Court Rulings in Two Sperm Bank Lawsuits and other Legal News

September 12 , 2016
by: Susan L. Crockin, J.D.
Orginally published in ASRM News September 2016

Court Rulings in Two Sperm Bank Lawsuits

Illinois Sperm Bank Mix-Up State Lawsuit Dismissed, Mother Refiles in Federal Court 

In July, an Illinois state court dismissed an Ohio woman’s lawsuit against Midwest Sperm Bank, which allegedly mistakenly provided her with sperm from Donor 380, not Donor 330. The former donor is African American; the latter is Caucasian. The mother, Jennifer Cramblett is Caucasian and after giving birth to a biracial daughter, sued for the costs of counseling, relocating to a more diverse area, and other damages. After the state court indicated the case could not proceed as a “wrongful birth” claim, Cramblett refiled the cases as a negligence claim, but the court also dismissed many of those counts.  After a number of procedural and deadline issues, the court granted the sperm bank’s motion to dismiss the state case. Prior to the state lawsuit being dismissed, Cramblett filed a new suit in federal court which is ongoing.

In the federal suit, Cramblett has claimed the sperm bank’s alleged error in shipping the wrong sperm constitutes fraud, negligence and breach of warranty. [Int’l NY Times, July 20216]

Mother Drops Child Support Case Against Man Who was Both Former Intimate Partner and Donor 

A Chicago woman has dropped her attempt to get child support from a man who was both a sexually intimate partner and a contractually agreed upon sperm donor during the same time period.  The state had initially assisted Karina Dahlen with her claim, not having been told about the sperm donor contract. She ultimately dropped her case for support against Szmitry Slizhou after the court ordered the parties to share the cost of an expert to determine if the twins were conceived naturally – and thus have rights to child support, or through IVF- and thus not entitled to support under Illinois law in which a donor who donates through a licensed physician is not treated as a legal father.  Within the sperm donor contract, which the mother reportedly downloaded from the internet, the parties agreed Slizhou would be a donor with no parental role or responsibilities for any resulting child. The case reflects the complexities and nuances of establishing legal parentage and non-parentage when personal relationships and donation are intermingled. (Law Bulletin, Sept., 2016)

India: Draft Law to End Commercial, International Surrogacy Proposed 

New draft legislation in India is pending that is intended to close that country to international and commercial surrogacy. The proposed law would deny surrogacy to all but Indian infertile couples who have been married more than five years, and their close relatives who offer to be gestational surrogates on their behalf. The law would rule out unmarried intended parents, whether single or in same or different sex relationships, as well as paid surrogacy.

The law would be a significant about-face for a country that has long promoted itself as an available and relatively inexpensive destination for international surrogacy, which has grown into a multi-million-dollar business in that country with more than 2,000 fertility clinics reportedly operating in the country.  Gestational surrogacy in India, including payments to Indian gestational surrogates (estimated at $5,000 -7,000 v. $25,000 and more in the U.S.), is typically a fraction of those costs and fees in the U.S.

The proposed law includes penalties up to five years in jail and fines up to approximately $15,000. The proposal has both passionate supporters within India, who have long argued poor women have been exploited, and vocal opponents, who argue it has provided financial security and opportunity for many Indian women and their families. India has proposed other draft surrogacy restrictions in the past; this current draft law has reportedly been approved by the country’s Cabinet and is due for debate in Parliament before year’s end. [various, including CNN Money, August 25, 2016]

In Brief:  Landmark New York Co-Parent Decision Overturns Longstanding Law in that State 

A landmark ruling in New York reverses a decades-long law first established in 1991 in the case known as “Alison D” which had disallowed a same-sex partner from claiming any form of parental status after a break-up. Lawyers involved in the recent reversal will guest author next month’s Legally Speaking column and explain in detail the litigation and its impact for New York and potentially beyond. The combined cases are: Matter of Brooke S.B. v. Elizabeth C.C. and Matter of Estrellita A. v. Jennifer D. 

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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