giving medical or legal advice, providing clients an easy to read description of their services, maintaining client confidentiality, requiring funds be held in an escrow account and continuing education. The Act also provides repercussions for not following the requirements, including fines of up to $25,000.00 for any one violation. The Act reiterates the importance of not defrauding or coercing its clients and to engage in fair practices.

What states will actually adopt the Model Act is still unknown but the step has been taken and the information is there. This is a great accomplishment for the ABA ART Committee, but more importantly, an impactful leap towards fair and ethical practices in the ART world.

Tax Court Rules: Egg Donor’s Compensation Must be Taxed

On January 22, 2015 the US Tax Court, in Perez v. Commissioner of Internal Revenue (144 T.C. No.4), ruled that an egg donor’s compensation for pain & suffering must be included in gross income and therefore taxed. The conclusion was that egg donors must report any compensation earned for their donation.

The plaintiff is a two-time donor who was donating through an agency. She decided not to report her compensation from either donation. Her belief, like that of many, was that the payments were “damages” for her pain and suffering, not compensation as income for her role in the donation.Gavel Pic

Section 104 (a)(2) of the Tax Code excludes damages from taxable income. It excludes from gross income, “… the amount of any damages (other than punitive damages) received (whether by suit or agreement and whether as lump sums or as periodic payments) on account of personal physical injuries or physical sickness.”

The Court referred to a number of cases and reasoned that damages are derived from a tort claim, legal action, and/or a settlement. Donor compensation is given in return for a waiver of the pain and suffering that is expected to occur as evidenced in the agency contract. The contract states, “This fee is for Donor’s good faith and full compliance” so the court held that the fee was compensation for services rendered and not damages for pain and suffering.

Those persons acting as egg donors are now on notice that payments arising from a donation are taxable. The question remains whether an agency or an intended parent must issue a 1099 to a donor, as well, as whether this case applies to gestational carriers as well. The case does not specifically address these issues, so we can only speculate.

Same Sex Marriage and Gestational Surrogacy in Florida

There has been much speculation regarding what exactly will happen to the gestational surrogacy process now that the ban on same sex marriage has been lifted.  As of January 6th, 2015, same sex couples can get married and the Florida clerks can issue marriage certificates. Past conversations with counsel for Vital Statistics revealed that as same sex marriages are not recognized in Florida, they are estopped from seeking parentage through an Affirmation of Parental Status.  The response then to this bar would require termination of the surrogate from the parent child relationship in favor of the biological Intended Parent and adding the second Intended Parent via a second parent adoption.  Thus, the couple was paying for two separate legal proceedings as well as home study, and with a significant time gap between the birth of the child and the finalization of parentage.

SS FlagFlorida’s marriage statute, 741.212(3) states that, “… the term “marriage” means only a legal union between one man and one woman as husband and wife, and the term “spouse” applies only to a member of such a union.”  Earlier this month, U.S. Federal Judge Robert L. Hinkle released a statement clarifying his decision finding the state’s ban unconstitutional. To clarify whether all jurisdictions should follow suit, Judge Hinkle wrote, “Reasonable people can debate whether the ruling in this case was correct and who it binds… There should be no debate however, on the question whether a clerk of court may follow the ruling, even for marriage-license applicants who are not parties to this case.” This statement by Judge Hinkle makes it clear that all clerks are and should follow the ruling and that if they don’t they would be inviting a lawsuit.

The Florida gestational surrogacy statute says a Commissioning Couple can partake in a surrogacy.  The statute at Section 742.15(1) states, “A contract for gestational surrogacy shall not be binding and enforceable unless … the commissioning couple are legally married …”

Judge Hinkle’s decision arguably impacts the Surrogacy Statutes by now including married, same sex couples into the group of persons who obtain parentage through an affirmation.  Our firm has spoken to the Office of Vital Statistics and they will accept an Order Affirming Parental Status and issue birth certificates with both parents’ names.  We also spoke to the Orange County judges to confirm their understanding of the effect of Judge Hinkle’s ruling upon surrogacy. The judges we spoke with will sign affirmation of parentage orders for married same sex couples following a gestational surrogacy so long as all of the statutory requirements are met. This confirms that, although discretionary, married same sex couples can rely upon the Florida gestational surrogacy statutes with the same confidence as married, heterosexual couples.

We will report back on other Counties and any feedback as it becomes available.

Is Egg Freezing Right for You?

There is no denying that egg freezing is a controversial topic. This has been much discussed in the Assisted Reproductive Technology (ART) world for some time now and with Apple and Facebook offering egg-freezing benefits for employees, the topic is under more scrutiny than ever. As a 27-year-old female ART attorney, this is of interest to me for more reasons than one. It is intriguing from a legal point of view, but it’s also a conversation about medical advances, social politics, business strategy, and moral interpretation. Our societal history divides women into two camps, those who have their career and those who have their children. What about the women who want the best of both worlds? Do we have to choose? Is egg freezing the solution?

Egg Freezing

 

Egg freezing preserves your fertility. Freezing eggs can give a woman the time she needs to focus on her career and achieve a level of success harder to attain otherwise. After all, statistics overwhelmingly demonstrate that most managerial and leadership positions are still held by men and childrearing and family building can negatively affect that opportunity for many women. Not to mention, some companies are now offering egg-freezing coverage for their employees so cost may not be as big of an issue.

 

Medically, this is also helpful for women whose health will impact their ability to produce eggs in the future. Women with cancer, for example, who have an expectation of chemotherapy, can freeze their eggs before treatment to retain the option of having a genetic child. The American Society of Reproductive Medicine (ASRM) considers egg-freezing an invaluable option for cancer patients. (see the ASRM Ethic Committee’s report on the effect of chemotherapy on fertility here.) This is an option for women with a strong family history of early menopause or premature ovarian failure.

 

Freezing eggs also provides one the ability to donate eggs to a woman who never had or has lost her ability to produce her own eggs. Egg donation is becoming increasingly popular and that is a direct result of the cryopreservation techniques for eggs used today. Unfertilized egg cryopreservation removes the necessity of a sperm contributor, medical costs, and medical risks associated with a fresh embryo transfer. Additionally, speaking from an ethical or perhaps religious perspective, some women rather freeze their eggs and not their embryos. They would argue the fertilized egg is a person and no longer just a gamete. Egg freezing allows preservation before “personhood” is achieved.

 

Conversely, there are many reasons to be skeptical of this technique and manner of preserving ones fertility. For starters, there is not a lot of research on the health or mental status of the resulting children. While ASRM removed the “experimental” label from egg freezing in 2012, they are not proponents of the technique for elective use. ASRM states there is “still not enough known about the egg freezing procedure’s safety, efficacy, cost-effectiveness, and emotional risks” and cautioned that it may “give women false hope”. The American College of Obstetricians and Gynecologists reported, “There are not yet sufficient data to recommend oocyte cryopreservation for the sole purpose of circumventing reproductive aging in healthy women.”

 

Additionally, as a clinic in California explains, there is the concern that not all eggs will survive the thawing process anyways and no guarantee that the woman will have a live birth from it. The age at which the egg is retrieved for cryopreservation is a large factor in the quality of the thawed egg. A Belgian bioethics report states “women tend to cryopreserve oocytes at an age that is suboptimal … in their late thirties – when both oocyte quantity and quality have already considerably diminished and success rates for eventually establishing a pregnancy are thus limited”. (See ASRM about diminishing egg quality here.)

 

In addition to not really being an insurance policy to having children later, there are also many health risks involved as well. New Republic states that some women have reported becoming infertile or experience early menopause after exposure to the drugs or have had retrievals that leave behind damaging scar tissue. The process is not by any means like retrieving sperm from a man; egg retrieval is a very intensive procedure and requires medication on top of an invasive surgery. Normally, a woman’s body produces one egg per cycle but, to freeze, a woman’s ovaries are stimulated to produce anywhere from 5-30 eggs (although 10-15 is common) for the retrieval. This stimulation can sometimes lead to Ovarian Hyper Stimulation Symptom and although the risk of it can be lowered there is always a risk. There can also be ovarian torsion and mental effects post treatment like depression and post traumatic stress disorder.

 

Lastly, the cost is huge down side to this procedure. Aside from paying approximately $500-$1000/month for storing the frozen eggs, there are costs associated with the procedure itself (approximately $10,000.00), the medications involved pre-retrieval and post-retrieval, the IVF procedure later on to become pregnant from the thawed eggs (approximately $5,000.00), and quite possibly the cost of having a surrogate carry the child if the woman cannot.

 

Overall, there are many things to think about when considering egg freezing but in the end, this is a woman’s individual choice. We are all different and only we can decide what our journey will be. What is important is that we do our research before making this decision. Informed medical consent is far from being everything necessary to know about this process and education on the matter is key. Don’t let comments like “take control of your biological clock” fool you; instead consider the facts and ask yourself, am I doing this because I have the luxury to, or because I need to? What am I giving up? Is this reproductive path a choice or a last resort?

7ème Colloque International 2014 de l’Association C.L.A.R.A

7ème Colloque International 2014 de l’Association

Création : http://www.arnaudkern.com/

Comité de Soutien pour la Légalisation de la GPA et l’Aide à la Reproduction Assistée
« Gestation Pour Autrui, Bilan d’une pratique de lutte contre
l’infertilité : 30 après, où en est-on ? »

Samedi 19 Avril 2014 de 8H30 à 13H00
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THEME ET PROGRAMME


Comme l’année dernière, ce septième colloque international de l’association CLARA sera résolument tourné vers les pratiques internationales de GPA. En effet, nous voudrions à la fois faire un bilan après 30 ans de pratiques dans le monde en s’intéressant à la façon dont les pratiques médicales, légales et psychologiques ont évolué, et à imaginer les grandes tendances pour l’avenir.
On dispose en effet aujourd’hui de centaines voire de milliers d’études, et des milliers d’enfants sont nés par GPA à travers le monde, mais de nombreuses résistances, notamment politiques, demeurent en France, qui est le seul pays en Europe a à la fois « tout interdire » et à ne pas reconnaître les enfants une fois qu’ils sont nés.
Notre association (1500 membres, pour la plupart des couples infertiles français, mais aussi d’autres pays européens) après avoir analysé les aspects légaux, médicaux ainsi que la psychologie des gestatrices, des parents intentionnels et des enfants au cours des 6 derniers colloques, propose de faire cette année un bilan global de la pratique de la GPA dans le monde et de revenir aux fondamentaux, à savoir « Comment ça se passe ? Et quelles sont les grandes tendances pour l’avenir ? ». En effet, malgré la communication tous azimuts sur le sujet, malgré des centaines d’interviews, d’articles et de documentaires dans les media, malgré les films, on s’aperçoit que les « débats » n’ont toujours pas eu lieu, que le sujet est encore pollué par beaucoup de clichés et que de nombreuses questions demeurent pour la plupart des Français.

I – CONTEXTE GENERAL
La gestation pour autrui est une solution médicale en forte croissance pour les couples infertiles depuis près de 30 ans. En raison d’une progression continue des taux de réussite mais aussi des possibilités croissantes de communication à l’ère du numérique, nous remarquons un développement significatif des GPA internationales. Les couples infertiles sont de plus en plus nombreux à se déplacer à travers les frontières pour trouver des endroits favorables à la GPA qui leur donnent la possibilité de construire leur famille.

II – LE PROGRAMME
8.30-9.00 accueil par la Mairie du 3ème (allocution de la mairie, sous réserve)
9.00-9.15 : Introduction et actualités par Sylvie Mennesson, co-présidente de l’association CLARA
9.15- 9.30 : Bilan de la situation en France et dans le Monde par Dominique Mennesson, co-président Association Clara, France.
09.30-09.50 : Présentation par docteur Lorie Arnold (directrice de la clinique de la fertilité CACRM) sur les avancées médicales en matière de lutte contre l’infertilité
09.50-10.10 : « Pratiques de GPA en Angleterre : quelles leçons en tirer ? » Par Susan Imrie, psycho-sociologue à l’université de Cambridge, Centre for Family Research (Angleterre)
10.10-10.30 : « Evolution du cadre légal de la GPA en Californie : un exemple à suivre pour le reste du monde ? » Par Robert Terenzio, avocat (USA)
10.30-11.30 : Table Ronde : « Comment organiser et mettre en place en France une GPA éthique ? Comment lutter contre les idées reçues ? » avec un psychologue ou sociologue, Laurence Brunet, juriste, Israël Nisand, gynécologue obstétricien.
11.30-12.30 : Témoignages et échanges avec des couples ayant déjà eu recours à la GPA
12.30- 12.45 : Conclusions du colloque
13.00 : fin du colloque

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Colloque du 19 avril 2014 de l’Association C.L.A.R.A

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Two Decisions Affect Intended Parents’ Right to Maternity Leave

The European Court of Justice (ECJ) for the European Union has ruled that Intended Mothers relying upon a surrogate may not be entitled to maternity leave. This ruling is a response to two cases where the Intended Mothers, one from the UK and the other from Ireland, were denied maternity leave. (See article of Irish genetic mother here)

The ECJ (See judgment) based its decision on three key points: 1) Maternity leave is given under the supposition that the person seeking it was pregnant and gave birth and therefore it does not apply to Intended Mothers, even if the Intended Mother is genetically related and/or breastfeeding the baby; 2) Refusing maternity leave is not discriminatory on the grounds of sex since an Intended Father is not entitled to it either; and lastly, 3) Refusing maternity leave does not infringe upon a person’s right under the Employment Equality Framework Directive since the inability to bear one’s own child is not a “disability” as it pertains to the workplace and the directive.

The ECJ did mention that the EU sets a minimum standard here and that the member states can apply more favorable rules for Intended Mothers if they wish.

Interestingly, the UK is taking legislative action regarding maternity leave for Intended Parents. Unlike the EU however, the UK’s Children and Families Bill (which will take effect starting 2015) grants Intended Parents the same rights off work to care for their children as other parents. This law puts the Intended Parents on equal footing as other parents and recognizes that all parents need that time to care for their children.

As the laws continue to catch up to technology, it will be interesting to see how these two decisions will influence the rulings to come.

Another Cautionary Tale for DIY Surrogacy

A UK surrogacy case has resulted in legal chaos and paternal uncertainty yet again. In this case, a husband and wife inseminated a good friend of theirs with the husband’s sperm. The parties did not consult or use a lawyer, physician, or a counselor, nor did they seek any other type of professional advice before commencing. They felt comfortable with their informal surrogacy arrangement and went forward with it.

The peaceful arrangement was short lived. The couple separated after the birth and when the Intended Mother tried to assert her rights, everything fell apart.

In the UK, without an adoption or a timely parental order, the birth mother is the natural mother. Ultimately, since neither an adoption or a parental order were done in time, the birth mother was able to retain rights to the child.

It is important to note that there were many missteps present here. In addition to the legal uncertainty and risk of doing a surrogacy without professional medical intervention, the parties also ignored the laws of their jurisdiction. So, not only was the surrogacy not medically appropriate, but even if it had been, they had no legal foundation to secure the appropriate parental rights.

The appropriate legal professionals should always be consulted before embarking on a surrogacy for the good of all parties involved.

Read the article here.

INTENT vs. BEST INTEREST OF THE CHILD: Who keeps the baby?

In a case that is sweeping the UK, a surrogate has decided to keep a child she gestated, but to whom she has no genetic connection.  This case prompts us to consider why we might elect to NOT pursue surrogacy in certain jurisdictions.

Generically, there are two mechanisms by which surrogate babies are transferred to their Intended Parents; “best interest of the child” and “intention of the parties”.

The “best interest of the child” is a standard used by the courts taking into consideration all factors that affect the child and their well-being, including familial stability, financial support, and possibility of abuse.

The “intention of the parties” is a standard used by courts and typically memorialized through statutes where parents who have contributed to and intended for the birth of the child to occur are the legal parents of the child. The Commissioning Couple is therefore the presumed natural parents. An example of this standard is the statutory law governing surrogacy in Florida. With this legal framework, a carrier mother who is not genetically related to the child born to her as a result of a surrogacy agreement would have no legal standing to keep the children.

The referenced UK case is an example of how determining parentage based on traditional familial standards may not be in the best interest of all parties.  The genetic parents do not have custody of their children after contributing their genetic material and years of emotional and financial strain. On the flip side, here is a woman who spent 9 months carrying and caring for them, now deciding their fate and, to a certain degree holding the genetic parents hostage via child support obligations.

Ultimately jurisdictions are still divided on how to approach legal parentage in assisted reproductive scenarios.  How do you think this case should end up?