Embryos, Same-Sex Couples' ART Parentage Disputed in Courts

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.

Embryos Head Back to Court in Colorado

Colorado Supreme Court Adopts Balancing Test for Divorcing Couple’s Embryos in Absence of Prior Agreement

Faced with a divorcing couple who could not agree on the disposition of their six frozen “pre-embryos” and their IVF clinic’s “Embryo and Pre-Embryo Cryopreservation/Storage” consent form that did not include an advance, agreed-upon disposition, the Colorado Supreme Court adopted a balancing test and outlined a set of guidelines to resolve the stand-off.

The couple had three children via IVF. The ex-wife wanted to keep the embryos to have more children while the ex-husband wanted them discarded. The clinic’s form contained a “disposition plan”, but it stated only that, in the event of a divorce, “the disposition of the embryos will be part of the divorce/dissolution decree paperwork.” That language shifted the decision-making timeframe to the time of divorce, and without the couple’s agreement, left it to their divorce court to decide what to do with the embryos.

The Colorado Supreme Court reversed the lower court ruling, which had awarded the embryos to the ex-wife. Instead, the high court essentially following the reasoning of the seminal 1992 Tennessee Davis v. Davis case. It found both that the couple had equal, but competing, procreative and non-procreative rights, and that a prior agreement evidencing their intent would have been followed. In the absence of such an agreement, however, the court held it would adopt a balancing framework for resolving such disputes. It set out a number of factors that should be considered, a few that should not be, and sent the dispute back to the trial court to apply the newly articulated test (no new decision has been reported yet). It ruled the following factors should be considered:
  • Whether the spouse who wants to preserve the pre-embryos intends to use or donate them
  • The demonstrated physical ability or inability of the spouse seeking to implant the pre-embryos to have biological children through other means
  • The parties’ original reasons for undertaking IVF
  • The hardship for the spouse seeking to avoid becoming a genetic parent, including emotional, financial or logistical considerations
  • A spouse’s demonstrated bad faith or attempt to use the pre-embryos as unfair leverage in the divorce proceedings
  • Other considerations relevant to the parties’ specific situation
The Colorado Supreme Court said the trial court should not consider the following factors:
  • Whether the spouse seeking to be a genetic parent via the pre-embryos can afford a child
  • The number of existing children
  • Whether the spouse seeking to use the pre-embryos to become a genetic parent could instead adopt a child or otherwise parent non-biological children
The case is yet another reminder of the benefit of written records of intent, and the value of clinics crafting documents that clearly set out and reflect their patients’ agreed upon dispositions. (SART model consents and agreements address these issues.) On the other hand, a law such as one recently passed in Arizona (Ariz. Rev. Stat. Ann. § 25-318.03 (2018)) would vitiate any such agreement, instead requiring control of the embryos to default to the former spouse who wants to bring them to life. It remains to be seen if the Arizona law will be challenged and can withstand any challenge to its constitutionality. Outside of Arizona, In the absence of clear dispositional choices recorded in prior clinic consents or agreements, more divorcing couples with stored embryos may find themselves in court.
In re Marriage of Rooks, 429 P.3d 579 (Sup. Ct. Colo. 2018).

Same-Sex Couples’ ART Parentage Disputes in the Courts

Hawaii Supreme Court Rules Divorced Lesbian Spouse is Legal Parent
The Hawaii Supreme Court has held a formerly married lesbian spouse was a legal parent to the child born after her divorce from the biological mother. LC divorced her spouse, MG, before a child was born to MG with the assistance of a sperm donor, and LC had sought an order disestablishing her status as a legal parent. Instead, the court held that, as the wife, LC was presumed to be a legal parent of the child born during the parties’ marriage, applying the UPA’s (Uniform Parentage Act) marital presumption of paternity to maternity for a woman in a same-sex marriage.

Before relocating to Hawaii, the couple had gone to a Maryland fertility clinic together in 2013 where they signed the clinic’s “Ovulation Induction, Monitoring and/or Insemination Treatment” form and a “Consent to Accept Donated Sperm from Anonymous Donor” and decided MG should carry the child. The parties relocated to Hawaii in 2014 and both visited a fertility center there. LC then deployed overseas and the couple continued to communicate regarding MG’s plans to become pregnant. In March 2015, MG signed the Hawaii clinic’s “Consent for Intrauterine Insemination” on her own as LC was still deployed, and updated LC at each step of the process. MG became pregnant and LC attended an ultrasound when she returned. The court found that LC did not prove by clear and convincing evidence that she did not consent to MG’s artificial insemination procedure, and thus instead applied the parental presumption.
LC v. MG and Child Support Enforcement Agency, 2018 WL 4804417 (Haw. 2018).

Pennsylvania Supreme Court Rejects Same-Sex Parentage Status to Non-Marital Partner

In contrast to the Hawaii ruling, a Pennsylvania court found that a former same-sex, unmarried partner, CG, who sought parentage status did not qualify to be a parent of the child of her former partner, JH, conceived using an anonymous sperm donor. Although the couple lived together with the child for five years, after their separation, CG had only what the court described as “remote contact” with the child, and thus denied her custody complaint that she had acted as a mother and was seeking shared legal and physical custody.

The Pennsylvania Supreme Court held that a former partner was not a “parent who has standing to seek custody of child.” The court refused to follow CG’s argument or Massachusetts law that a man (who is not the biological father) may nonetheless be the legal father of a child born outside of wedlock “if he jointly, with the mother, received the child into their home and openly held out the child as their child.” (Partanen v. Gallagher, 475 Mass. 632, 59 N.E.3d 1133, 1135 (2016). In Gallagher, the court applied the Massachusetts statute in a gender-neutral manner, allowing a former same-sex partner to be the presumed parent of a child even though she was not married to the mother and had no genetic tie to the child.

The Supreme Court of Pennsylvania distinguished its case from the Massachusetts decision, finding that CG did not jointly participate in the child’s conception or hold him out as her own. The trial court was unpersuaded by several facts, including that the child was conceived while the parties were in a relationship, that he referred to CG as “Mama”, and that both parties acknowledged that at the time and place of the child’s birth, same sex marriage and second parent adoptions were not recognized.

When considering CG’s argument that she should have “in loco parentis” status, a form of parentage, the court looked at whether she had discharged parental duties and assumed parental status. The court held that the post-separation conduct of CG, even if it should not directly control or determine a claim of “in loco parentis” status, was “consistent with its initial determination.” Finding that the post-separation conduct was reflective of what occurred when CG and JH were living together, the court held that CG was not a legal parent. Read together, these two cases from Hawaii and Pennsylvania--- and the cases they discuss, reflect how difficult it can be to reliably predict legal parentage outcomes for individuals who do not fit squarely within existing, state-specific, statutory parentage laws.
C.G. v. J.H., 193 A.3d 891 (Pa., 2018).

International News

Malta Expands Permissible ART Treatment in Amendment to its Embryo Protection Act

Malta’s Embryo Protection (Amendment) Act, effective October 1, 2018, allows access to IVF by single and lesbian women, raises the age for women undergoing IVF from 43 to 48, and legalizes both gamete donation and embryo freezing. Surrogacy remains illegal. Both sperm and egg donors will be allowed to donate only once, and the donation can only be used to create one family.

Previously, under Malta’s Embryo Protection Act (2012), only two eggs could be fertilized using IVF, and all fertilized eggs had to be transferred to the woman. Eggs could be frozen unfertilized. Freezing embryos was only permitted when a woman suffered serious illness or injury between fertilization and the planned transfer date.

The new amendment permits embryos to be frozen. Up to five embryos are allowed to be created, with a maximum of two allowed to be transferred at a time. Embryo research and discarding embryos, even with a serious defect, remain illegal. If more than two embryos are created, they must be frozen and subsequently used to try to establish a pregnancy. If frozen embryos remain once the family is complete, or the woman reaches age 48, the embryos must be made available for “adoption” to qualified recipients, to avoid discarding them or freezing them indefinitely.
Bill C 377 to amend the Embryo Protection Act, Cap. 524 (2018) and - 

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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