What I Know, Assume and Imagine…

In the article, “Grade A: The Market for a Yale Woman’s Eggs”, by Jessica Cohen toys with the idea of donating her eggs to a couple who is willing to pay $25,000. The advertisement that Cohen responds to is very detailed in the qualifications of the donating mother. They want an Ivy League girl, who is over five feet five, Jewish heritage, athletics and a minimum SAT score of 1500. In answering this ad Cohen begins research into the world of egg donating. She learns that donating eggs is not an easy process the donor and the women that is to carry the eggs must first get their menstrual cycles to be the same. They usually take birth control pills and then some synthetic hormone shots. The donor is then required to take fertility drugs to enhance her eggs supply then she must come in for blood tests every other day so that the doctor can monitor her. Finally 36 hours before the retrieval day the donor must get a shot of hCG, human chorionic gonadotropin to prepare the eggs for release. After all that the donor is then put under anesthesia and the ten to 20 eggs are extracted from her using a needle.

Cohen points out that infertility is not a new problem however because of technology, people with the right amount of money can have children. About ten percent of all American couples are infertile and the infertility industry is making $2 billion a year off of it.

Cohen begins a correspondence with the husband, David, of the couple who explains their situation. David explains that they are flexible on the criteria but his wife, Michelle, is “a real Nazi” about the looks and health of the donor. Cohen begins to dig deeper into the world of egg donation discovering sites much like ebay where donors and couples seeking eggs can place ads and search under specific criteria. On one website there was a 12 page long application that a donor would have to fill out in order to be able donate eggs.

What amazes me is that people would go to so many lengths to have a child. Before there was this technology people had no choice but to simply accept the fact that they were not able to have children. Now we have created a possibility that with the right amount of money people can design their prefect child. Science has truly amazed us with this technology, the ability to give couples hope when they had none is amazing. Perhaps couples are getting too greedy when trying to obtain the prefect baby. A couple that just wished that could get pregnant but cannot now turn to the idea of egg donor and now all of sudden they are placing requirements on the donor that neither the wife or husband could probably fulfill. It just does not seem quite fare.

With so many people, the mother and father to-be, the egg donor and the sergeant mother, taking part in the birth of a child who child is it really? Many would agree that the couple funding the operation would have the legal rights to the child but in the eyes of the law is this true? What legal troubles are faced when dealing with in vitro fertilization I can only imagine that situations with so many people involved over a child or children would cause some problems because people continually change their mind. What happens when the egg donor mind or the sperm donor or the surrogate mother changes their mind? Do they have a legal right over the child? In custody battles a father must always prove paternity what happens when the child is not genetically the fathers or the mothers? Fertilization has opened new doors to legal problems regarding who has parental rights and who does not.

The Search…

The first successful in vitro fertilization was in the United Kingdom by doctors, Partick Steptoe and Robert Edwards. The baby, Louise Brown was born on July 25, 1978. The first of in vitro fertilization in the United States was in 1981 with the birth of Elizabeth Jordan Carr. Since its success the popularity of in vitro fertilization has exploded, with an estimated one percent of all births now being conceived through in vitro fertilization. There has been around 115,000 babies born using in vitro fertilization in the United States since the first known case (In vitro fertilisation). And with in vitro fertilization success, came a new frontier of legal battles. One of the first legal cases was in January of 1987 in New Jersey. In this case a surrogate mother was genetically related to the child as known as surrogate motherhood refused to give up the child. The surrogate mother had been artificially inseminated with the intended father’s sperm. The courts ruled that the intended parents were to have custody but the because of the biological link the surrogate mother was awarded visitation rights (Donnesha).

Fertilization has complicated things, in a birth of one child there can be up to four different people involved (not including the spouses of the individuals), the sperm donor, the egg donor, the surrogate mother and the intended parents. In California a famous case, Jaycee Buzzanca v. Superior Court, was such a case. In this case a married couple hired, an egg donor, a sperm donor and a surrogate mother. One month before the child was to be born the intended married couple separated and filed for divorce. When the child was born the child was released to the intended mother. The intended mother than took the intended father, her ex-husband now, to court for child support. The intended father argued that the child was not a child of the marriage and therefore was not a finically responsible for the child (Vorzimer). At first the courts ruled in favor of the husband and concluding that the child as “parentless”. The case was appealed and the decision was eventually reverse. The court claimed at the time when the intended father signed the surrogacy contract he has intended to become the father of the child therefore he was legally responsible for the child and is required to pay child support (Donnesha).

Another interesting case involved a same sex couple, two women, who had twins together. The eggs of one partner was fertilized with an anonymous sperm donor and inseminated into the other partner. One partner, K.M., provided the eggs and the other, E.G., was the birthmother. The women for six years raised the twin girls as they were a family, listing both as mothers on the twin’s official forms. However, when the women spilt, the birthmother moved the twins out of state with her. Even though the twins were genetically related to K.M., she was denied custody because when she donated her eggs she signed a form relinquishing her parental rights (Paulson).

In another case in Pennsylvania, there is a battle over triplets between the intended parents, the egg donor and the surrogate mother. After their births the surrogate, Danielle Bimber, mother decided to take the babies home after the intended father, James O. Flynn, who is also the sperm donor, could not provide legal documents that the stated the babies where his. The intended father, who is 62 years old has asked for custody of the babies and plans to raise them with his 60 year old fiancée. Since birth the babies have been taken care of by Bimber and her husband. In another twist the egg donor who is only known as “J.R.” has filed for custody of the triplets. However, she has filed her suit in Ohio where none of parties seeking custody nor were the children conceived there. Up to this point a judge has given Bimber, the surrogate mother, custody but, this decision is far from final (Stack).

In another complicated case where a women, Teresa Brock , and her long-term boyfriend, Micheal Kepl battled over child support payments. Kepl who is married and had a child with his wife, maintained a long term affair with Brock. Several years into their relationship they decided to have a child which eventually turned into in vitro fertilization using Kepl’s sperm. Kepl signed a paternity affidavit at the hospital and even took a out a life-insurance policy naming the boy as the primary beneficiary. He even paid child support. However, in 2001 the relationsip had fallen apart and Brock had given birth to a second child from sperm that had been frozen from Kepl. Shortly, after this Kepl stopped paying child support. In 2002, Brock filed for child-support payments. Kepl claimed he never intended to be a father and that Brock had used his frozen sperm without his consent for the conceiving of the second child. He also claimed he only signed the affidavit because he feared that Brock would expose their affair to his wife. Under the current law in Washington state, a sperm donor must sign an agreement in order to be considered the child’s father. In the case of Kepl he had never signed such a document. The Court of Appeals ruled in favor of Kepl and denied Brock child-support. However, the case was appealed to the Supreme Court, where the decision was reversed. The Supreme Court ruled that when Kepl signed the paternity affidavit he acknowledged his responsibilities as a parent for the first child. As for the matter of the second child the Supreme Court refused to rule, stating that is was not a matter of in vitro fertilization but a matter of artificial insemination (O’ Hagan).

There have even been legal battles over unborn and undeveloped beings. In Kass v. Kass case a couple had their embryos frozen because of their infertility troubles however, the ownership of the embryos became an issue when the couple filed for divorce. The husband wanted the embryos destroyed but the wife disagreed. The courts ruled in favor of the wife because according to Roe v. Wade a woman can make the only decision about what happens to a zygote after it is fertilized (Donnesha).

As the discovery of the legal complications of in vitro fertilization the importance of egg donor and surrogacy contract has arose. These documents need to be carefully written because in many cases this is the document that will determine the custody of the child if there is an issue. The document should include the relinquishing of parental rights in both cases of the egg donor and the surrogate mother. However, this relinquishing of rights does not guarantee that the surrogate and egg donor have waived their rights. In some state the parental rights cannot be waived until the child is born. Contracts also have come to include the intention of each party at the time the contract was signed, financial obligations, medical screenings, psychological screenings and ownership and use of excess eggs. These contracts have become very important documents that to be detailed and well written (Vorzimer). Yet, it is important to know that some states, Arizona, Indiana, Louisiana, Michigan, Nebraska, New York, North Dakota and Tennessee declare surrogacy contracts invalid (Harvins). Some states even make it illegal to pay someone for surrogacy (Weltman).

There is a lack of legislation in the area of egg donations. Sperm donations have occurred for many years and the rights and liabilities of the sperm donor are protected under the Sperm Donor Act. The Sperm Donor Act states that the donor of the semen provided to licensed physician for the intended use in artificial insemination of women, is to be treated as through he is not the father of the child unless the sperm donor is the women’s husband. Some demand that there should a law that is analogous to sperm donor for egg donors so their rights are protected too. An Egg Donor Act would address the relinquishing of the parental rights from the Egg Donor. The closes analogy of this was given in the case of Jaycee Buzzanca when the Appellate Court ruled the child was “parentless”. The court argued that, “We are hard-pressed to think of any reason a women in an analogous situation [to a sperm donor] should be treated differently.” This ruling stated that the egg donor, was not legally responsible for the baby, Jaycee (Vorzimer).

What I Discovered…

It is clear that the laws regarding parental rights and responsibilities were not written for the complications that in vitro fertilization has caused. We cannot even decide how we are going to spell in vitro fertilization or it is invitro fertilization or in vitro fertilisaton. One step at a time first decide how to spell it then decide how to define a what a parent is. Is it biological or is psychological? The definition must be made. When a couple or individual decides to use a surrogate mother or an egg donor, they end up running a risk. It takes nine months from when a zygote is formed to when the baby is full term. As proven by the cases brought before courts, a lot of things can change in that time period. A couple can break-up, the surrogate mother or the egg donor can change her mind. Even after the birth of the child or children people change minds. They no longer want to raise the child or the couple no longer wants to raise the child together. The question that time and time again come before the court is who’s child is it? Its seems simple if the child is biologically linked to an individual then that person has parental rights and responsibilities. But this is not the case always.

It surprised me it is possible for a child to be considered “parentless”. It does not seem quite possible, like “pop” and a child appears and everyone is wondering where it came from. Seems kind of silly, since there is so much planning, money and waiting that goes into a birth of a child. What these cases have proven is that people think since they simply physically have not been involved in the traditional conceiving process, sexual intercourse, then the parental obligations do not apply to them. When people enter into these situations, they stating that they will be parents to this unborn child and they cannot simply change their mind just like a expecting mother just cannot say one day that she no longer wants the baby. It is a agreement that they must stick to.

In the mess of all these cases there is not one clear answer in how the law should respond to situations like these. There are no clear rules or procedure that everyone needs to follow instead there is a complicated mess of people all seeming to be fighting or trying to disown a child or children. Reading about some of these cases I felt like I needed a playbill just to keep track of who was who and what part they played in the connection to the child. These have gotten so complicated that I am not sure that there will ever be on simple answer on how exactly the law should deal with surrogacy and egg donors but perhaps there can be some good defining guidelines that can be followed.

Cohen, Jessica. “Grade A: The Market for a Yale Women’s Eggs” The Presence of Others. Eds. Andrea A. Lunsford and John J. Ruszkiewicz. Boston: Bedford/St. Martin’s, 2004. 191-197.

Donnesha, Brady, et al. “A Look at the Legalities Involved with Surrogacy and Surrogacy Contracts.” http://www.bsos.umd.edu/gvpt/lawonline/journals/spring%201999/law_ online/Surrogacy_Papx.html (April 6, 2006).

Havins, James and James Dalessio. “Reproductive Surrogacy at the Millennium.” http://u1.lvcm.com/whavins/reprosur.htm ( 4 May 2006)

“In vitro fertilization.” Wikipedia, The Free Encyclopedia. 4 May 2006. http://en.wikipedia.org (4 May 2006).

O’Hagan, Maureen. “Support is ordered for in vitro children.” The Seattle Times. 2005. http://seattletimes.nwsource.com/ (2 May 2006).

Paulson, Amanda. “Modern life stretching family law.” "http://www.csmonitor.com/2004/0810/p 01s02-usju.html (April 6, 2006).

Stack, Barbara White. “Egg donor enters battle for custody of triplets.” http://www.post-gazette. com/pg/04189/342889.stm (April 6, 2006).

Vorzimer, Andrew and Lori Shafton. “Legal Issues to Consider When Utilizing Egg Donation” http://www.surrogacy.com/legals/article/liegg.html (April 6, 2006).

Vorzimer, Andrew and Milena O’Hara. “Buzzanca v. Buzzanca: The Ruling and Ramifications.” http://www.surrogacy.com/Articles/news_view.asp?ID =120 (April 6, 2006

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