May 13, 2021
Author: Susan Crockin, JD
Published in: Legally Speaking Column
Colorado Passes Surrogacy LawAs Legally Speaking went to press, Colorado passed HB21-1022 and the governor signed the bill into law on May 6, 2022. The law creates the "Colorado Surrogacy Agreement Act," which will provide significant legal protections and guidance to gestational surrogacy in that state. A detailed report of that law will appear in a future Legally Speaking column.
IndiaIndia, formerly a major international destination for gestational surrogacy, is once again attempting to enact even stricter surrogacy and ART legislation. Starting in 2015 and expanded in 2018, the country first banned international intended parents from undergoing surrogacy in that country and then banned virtually all commercial surrogacy.
Three bills filed in 2020 now propose further ART restrictions and guidelines: the Assisted Reproductive Technology Bill, 2020; the Surrogacy Regulation Bill, and the Medical Termination of Pregnancy Amendment Bill. If enacted, the new laws would impose additional limits on surrogacy, gamete donation and ART within the country. Of note, the Assisted Reproductive Technology Bill, 2020 defines a “commissioning couple” as an infertile married couple, which would exclude single women and same-sex couples as intended parents since India does not recognize same-sex marriage.
Among the proposed new provisions is the establishment of a “National Registry of Banks and Clinics of India,” which would act as a centralized database into which all ART clinics and banks would be required to register every five years and be required to adhere to certain standards. State Boards for Surrogacy would also be established for the purpose of coordinating the National Boards policies, regulations, recommendations and guidelines.
The law would also limit gamete donor screening, collection and storage to registered ART banks, prescribe donor ages (21-55 for sperm donors and 23-35 for egg donors), and establish that donors have no parental rights to any resulting offspring. The proposed legislation would also impose strict limits on other aspects of egg donation, including: limiting donors to one donation, for only one commissioning couple, and with no more than seven eggs retrieved and requiring egg donors to be women who are or have been married, with at least one living child of their own who is at least three years old. Providing life and some health insurance coverage for the donor is mandatory.
According to published reports, the law would also require pre-implantation genetic testing and prohibit sex selection, with the latter punishable with fines for a first offense and for both fines and potential jail terms between 8-10 years for subsequent offences. The bill would also reportedly establish other offenses and penalties, including prohibiting:
“ (i) abandoning, or exploiting children born through ART, (ii) selling, purchasing, trading, or importing human embryos or gametes, (iii) using intermediates to obtain donors, (iv) exploiting commissioning couple, woman, or the gamete donor in any form, and (v) transferring the human embryo into a male or an animal.”Whether these proposed laws will be passed remains to be seen, but they reveal a strong intent to further regulate and limit the use of third party and other ART procedures in India.
Cambodia Gestational Surrogacy UpdateAfter India tightened its surrogacy laws, ending its reputation as an international surrogacy destination, Thailand, Nepal, and Cambodia each saw international surrogacy gain in popularity and then become subject to increased legal restrictions of their own.
After Thailand banned international surrogacy in 2015, Cambodia became a popular surrogacy destination, prompting Cambodia to ban commercial surrogacy in 2016. Despite that ban, international surrogacy continued in Cambodia for some time, and in 2018 resulted in the widely publicized arrest of 32 pregnant Cambodian gestational surrogates for Chinese intended parents. According to media reports, approximately 100 women were ultimately charged under that country’s human trafficking laws, and sentenced to a variety of jail terms, although most were suspended when the women agreed to keep and parent the children they birthed to adulthood. At least one of those women reportedly delivered while in custody, handcuffed to a hospital bed.
A November 2020 news article update reported on what it called a “happy” outcome. According to the Cambodian news service, that woman was contacted by the surrogacy program’s translator after her release from jail with a $30,000 offer from the child’s father to turn over the then two-year old she is raising. She reportedly refused (as the court’s conditions of release required) and is continuing to raise the child, to whom she reportedly felt increasingly “connected” first during and then after the pregnancy and while initially raising him in state custody. The article’s headline refers to the case as “a costly but happy result for one.”
“A Surrogate Family and the Law that Criminalised Them”; https://newnaratif.com/journalism/a-surrogate-family-and-the-law-that-criminalised-them/
Sperm Donor Suit Against Bank’s Use of Sperm After Alleged Donation Withdrawal SettledA lawsuit filed by a donor claiming his sperm was used in 2008 by a sperm bank despite his withdrawal of consent, has now settled and been dismissed with prejudice. The lawsuit, filed in federal district court in California, settled on January 13, 2021 while the case was still in the “pleadings” stage. Before that, the court had ruled on the defendants’ Motion to Dismiss (the point at which a court’s task is to determine whether the alleged facts—if proven—state a legal cause of action so the case can proceed or not). The court upheld eight, and dismissed two, of the ten alleged legal theories and its views of the applicable legal standards may be instructive for similar scenarios involving gamete banks or medical programs.
Bryce Branzell’s lawsuit alleged fraud, negligence, invasion of privacy, trespass to personal property, breach of fiduciary duty, intentional and negligent infliction of emotional distress, two violations of California’s Business and Professions Code, and also sought to find out if any other sperm samples of his were used in error. The Motion to Dismiss tested each of those theories.
A Texas resident, Branzell claimed he had sought to be a sperm donor at Northwest Andrology and Cryobank, Inc. and submitted a sperm sample, but changed his mind before leaving the building and told a staff member he did not wish to be a donor and did not want his sample medically screened. He was informed his sperm would be destroyed, but in fact it was retained and later provided to a single recipient instead of sperm from a donor she had chosen. “CC”, as the court named the recipient mother, gave birth to “TC” in July 2009. CC discovered the sperm mix-up in 2018 after she submitted TC’s DNA sample to an online genetic testing company. The sperm bank confirmed the mix-up but did not provide the identity of the actual sperm donor. Again, through the online genetic testing company, CC found relatives of the plaintiff, and ultimately in 2019 made contact with him. Through what the court described as “a series of reorganizations” the successor to the original sperm bank was ultimately sold to an entity called CCB-NWC LLC, one of the three named corporate defendants in the case.
As a procedural matter, among the defense arguments the court rejected was that the successor company should not be liable for its predecessor’s actions and that the claims were not “ripe.” The court noted that the terms of the business transaction included assuming the liabilities of the earlier entity associated with its biological inventory, and that the plaintiff alleged the successor entities did not attempt to confirm the existence or whereabouts of any other samples of his which could potentially have led to additional offspring. As to jurisdiction, while the court rejected defense claims that the court did not have proper jurisdiction to hear most of the claims in the case, it agreed with the defense that the two claims brought under specific California statutes should be dismissed since the donor lives in Texas and the alleged acts occurred in Montana.
On the negligence claim, the court rejected defendant’s argument that the plaintiff had not alleged physical injury, pointing to the language of the complaint where the plaintiff alleged he had suffered from “anxiety, guilt, humiliation, remorse and distress, which manifest in physical symptoms [court’s emphasis]”. The court also found no basis to support two other defense arguments: that the plaintiff had no legally protected privacy interest in the sperm or that its sale did not disclose any private information about him, noting that there was apparently enough genetic information revealed to track the donor down.
The court also rejected both substantive and statute of limitations arguments as to the two claims of conversion and trespass, instead relying on an exception in fraud cases where “a fiduciary has concealed the material facts giving rise to the cause of action.” Significantly, the court relied on the sperm bank being in the position of a fiduciary. It also found the alleged “trespass” was continuing, so on that count the statute would not have run out. The court also rejected the defense argument that because the plaintiff wanted his sperm sample destroyed, he could not establish a property injury in it. Instead, it relied on Hecht v. Superior Court, a 1963 California court case finding a deceased had an interest in his sperm and to whom it would be bequeathed, and confirmed the law recognized damages were available for proven annoyance, distress, and mental anguish.
While the settlement of this case means the merits of any factual claims under these legal theories will not be tested, the court’s analyses of legal theories of harm and damages in the event of a gamete bank (or other provider) misusing reproductive tissue may be instructive for future such disputes.
Branzell v. California Cryobank LLC et al, 480 F. Supp. 3d. 1080 (settled and dismissed with prejudice, Jan. 2021)
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.