Louisiana Surrogacy Bill and Cases of Interest

June 22 , 2016
by: Peggy Swain, R.N., J.D., Guest Columnist
Orginally published in ASRM News June 2016

Louisiana Surrogacy Bill HB 1102 Passes into Law

The Louisiana legislature passed a bill addressing gestational surrogacy; and Governor John Bel Edwards signed it into law on June 15th. The new law provides for enforceability of gestational carrier agreements, but only if they meet certain requirements. Among other things, the law requires that: the intended parents be a heterosexual, married couple who have undergone a background check and obtained pre-transfer court approval; no donor gametes or embryos are used to form the embryos; and no payment other than reimbursement for actual expenses (including lost wages) may be made to the gestational carrier. While there are provisions requiring ASRM-compliant medical evaluations and mental health counseling, there is no provision requiring a gestational carrier’s independent legal representation (independent legal representation is specifically included in the ASRM recommendations). Further, there is no exception to the reimbursement restrictions that would allow for intended parents to pay legal fees on behalf of the carrier. Payment of any money or other thing of value not expressly permitted may invalidate the enforceability of the agreement and is also declared unlawful. The law goes onto say that anyone involved in such payments may be subject to civil and criminal penalties.
http://www.theneworleansadvocate.com/news/15748245-148/bill-to-enforce-surrogacy-contracts-heads-to-full-louisiana-senate, http://www.cqstatetrack.com/texis/redir?id=5704add5729b and Author’s Chairmanship of AAARTA Legislative Committee
Does v. Does I, Idaho Supreme Court (June 2, 2016)

(2016 Opinion 63) Ada CV-2015-13187; Dkt. No. 43796)

Intended Parents, a married couple from Alaska, contracted with a gestational carrier and her spouse, who are residents of Idaho. The embryo was formed with the intended father’s sperm and a donor egg. Following the birth, the carrier and her husband moved for a declaratory judgment ordering that the intended parents were the legal parents of the child. The trial court refused to issue the judgment. Idaho provides a statutory means to determine parentage (through an adoption, with termination of the carrier’s and husband’s parental rights). Because of this, the court determined that no other means were available to accomplish what was asked in the parentage petition. It also noted that the written surrogacy agreement provisions that purported to contractually end the surrogate’s and her husband’s parental rights and confer parental rights upon the intended parents was void as against the state’s public policy.

In its opinion, the Supreme Court of Idaho held that there was no legal basis for the trial court to have granted the requested judgment, and doing so would have put the court in the position of creating law. “Where the legislature has not seen fit to provide substantive legal ground on which a court can base a requested declaration, then it is outside of the authority of that court to make said declaration, even when it would further the interests of all parties involved (as here).” (Does v. Does I, p. 3) Accordingly, the court ruled the intended parents should have pursued parentage within the “four corners” of established law, that is, through adoption. Many other states have taken different views, and routinely allow such parentage petitions in the context of gestational surrogacy.

Because the holding affirmed the trial court decision, the Idaho Supreme Court indicated/ stated it had no need to consider the issue of whether surrogacy agreements are violative of state public policy.

Pending Cases -  Bulletins and Updates:
Sause v. Schnitzer
(Oregon, Multnomah County Cir. Ct., filed 3/3/16):  A case that ticks all the boxes for a made-for-TV movie is winding its way through the court system in Oregon. Jordan Schnitzer is a 64-year-old, wealthy philanthropist, businessman and fine art collector, who has two daughters from his marriage that ended in 2003. He wanted to have a son. He entered into a written agreement with a woman to provide eggs, and with a gestational surrogate to carry a pregnancy. The “donor”, Cory Sause, was well known to him, as she was, at the time, his girlfriend. Additionally, she is an accomplished business executive and a member of another prominent and powerful Oregon family.  The contract between them specified that he would only take custody of any resultant child if the child was male. When Schnitzer’s son was born via a gestational carrier last year, he immediately filed a petition asking to be declared the sole parent of the child. The order establishing his parental rights to the exclusion of others was issued seven days after the birth. However, the baby’s arrival was also promptly followed by a claim to parentage by Cory Sause.

Schnitzer and Sause used preimplantation genetic diagnosis to identify the male embryos, which, they agreed, would be used to attempt a gestational carrier pregnancy. They also agreed within the contract that Sause could keep the female embryos for her own use, and that Schnitzer would relinquish his rights to them. “Schnitzer hereby relinquishes any claim to or jurisdiction over any female embryos from Sause and any resulting female offspring.” However, the language as to relinquishment of the male embryos by Sause only referenced the embryos, not resulting offspring. Sause claims this demonstrates the parties’ intent to preserve Sause’s parental rights to the child, once born, and she is asking to be listed as the mother on the birth certificate and to have visitation rights to the child. Stay tuned.
Jordan Schnitzer’s Baby Saga, http://corey-law.com/family-law/?p=181 (May 17, 2016)

McQueen-Gadbury v. Gadbury Update As reported in Legally Speaking in March, this disputed embryo disposition case between ex-spouses was appealed to the Missouri Court of Appeals.  The case was argued the first week of June. Those associated with the case expect to have the court’s decision within about four months, although a longer period of consideration would not be surprising in this case of first impression for Missouri. Regardless of the result, it is likely that the matter will be appealed to the Supreme Court of Missouri.
Author’s correspondence with case counsel, June 8, 2016


A column highlighting recent court decisions affecting the assisted reproductive technologies and the families they create, written by Susan L. Crockin, J.D.  

“Legally Speaking: A Column Highlighting Recent Court Decisions Affecting the ARTs and the Families They Create” returns to ASRM amidst extraordinary legal developments impacting the assisted reproductive technologies. The column will appear online monthly in ASRM News, with links to court decisions for those who wish to delve directly into the courts' opinions. There will be guest authors to add expertise and unique perspectives related to significant legal topics. “Legally Speaking®” will continue its commitment to not only report on new and noteworthy court cases but also analyze their potential impact and significance on the practice of ART.  --Susan Crockin, JD

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