Surrogacy Litigation Continues to Make Headlines

April 18 , 2016
by: Susan L. Crockin, J.D.
Orginally published in ASRM News April 2016

"Multi-million dollar malpractice verdict against Maryland physician for not reviewing gestational surrogate’s prior medical records"

A jury returned a large verdict in a medical malpractice lawsuit filed against a Maryland IVF physician who did not order medical records of a Pennsylvania gestational surrogate carrier. The suit was brought by the parents of a child who died 21 days after being delivered at 25 weeks due to their gestational carrier’s preeclampsia. She had failed to disclose she had had preeclampsia in her most recent prior pregnancy.  The parents, Andrew and Marni Hotchkiss, from Bethesda Maryland, sued, claiming the doctor was screening prospective gestational carriers on their behalf, that they would have rejected this carrier based on her actual medical history, and that the failure to order and review the gestational carrier’s medical records was malpractice. The gestational carrier, Christina Jensen, had reported having had four previous healthy pregnancies, but failed to disclose she had delivered six children, the most recent of which was delivered prematurely as a resulted of preeclampsia.  The jury’s $44.1 million damage award will be reduced to under $1 million under Maryland law which caps non-economic damages.

The Hotchkiss’s lawsuit claimed that Dr. Sui T. Ng-Wagner’s failure to order and review the gestational surrogate’s prior medical records before accepting her as a surrogate violated the standard of care owed to them. The doctor’s reported defense was that the standard of care was to rely on the woman’s representations and not to further investigate. Experts testified for each side.  Before being reduced, the jury awarded the couple $42 million in damages for the child’s “wrongful death,” and $2.1 million for the child’s “conscious pain and suffering.”

While it is unclear from the malpractice case report whether there were other professionals involved in screening or matching the parties, news reports suggest there were not.  In 2014, after a long investigation, the gestational carrier, Christina Jensen, was also reportedly charged criminally in her home state of Pennsylvania for forgery, theft by deception, receiving stolen property and unlawful use of a computer. According to both court records and published reports, she lied to the intended parents to obtain approximately $4,000 reimbursement, falsely claiming, among other things, that she had retained and previously paid an attorney to draft the surrogacy agreement.

The case should be another cautionary lesson for both professionals and participants in third-party ART arrangements.  It is unlikely that in the absence of a third-party arrangement, any IVF physician would be expected to, or have a duty of care to, question, or require the medical records of, a patient after a self-reported medical history.  To the extent IVF physicians, or other professionals, are expected, or offer, to screen surrogates (or donors) for intended parents, a clearly established standard and duty of care to which they will be held would be protective for all involved.  

"California court orders temporary stay, preventing single father from taking triplets out of state"

An appellate California court has at least temporarily denied a single father of male triplets born to a California gestational surrogate carrier the right to remove the infants from California pending resolution of a lawsuit she filed in that state. The March 30th order is a setback for the father, who in February had been declared the sole legal parent of the triplets. The interrelated cases, previously reported in "Legally Speaking", in February 2016, have been in the news after the carrier, 47-year-old Melissa Cook, came forward while still pregnant claiming the intended father, reportedly a 50-year-old, deaf, postal worker who lives in Georgia with his parents, had asked her to abort one of the fetuses for financial reasons. The father, known in court documents only as CM, and his lawyer, who also co-owns the surrogacy program that matched the parties and coordinated the surrogacy arrangement, have maintained any requests were based on health-related concerns, and the father is prepared to raise all three boys.

Cook claims the father, who had requested only male embryos be implanted, said he could not care for all of the children and rejected her offer to raise one of them. She and her current attorney, an avowed anti-surrogacy attorney who represented traditional surrogate, Mary Beth Whitehead, years ago in her attempt to gain custody of the child she carried in a traditional surrogacy arrangement in New Jersey, are seeking to have California’s surrogacy laws declared unconstitutional. The 75-page agreement, which Cassidy claims Cook did not read carefully, includes a provision agreeing to selective reduction. Cook and her attorney have produced communications from both the father seeking to have her selectively reduce and cut back on her prenatal visits to save money, and letters from his attorney to her former attorney. Various media sources have quoted portions, as alleged in Cook’s complaint, including both a letter from CM’s attorney outlining some of the financial damages Cook may face for violating the contract including extraordinary medical costs of triplets, and a note that: “[t]riplets for a married couple is hard enough. Triplets for a single parent would be excruciating; triplets for a single parent who is deaf is well beyond contemplation.”  Her attorney has also alleged that Cook assumed the surrogacy program had undertaken some investigation into CM’s parenting abilities beyond a criminal record check.  Cook claims she has not been allowed to see or get any information about the children.

With CM having been legally determined to be the sole legal parent, and California long recognized by statute and court cases as a  “surrogacy-friendly” state, it would seem extremely unlikely Cook and her attorney will ultimately succeed either in having those laws declared unconstitutional or giving her custody of any of the children. Nonetheless, the case is highlighting concerns about surrogacy, including multiple embryo transfers, and the screening process and legal protections for both surrogates and intended parents.

"Same-sex unmarried parentage test case argued in Massachusetts"

One of three test cases raising issues as to the legal parent-child status of children born to former, unmarried, same sex couples was argued this month in Massachusetts, Partenan v. Gallagher. The other two cases are pending in Maryland and New York.

In Partenan v. Gallagher, the couple had two children through sperm donation and IVF in Florida, and the children were raised together by them first in Florida and then in Massachusetts until the children were ages three and seven. Partenan, the non-biological, former partner is arguing that her participation in ART treatment, together with raising the children with her former partner, demonstrates her parental commitment, rights and obligations to the children. She and her attorneys argue that her full parental rights should be legally recognized, just as an unmarried biological father’s parental rights and obligations would be.  Her former partner, the biological mother of the children, is arguing that the law does not support an extension of parental status to a non-biological, unmarried partner or former partner.

One of the legal arguments at issue is whether a same-sex couple, who are physiologically unable to have a child genetically related to both of them, may use ART essentially as a proxy for genetics and as evidence of the intent and commitment to become a parent, and that denying a legal child-parent relationship would be tantamount to punishing the child, much as older law used to punish out-of-wedlock children. Recent federal and state laws have been enacted to protect non-marital children, and at issue is whether such protections should extend in these circumstances. The biological mother is arguing that the law does not support full-fledged legal parentage, as opposed to “de facto” or other lesser forms of legal status (and in some cases be dependent on agreement by the biological parent). This author participated in preparing an amicus (“friend of the court”) brief in support of Partenan, the non-biological mother, that was filed by a number of organizations, including the New England Fertility Society, Boston IVF, RESOLVE, and Path2Parenthood. Separate amicus briefs in support of the non-biological mother were filed by others, including a group of law professors and the state’s Attorney General’s office.   The case is being closely watched by legal groups working on post-marriage equality issues for same-sex families.

Partenan v. Gallagher, NO. SJC-12018, ___ Mass___ (filed, pending 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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