Assisted Reproductive Technology Law:

Methods, Parental Status, Standards

of Care, Contracts/Documents

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THURSDAY, JULY 18, 2019

Presenting a live 90-minute webinar with interactive Q&A

Colleen M. Quinn, Partner, Adoption & Surrogacy Law Center at Locke & Quinn,

Richmond, Va.

Ellen E. Trachman, Partner, Trachman Law Center, Denver

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Assisted Reproductive Technology Law: Methods, Parental Status, Standards of Care, Contracts/Documents

Presented by

Ellen Trachman and Colleen Quinn

For Strafford

July 18, 2019

Disclaimers

• No attorney-client relationship is formed by attending this CLE.

• Ellen is licensed to practice law in California, Colorado, and New Mexico. Colleen is licensed to practice law in Virginia.

• Always, of course, engage a skilled attorney with the requisite specialty in your jurisdiction to assist you with your legal issues.

• Attend ART Conferences!

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• ART-specialized attorney

• Managing Attorney of Trachman Law Center, LLC

• Co-Director of Colorado Surrogacy, LLC

• Write Weekly ART Column for abovethelaw.com

• Co-Host Podcast “I Want To Put A Baby In You”

She also has a million...er.. four kids.

Ellen

Honors: 2018 DBJ 40 Under 40; 2017 GLBT Center Legal Volunteer of the Year; 2015 CO LGBT Chamber Entrepreneurial Woman of the Year

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• Partner at Locke & Quinn

• Founder of the Adoption & Surrogacy Law Center and Women’s Injury Law Center

• Specialized in Adoption, ART, Estate, PI, Medical Malpractice, and Employment Law

• AAAA Member Since 1995; Past President, Treasurer

• Consistently Recognized as a Top/Best/Leading Attorney in Virginia and Nationally

• Mother of Twins

• Teaches Aerobics in Her Spare Time (What spare time?!)

Colleen

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Roadmap

1. Background on assisted reproductive technologies

2. Contract Drafting

3. Parental rights

4. Potential claims against ART providers

This Photo by Unknown Author is licensed under CC BY-SA-NC

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ART Includes…

• Sperm donation

• Egg donation

• Embryo donation/adoption

• IVF (in vitro fertilization)

• IUI (intra uterine insemination)

• Genetic surrogacy

• Gestational surrogacy

• Sperm cryopreservation

• Egg cryopreservation

• Embryo cryopreservation

• Post-death gamete harvesting

• Post-death conception

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This Photo by Unknown Author is licensed under CC BY-SA

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I. Background on Assisted Reproductive Technologies

• Assisted Reproduction Technology has changed the natural limits to reproduction

• 70+ year-old giving birth

• 8 children born at once to one woman

• Three-parent embryos (+ potential for embryos formed from two parents of the same gender)

• Non-biologically related children gestationally carried to birth by an unrelated woman

• Children born years after the death of a biological parent

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Sperm & Egg Donation

1. Statutory Protections-Examples: CA Family Code 7613v CO 19-4-106

2. Lack of Regulation-e.g. number of times a donor can donate, limitations on live births from donors, government registries-current Manhattan Cryobank Case

3. “Anonymous” v. Known-Explosion of DNA Testing-NW Cryobank/TeuscherCase

4. “Private” v. Bank5. Disposition of Remaining Gametes

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Embryos

• Persons-Louisiana Defines Embryos as “Juridical Persons”-Georgia Embryo Adoption Statute

• Quasi-Property-Property with Special Characteristics

• Property-Canadian Ruling: SH v DH

Dispositional Disputes

1. Contract Approach

2. Balancing of Interests

3. Contemporaneous Mutual Consent

❖ Davis v Davis, 842 S.W.2d 588 (1992)

❖ Rooks Case❖ McQueen v Gadberry❖ Arizona Embryo Statute

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Surrogacy

• Incredible Variance Throughout the World• Many countries ban all forms of

surrogacy

• Some permit uncompensated surrogacy

• Rights to parentage and citizenship vary

• Scandals and trends • Baby Gammy Case

In the US, Law Varies By State• Some states surrogacy is

illegal• Baby M Case • Baby S Case

• Some states have supportive statutes

• Constitutional Challenges• Cook Case

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Postmortem Retrieval and Posthumous Conception

• Retrieval and Use: How important is consent from the deceased (and how specific must it be)• Israeli Cases

• Recent Zhu Case

• Probate issues

L A W C E N T E R L L C

T R A C H M A N L A W C E N T E R . C O M

Reproductive Rights for the Dead

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II. Contract Drafting - Prerequisites

Prior to Contract Drafting – Many Prerequisites need to be Addressed.

Here are General No Cost Items:

• OB-GYN clearance on Carrier-Surrogate

• Carrier-Surrogate have health insurance? Is there a surrogacy exclusion?

• Background forms completed and shared?

• Similar views on abortion & selective reduction?

• Proximity? (not applicable to international arrangements)

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Contract Drafting – Prerequisites (cont.)

No Cost Items (cont.):

No Cost Items (cont.):

• Does Carrier-Surrogate enjoy being pregnant and have easy pregnancies?

• Carrier have no more than 5 prior pregnancies and 3 prior c-sections(see ASRM guidelines)

• Carrier have supportive spouse-partner?

• Carrier deliver at least one prior child (and more ideally – is done having children for her to raise)?

• Carrier’s job conducive to being pregnant? (e.g., cannot be military subject to deployment, firefighter, elite athlete, sky diver, horseback riding instructor, etc.

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Contract Drafting – Prerequisites (cont.)

No Cost Items (cont.):

More No Cost Items:

• Carrier willing to adhere to physical activity restrictions? (e.g., no scuba diving, triathlons, sky diving, water or snow skiing (at least after first trimester), racing, horseback riding, etc.)

• Carrier willing to adhere to ingestion restrictions? (e.g., not just no non-prescribed or illegal drugs or alcohol or tobacco -but not eat raw seafood, fish that might have mercury, etc.)?

• Carrier willing to avoid any body piercings, tattoos, henna, even certain hair dyes?

• Carrier willing to not change kitty litter, avoid second hand smoke, avoid travelling to CDC Zika virus watch places, avoid working around paints/solvents/harmful or toxic cleaning products, agree to hands-free driving equipment?

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Contract Drafting – Prerequisites (cont.)

No Cost Items (cont.):

• General agreement on financial or monetary terms (altruistic? quasi-altruistic? Arms-length?)

• Agreement on method of payment?

• Similar views on confidentiality?

• General agreement re level of contact during agreement? After agreement?

• Home visit of Carrier-Surrogate? (and maybe of IPs?)

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Contract Drafting – Prerequisites (cont.)

• Screening completed per ASRM guidelines? (physical and mental)

• Group counseling?

• Background checks done or knowingly to be waived (criminal, CPS, credit)?

• Insurance reviewed to confirm no issues with coverage?

• Applicable law?

• Questionnaires for contract drafting completed?

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Contract Drafting – Prerequisites (cont.)

Parties and Questionnaires for contract drafting Questionnaires should address:• Exact financial terms• Number of embryos to be transferred per attempt• Number of embryo transfer attempts to be made• How long Carrier-Surrogate will be under contract• Number of fetuses Carrier-Surrogate is willing to carry to term• Other issues as set out in this outline.

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ASRM Guidelines

• https://www.asrm.org/globalassets/asrm/asrm-content/news-and-publications/practice-guidelines/for-non-members/recommended_practices_for_utilizing_gestational_carriers-pdfnoprint.pdf

• Are downloadable even for non-members – but encourage you to join!

• Contain the primary standards for screening both intended parents and surrogates and carriers and their spouses-significant others – both medical and mental health screening. Also see guidelines for sperm, egg, embryo donation

• Know them!

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Contract Drafting Fundamentals

• First, mentor with an experienced ARTs practitioner on a case, if possible

• Attend Contract Drafting Programs

• Please do NOT ask other ART attorneys for a copy of their contracts to use• law varies from state to state – so the contract will vary from

state to state

• there are malpractice implications

• asking someone for what may be years and years of their work product

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Contract Drafting Fundamentals

1. Have a Table of Contents.

2. Have Section Headings

3. Have a Logical Order - Chronological is best:• Intent and purpose, representations, definitions, choice of law• Preliminary matters – what law to apply? Prerequisite issues

(background, screening, etc.)• Medical instructions; Conception procedures• Potential Events During the Pregnancy – Divorce, Death, Selective

Reduction, Breach, etc.

• Boilerplate Provisions

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Contract Drafting Fundamentals -Put the Boilerplate Provisions at the End – As You Would For Any Contract

• Contractual obligations

• Governing Law

• Choice of forum for disputes

• Notice

• Severability Clause

• Acknowledgement of Advice of Counsel

• Modification, Revision or Amendment

• Changing and Evolving Law

• Termination/ Duration of the Agreement

• Original Agreement

• Entire Agreement

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Contract Drafting Fundamentals – Primary Provisions – Sample Table of Contents

TABLE OF CONTENTS TO GESTATIONAL CARRIER AGREEMENT 1. Purpose and Intent ................................................................................ 1 2. Representations .................................................................................... 2 3. Definitions ............................................................................................. 3 4. Applicable Law, Jurisdiction, and Venue ............................................... 5 5. Effective Date ........................................................................................ 5 6. Physical Examinations, Psychological Evaluations and

Background Information ...................................................................... 6 7. Home Study........................................................................................... 8 8. Counseling ............................................................................................ 9 9. Conception ........................................................................................... 10 10. Medical Instructions .............................................................................. 12 11. Resolution of Parental Rights ............................................................... 22 12. Custody ................................................................................................ 23 13. Divorce or Separation ........................................................................... 24 14. Death of the Intended Parents ............................................................. 24

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Contract Drafting Fundamentals – Primary Provisions – Sample Table of Contents

15. Child’s Name and Birth Certificate

16. Health Benefit Program

17. Payment-Reimbursement of Expenses

18. Breach of Agreement by the Gestational Carrier

19. Breach of the Agreement by the Intended Parents

20. Miscarriage, Stillbirth or Death of the Child

21. Assumption of Risk and Release of Liability

22. Assumption of Responsibility for Child and Medical Costs

23. Notification of Labor

24. Termination of Pregnancy

25. Genetic Testing and Failure of Intended Genetic Relationship

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Contract Drafting Fundamentals – Primary Provisions – Sample Table of Contents

26. Gestational Carrier’s Residency

27. Duties of the Husband of the Gestational Carrier

28. Confidentiality and Continued Contact

29. Contractual Obligations

30. Notice

31. Severability Clause

32. Acknowledgment of Advice of Counsel

33. Modification, Revision or Amendment

34. Changing and Evolving Law

35. Original Agreement

36. Entire Agreement

37. Termination

38. Copyright

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III. Parental rights

• Establishing parental rights of a child conceived through Assisted Reproductive Technologies• Legal Presumptions• Adoption• Parentage Order

• Rethinking Estate Planning• “Born to” or “Adopted by”

• How Many Parents Can One Child Have?• Risks of Single Parenthood• More than Two Parents

• New York Case Law• Ontario Statute

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Discrimination Problems

• MS Anon Donor Named Dad-Strickland Case

• WI Surrogacy Nightmare-Timmons/Olson Case-VA’s Jacob’s Law

Protections: Adoption/Court Order/Beware of Going Abroad

• Internationally Even Worse- Many Countries Prohibit Same-Sex Marriage, Adoption

• Babies Denied Citizenship- Multiple French ECHR Cases - Singapore Case

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Parentage Recognition:Is a Birth Certificate Proof of Parentage?

• Especially an issue for LGBT parents

• Administrative Document – Not Granted Full Faith and Credit like a Court Order

• Castillo v. Lazo, Court of Appeals of Arizona, Division 2, (December 9, 2016) -- held that a birth certificate is not proof of parentage

• V.L. v. E.L., 136 S. Ct. 1017 (2016) --AL obligated to grant FF&C credit to GA second-parent adoption decree This Photo by Unknown Author is licensed under CC BY-NC-ND

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IV. Potential claims against ART providers

• A. Lost or Destroyed Embryos – Most Recent Case – Cleveland Clinic – Serving as Expert on Damages

• B. Medical Malpractice-Negligence Claims – for example, overstimulation of ovaries. mis-diagnoses

• C. Transfer of Wrong Embryo/Embryo Mix-Up• D. Providers Swapping Out Own Sperm

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A. LOST AND DESTROYED PRE-EMBRYOS – ACTUAL CASE IN VIRGINIA

• Stored embryos for eight years

• Two children (several years apart) carried already from same batch

• Intended Mom prepares for transfer (at great cost)•When transfer procedure

to occur – clinic cannot find the embryos

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Limitation of Damages Provisions

“The Storage Client agrees that in the event of loss or destruction of their embryos by any reason whatsoever during transport or storage, damages to the Storage Client as a result thereof would be highly conjectural and speculative and would be difficult to determine. Accordingly, the parties hereto agree that in the event the Storage Client’s embryos are lost or destroyed by virtue of the breach of this Agreement or negligence by the Cryobank, the Storage Client shall be entitled to damages in the amount equal to the storage charge for the particular year in which the loss occurs, plus $400 per embryo lost (maximum compensation to Storage Client not to exceed $2,000).”

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Actual vs Limited Damages:

• Actual Damages: Approximately $40,000 for the creation of the embryos; eight years storage through several facilities; medical procedures and medications required to prepare Intended Mom for implantation of embryos. Also emotional damages to Intended Parents, irreplaceable property since Intended Mother now older and not capable of reproducing quality eggs.

vs.•Liquidated Damages under the Limitation of

Damages Provision: $400 per embryo and $300 annual fee for the year in which the embryos were lost or destroyed.

Total of $1,100.

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General principles

• Whether stipulated sum for a breach of contract is a penalty depends on whether the sum is reasonable and in proportion to the damage that probably will result from a breach.

• Liquidated damages provisions are unenforceable if they are not reasonable estimates of prospective damages.

• Court should compare the amount stipulated with the probable damages from a breach to determine whether the stipulated sum was arrived at as a result of a good-faith endeavor to estimate damages or was fixed for some other purpose.•Is the sum agreed on a reasonable

forecast of just compensation for the harm caused by the breach?

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York v. Jones, 717 F. Supp 421 (E.D. Va. 1989)

• Facts: Plaintiffs seek the release and transfer of their pre-zygote from the Jones Institute in Virginia to the Hospital of the Good Samaritan in California. Defendants refuse to consent to the inter-institutional transfer.

• Theories: Previous allegations of fraud and severe emotional distress due to breach of contract were found to be deficient; plaintiffs’ allegations did not satisfy the elements. Plaintiffs’ remaining Complaint is in four counts: breach of contract; quasi-contract; detinue; and 42 USC §1983.

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Actual Contractual Language in York v Jones:

“Should we for any reason no longer wish to attempt to initiate a pregnancy, we understand we may choose one of three fates for our pre-zygotes that remain in frozen storage. Our pre-zygotes may be: 1) donated to another infertile couple (who will remain unknown to us) 2) donated for approved research investigation 3) thawed but not allowed to undergo further development.”

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Helpful Holdings in York v Jones:

• The Court finds that the Cryopreservation Agreement creates a bailor-baileerelationship. The essential nature of a bailment relationship imposes on the bailee, when the purpose of the bailment has terminated, an absolute obligation to return the subject matter of the bailment to the bailor. The Court also finds that the Cryopreservation Agreement is subject to the same principles that apply to other contracts.

• The Court notes that the Cryopreservation Agreement should be more strictly construed against the defendants, the parties who drafted the Agreement. The Court infers from the above Agreement provision that the defendants fully recognize plaintiffs’ property rights in the pre-zygote and have limited their rights as bailee to exercise dominion and control over the pre-zygote. Because the Agreement does not state that the attempt to initiate a pregnancy is restricted to procedures at the Jones Institute, the “three fates” are inapplicable.

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Helpful Holdings in York v Jones:

• Elements of a Detinue action in Virginia: (1) plaintiff must have a property interest in the thing sought to be recovered; (2) the right to immediate possession; (3) the property is capable of identification; (4) the property must be of some value; and (5) defendant must have had possession at some time prior to the institution of the act. D.T. Vicars v. Atlantic Discount Co., 205 Va. 934, 140 S.E.2d 667, 670 (1965).

• If the property is in the possession of a bailee, an action in detinueaccrues upon demand and refusal to return the property or upon a violation of the bailment contract by an act of conversion. Gwin v. H.T.N. Graves, 230 Va. 34, 334 S.E.2d 294, 297 (1985).

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Summary of Possible Theories for Lost & Destroyed Embryos

• Medical malpractice

• Breach of Contract

• Bailment

• Negligent Infliction of Emotional Distress

• Intentional Infliction of Emotional Distress

• Wrongful Death

• Negligence- Physical Injury

• Loss of Property

• Property Based Detinue

• Wrongful Life

• Fraud

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B. Medical Malpractice in ARTS: Actual Case Scenario

• Intended Parents hire Gestational Carrier to carry previously frozen embryos in Virginia.

• Carrier becomes pregnant, develops some problems and goes to local medical center where they do an ultrasound.

• Ultrasound is not read properly by the staff who did not correctly find that Carrier has a normal pregnancy and ectopic pregnancy.

• Medication is given and procedure done that causes loss of BOTH pregnancies although this could have been avoided if the ultrasound had been read properly. Carrier also loses one of her tubes in subsequent procedure.

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Who has been damaged and how?

• Carrier has lost the pregnancy and benefit of the Gestational Carrier arrangement

• Medical issues of whether Carrier would have had same injuries (loss of tube) if alternative procedure done

• Intended Parents have lost the potential child plus cost of creating and preserving the embryos, cost of medical procedures to transfer the embryos, legal costs (for themselves and the Carrier) and preliminary payments to the Carrier

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Who has the cause of action?

• Carrier has a traditional malpractice case.• Can she claim loss of the benefit of her Gestational Carrier

Agreement?

• Do the Intended Parents have any standing or a cause of action?• Who gets to claim the loss of the cost of the creation of the

embryos?

• Who gets to claim the cost of the embryo transfer?

• Who gets to claim the damages of initial payments made to the Carrier?

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Could the Intended Parents assert a direct cause of action via a claim of tortious interference?

Elements for tortious interference in Virginia are:

• 1) A valid contractual relationship exists (which it does in the Actual Case Scenario);

• 2) Knowledge of that relationship by the alleged tortfeasor (in the Actual Case Scenario, the medical practitioner either had knowledge or at least had constructive knowledge (should have known) that the Gestational Carrier was carrying embryos for the Intended Parents);

• 3) Intentional interference w/ that relationship inducing/causing a breach of relationship (this is the act of malpractice);

• 4) Resultant damage to the claimant.

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What about assignment by the Gestational Carrier of her Medical Malpractice Case, or of the Proceeds?

• Personal injury or medical malpractice cases generally are not assignable

• Generally, the assignment of a right of action is barred, but assignment of proceeds is admissible.

• For example, Va. Code Ann. § 8.01-26 specifies that only those causes of action for damage to real or personal property, whether such damage be direct or indirect, and causes of action ex contractu are assignable. The provisions of this section shall not prohibit any injured party or his estate from making a voluntary assignment of the proceeds or anticipated proceeds of any court award or settlement as security for new value given in consideration of such voluntary assignment.

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Do the Intended Parents have standing on behalf of the fetus?

• Stewart-Graves v. Vaughn, 162 Wash.2d 115, 170 P.3d 1151 (Wash. 2007): "The duty of healthcare providers to provide non-negligent prenatal counseling and medical care extends to children not yet conceived or born."

• Johnson v. Thompson, 650 S.E.2d 322 (Ga. App. 2007): "Obstetrician providing prenatal care owes a duty of care to both the mother and the fetus.”

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C. Transfer of Wrong Embryo/Embryo Mix-Up

• https://www.washingtonpost.com/nation/2019/07/08/twins-ivf-birth-lawsuit/

• She gave birth to twins through IVF. But the babies weren’t hers, a lawsuit alleges.After six years of trying to conceive, a couple transferred two embryos they thought had been created from their genetic material. The results suggested otherwise as two Caucasian baby boys were delivered instead of the two expected Asian girls.

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Transfer of Wrong Embryo/Embryo Mix-Up

• They relinquished the children (unknown if the genetic parents were found) – the twins also were unrelated

• Civil lawsuit A.P. and Y.Z. versus CHA Fertility Clinic was brought last week in the Eastern District of NY against CHA Fertility Center in LA alleges:• Medical malpractice

• Negligence

• Battery

• Intentional Infliction of Emotional Distress

• Seeks both Compensatory and Punitive Damages

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D. Sperm Swapping Gone Berserk

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Up to 75 Children?

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Doctor Is Found Guilty in Fertility Case March 4, 1992

ALEXANDRIA, Va. — A Federal jury convicted an infertility specialist, Dr. Cecil B. Jacobson, on 52 counts of fraud and perjury for artificially inseminating unwitting patients with his own sperm and for telling them they were pregnant when they were not.

After the trial, jurors said that DNA tests indicating that the doctor had fathered 15 children for his patients had convinced them that he lied about the source of the sperm. The prosecutors charged that Dr. Jacobson may have fathered as many as 75 children.

Court Judge James C. Cacheris said some of Jacobson's former patients had written to tell him they were treated like human guinea pigs and were still receiving therapy because of the experience.

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Miracle Men or Egomaniacs?

• "He was like a conductor on a train," said the jury foreman, Daniel Richard.. "Some of his patients got off, ecstatic that they had a baby, but others felt he lied to keep them on the train.”

• At the time, the 55-year-old doctor, who was married and had eight children by his wife, had treated hundreds of infertile women referred to him by other doctors who believed he was the best in his field. He was credited in court testimony with being the first in the United States to introduce amniocentesis, a test in which fluid is extracted from the womb to detect birth defects.

• Jacobson was convicted for five years and ordered to pay $116,805 in fines and damages .

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Deja’ Vu? Gene Pool Dilution or Pollution?

Dutch Fertility Doctor Swapped Donors’ Sperm With His, Lawsuit ClaimsBy CHRISTOPHER F. SCHUETZE MAY 15, 2017 THE HAGUE — Twelve people who were conceived with sperm from a Dutch fertility center, ages 8 to 36, have filed a lawsuit asserting that its longtime director is their biological father, and that over several decades, he swapped donors’ sperm with his own. Dr. Jan Karbaat died in April 2017 at 89.

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Gene Pool Dilution vs Pollution

• “I’m hoping that the judge will allow us to extract the DNA so we can use it to find out if we are his children,” one plaintiff, Moniek Wassenaar, 36, said.

• From 1980 to 2009, Dr. Karbaat ran one of the largest sperm banks in the rear of his stately yellow brick house near Rotterdam. About 10,000 children are estimated to have been conceived at the clinic.

• Now 23 Dutch people want DNA tests to see if Karbaat used his own sperm but Karbaat asked in his will that no DNA tests be carried out after his death.

• Karbaat reportedly admitted to having fathered 60 children while at the clinic .

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Dr. Jan Karbaat

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CNN - Indiana fertility doctor used his own sperm 'around 50 times,’ - Sept 27, 2016

After one woman discovered eight unknown siblings following a commercial DNA test, she investigated and learned that her biological father was her mother's fertility doctor, according to court documents from Marion County, Indiana. Dr. Donald Cline had told his patients he was inseminating them with "fresh sperm" from a medical student or resident.

When contacted on Facebook, Doug Cline told them his father had admitted donating sperm samples to different laboratories over the years.

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Indiana Dr. Cline

• Cline confessed he'd donated his sperm, not through a bank, about 50 times and "admitted to doing wrong by inseminating the women with his own semen, but felt that he was helping women because they really wanted a baby.” He also said he felt pressured into doing what he'd done because he didn't always have access to fresh sperm.

• Cline entered a plea of not guilty to two charges of obstruction of justice.

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Dr. Cline

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Q & A

We’d love to hear from you!

Colleen QuinnLocke & Quinn4928 West Broad StreetP.O. Box 11708Richmond, VA 23230(804) 545-9406quinn@lockequinn.comwww.lockequinn.com

Ellen TrachmanTrachman Law Center, LLC1515 Wynkoop Street, Suite 360Denver, CO 80202(303) 243-5014etrachman@trachmanlawcenter.comwww.trachmanlawcenter.com

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