by: Susan L. Crockin, J.D.
Orginally published in ASRM News February 2016
Two Triplet Surrogacy Disputes Raise Multi-Embryo Transfer Questions
According to news reports, Melissa Cook, a 48-year-old California gestational surrogate pregnant with triplets has filed a lawsuit challenging the constitutionality of California’s surrogacy laws. Cook, who was matched through a California surrogacy recruiting program, agreed to carry male triplets for a single intended father created with his sperm and eggs from a 20-year-old donor. Cook is due in March. She and the intended father, known as C.M. in the media, have been in the news with dueling accusations by their attorneys after she refused C.M.’s request to selectively reduce to twins. Cook claims the request was based on the inability of the intended father (reportedly a single, 50-year-old, deaf postal worker who lives with his parents in Georgia) to financially support the children. C.M.’s attorney claims the request was made for medical reasons.
Cook, who had reportedly been a surrogate before, was matched with the intended father through Surrogacy International. C.M.’s attorney, Robert Walmsley, who is also part owner of Surrogacy International, has argued it was Cook who insisted on transferring three embryos, and his client, the intended father, who acquiesced. When C.M. requested a selective reduction, as the contract reportedly provided for in the event of multiples, Cook refused. She claims C.M. originally said he’d consider placing one for adoption before deciding to request the selective reduction. Cook offered to raise one of the triplets, an offer C.M. refused. C.M.’s attorney, Robert Walmsley, acknowledges C.M. sought the reduction, but for medical – not financial--- reasons, and says his client wanted twins, but it was Cook who insisted on transferring three embryos, and that his client has accepted the situation and is prepared to raise all three boys. The parties have swapped multiple factual accusations on this and other aspects of the surrogacy arrangement, including whether C.M. stopped prenatal visits for financial reasons, and whether payments provided for in the contract were threatened to stop or were not being made.
Interestingly, the federal lawsuit filed by Cook and her attorneys is against the clerk and officials of the department of public health of Los Angeles, not the intended father or any of the professionals involved in the case. In that lawsuit, Cook reportedly seeks to have her name placed on the children’s birth certificates, and presumably to be deemed their legal mother. One of Cook’s attorneys is Howard Cassidy, an anti-surrogacy advocate who represented New Jersey traditional surrogate, Mary Beth Whitehead in the 1980s.
In her federal lawsuit, Cook and her attorneys claim the state’s surrogacy statute reduces a surrogate to a “breeding animal or incubator.” According to one published report, “Walmsley said that in hindsight C.M. made two mistakes: working with Cook, and ‘capitulating to her urge to transfer three embryos into her womb’”. It is unclear, however, how a multi-embryo transfer could occur without the agreement of both Cook and C.M., as well as their IVF physician. Part of Cook’s federal complaint alleges, "On August 17, 2015, Dr. Jeffrey Steinberg, working at Fertility Institute, in Encino, California, transferred three six-day-old embryos into the uterus of Melissa Cook who would turn 48 years old during her pregnancy…(t)hose embryo transfers made with a 47-year-old woman violated accepted standards of medical practice."
C.M.’s attorneys filed a parentage action in family court, standard in gestational surrogacy cases, shortly after Cook’s attorneys filed a lawsuit in state court similar to her federal case. C.M.’s parentage action was allowed, with the state court ruling he is to be the sole legal parent of the triplets with Cook having no parental rights. After Cook’s state case was dismissed, she had a counterclaim filed in C.M.’s state court parentage action. Her federal lawsuit seeking to invalidate surrogacy in California is also pending. While the dueling accusations and lawsuits make it difficult to ascertain some of the underlying facts surrounding the surrogacy arrangement, with the triplets due next month, there are certain to be more legal maneuverings and developments.
“After Fighting Abortion Demand, Surrogate Mom Demands Custody”; Courthouse News Service; http://www.courthousenews.com/2016/02/04/after-fighting-abortion-demand-surrogate-mom-demands-custody.htm
Second Triplet Surrogacy Dispute Reported in California
A 26-year-old gestational surrogate, Brittneyrose Torres, has reportedly come forward after learning about Melissa Cook’s situation and lawsuits, alleging that she too has been pressured to reduce a triplet pregnancy. Torres reportedly had two embryos transferred, one of which split, resulting in the triplet pregnancy with two identical male fetuses and one female fetus. She claims the intended parents asked her to terminate the female fetus, but had known she would only agree to abort or reduce in a ‘life-and-death” situation. Torres has reportedly also hired Attorney, Howard Cassidy. No further published details are currently available.
Legal Implications of Both Disputes
The two cases are garnering increased publicity and fostering debate over surrogacy arrangements, particularly around multi-fetal pregnancies and decision-making over both embryo transfers and selective reduction. The law as to parentage in surrogacy cases likely favors an intended genetically-related parent, while the law as to control of the pregnancy and decision-making clearly favors the woman who is pregnant.
The U.S. Constitution is clear that any pregnant woman’s right to bodily integrity includes the right to make decisions over whether to continue or terminate, in whole or in part, her pregnancy within certain time frames. This is an accepted principle in the jurisprudence or law of reproductive rights. A number of state courts have also ruled that husbands have no legal right to force their preferences regarding reproductive decisions on their wives, and few, if any, legal scholars would suggest that intended parents in a surrogacy arrangement can do so, notwithstanding any contractual provisions or agreement. Whether any money damages may be had for breach of contract or not is a different question, and may depend on both the terms of any contract and any public policy considerations that would be found applicable. As a separate principle, California, like many states, recognizes that, at least as to intended parents’ full genetically-related child, the intended parents, and not the gestational carrier, should be recognized as the legal parents of any resulting child. A number of courts also have accepted that principle where one or more donor gametes were used, and for single parents, as the court ruled for C.M. C.M.’s attorney represented the intended and ultimately legally recognized, and fully genetically-related, parents in the case that established that precedent in California.
Multiple embryo transfers may be superficially attractive in surrogacy arrangements, with one argument being advanced that the amortized cost per resulting child is a justification when the costs associated with surrogacy are so high. Yet, a 2012 ASRM guideline on elective, single-embryo transfer (eSET) reflects an increasingly clear picture of the risks both of multiple pregnancies and for the resulting children, and the ability to reduce those risks through eSET, in particular with high quality blastocysts created with younger eggs.
These two surrogacy cases raise questions about informed consent and whether the risk of high-order multiples is justified for a population of women who are not intended mothers and where donor egg may be frequently employed. Single embryo transfers could have avoided both of these disputes, and the continuing press and reported litigation unfolding in California have many wondering why that didn’t happen.
Sherri Shepherd Files Second Appeal of Maternity Ruling in Surrogacy Arrangement
Actress Sherri Shepherd is now appealing to the Pennsylvania Supreme Court, asking it to find that two lower courts overstepped in finding and then upholding her status as a legal mother. The child in question was born from surrogacy and donor egg agreements Shepherd and her husband, Lamar Sally, entered into that resulted in a child born to a Pennsylvania gestational surrogate using Sally’s sperm and an anonymous donor’s egg. The Pennsylvania trial court ruled that through Shepherd’s actions and agreements she was the child’s legal mother under Pennsylvania law, and ordered her to pay $4,600 a month for child support. The intermediate appellate court affirmed that ruling.
Shepherd’s ex-husband, Lamar Sally, is now raising the one-year old child alone in California. The child was born in Pennsylvania to Jessica Bartholomew, a divorced mother of two who had agreed to be a gestational surrogate for the former couple. Despite the surrogacy agreement, Shepherd subsequently refused to consent to being legally deemed the mother or having her name appear on the child’s birth certificate, arguing the surrogacy agreement violated Pennsylvania law. She lost both of those points in the lower courts, but has now petitioned the Pennsylvania Supreme Court continuing to argue that state law does not allow legal maternity to be determined based on a contract, but only through adoption law or biology. The Pennsylvania Supreme Court will need to decide if it is willing to hear this further appeal.
Egg Donor Anti-Trust Class Action to Settle, Financial “Caps” Removed
As this column went to press, a settlement was reached in the four-year-old anti-trust federal lawsuit brought as a class action suit by a group of California egg donors against ASRM and SART, and originally a number of IVF clinics. The settlement will be reviewed more fully in subsequent reports, but brings to an end a case that highlighted the tensions between efforts to avoid extreme financial incentives for egg donors and federal anti-trust laws. The plaintiffs, former egg donors, and then future ones, had alleged that donor fee “caps” articulated in an ASRM Ethics Committee report constituted price-fixing in violation of the “Sherman Act”, the federal antitrust laws. Under the reported settlement terms, there was no admission of liability, ASRM will amend its Ethics Committee report to delete all language referencing recommended fees or “caps,” (including, “Total payments to donors in excess of $5,000 require justification; and sums above $10,000 are not appropriate.”) and will not require any clinic or recruiting program to state any limits on dollar amounts for donor services as a condition of membership or inclusion on its website. The named plaintiffs will receive $20,000 in damages and their attorneys $1.5 million in fees and costs.
Kamakahi v. ASRM and SART, USDC. N. CA, Case No. 3:11-CV-1781 JCS
“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