Legislative Updates and Fertility Fraud Update
Feb 15, 2021
Author: Susan Crockin, JD
Published in: ASRM News February 2021
New York allows compensated surrogacy
New York’s long-awaited Child Parent Security Act (CPSA), which allows compensated surrogacy, went into effect February 15, 2021. As readers are aware (Legally Speaking, April 2020) the CPSA law addresses and regulates gestational surrogacy only, not traditional/genetic surrogacy, and expressly allows compensation for gestational surrogates along with multiple required protections. In announcing the enactment of the law, which includes a surrogate’s “Bill of Rights,” Governor Cuomo noted that--among other provisions--gestational surrogates are entitled to both life and health insurance under the law, paid for by intended parents, and intended parents have access to insurance coverage for surrogacy-related financial losses. (A more complete explanation of the law is available at Legally Speaking, April 2020 by guest author, New York Attorney, Denise Seidelman, who was deeply involved in the law’s development).
New York’s law now leaves Michigan as the only remaining state where compensated surrogacy is prohibited, and surrogacy contracts are unenforceable under that state’s Surrogate Parenting Act of 1988. While altruistic surrogacy has continued in Michigan, it requires a post-birth adoption, as the arrangements are unenforceable and there are no specific surrogacy-related protocols to acknowledge legal parentage for intended parents before or at the time of birth. Renewed attention to these issues has arisen with a recent case involving a Michigan couple who are in the process of adopting their biological twins carried by an uncompensated Michigan surrogate for them. The couple, who also has an older son, the surrogate, and her husband, are all in agreement as to parentage and the twins are at home with their biological parents.
Michigan’s current law recognizes the surrogate and any spouse as the legal parents until an adoption is completed, and two courts have refused to issue birth orders without an adoption. Although the uncontested adoption is expected to be allowed, the parents and others are raising complaints about the appropriateness of the restrictive law. Some commentators suggest this case may cast a spotlight on Michigan’s surrogacy laws and help bring them into line with most of the country.
Couple Forced to Adopt Their Own Child After a Surrogate Pregnancy, New York Times 1/31/2021.
Fertility Fraud Update
Arizona is considering a “Fertility Fraud” statute
Arizona’s legislature is considering a “Fertility Fraud” statute that would make it a civil offense for a physician to provide his own sperm to his patients. Similar laws, including criminal penalties, have been enacted in a handful of states in the past few years (Legally Speaking, 10/19). The Arizona bill, SB 1237, has passed a Senate panel unanimously and now heads to the state’s full Senate and, if passed, then to the House of Representatives. The law would allow lawsuits by each of the parents and provide any offspring the right to bring a lawsuit up to 10 years after his or her 18th birthday. There are provisions for both compensatory and punitive damages. An effort to enact a criminal law--as five other states have done--was rejected as going too far.
The bill was introduced after a former OB/GYN at Tucson Medical Center, Dr. James Blute, was found to be the biological father of at least several adult offspring whose parents had been his patients and unwitting recipients of his sperm. Once again, commercial genetic testing has made discovering these genetic connections, and in these cases, abuses, much easier. At least one of those offspring testified, and also has a lawsuit pending against Blute.
Other states, including California, Colorado (2020), Florida (2020), Indiana, and Texas have enacted “fertility fraud laws” in recent years which criminalize the behavior and provide for criminal penalties. (For a fuller discussion, see Legally Speaking 10/19 for events prior to Colorado and Florida’s enactment). One Arizona legislator suggested it might be possible to add in criminal provisions, including making the actions a felony, at a later time.
While the unconsented use of a physician’s sperm may already be “actionable” (the subject of a civil or criminal legal case) under a state’s general legal principles such as assault, battery, malpractice, and negligence, among others, such actions may not carry the specific penalties, nor are they likely to have specific and longer statutes of limitation that this newer law recognizes. Law Professor, Jody Madeira, leading legal expert on fertility fraud (and guest author of Legally Speaking, 10/19), testified in Arizona on the need for this legislation to hold physicians accountable.
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.