It has not been unusual for gay and lesbian couples to arrange privately for surrogacy or for a donation of sperm from a friend or third party in order for a couple to inseminate one of the lesbian partners so that they can bring children into their family. A recent case involving the latter method of procreation may result in lesbian partners being forced to use clinics approved for A.R.T. rather than an informal gift from a friend or acquaintance.
A Kansas man, William Marotta, donated sperm to a lesbian couple after answering a Craigslist ad placed online by Angela Bauer and Jennifer Schreiner. Bauer and Schreiner were seeking a sperm
donor. After exchanging emails and meeting, the three signed an
agreement relieving Marotta of any financial or paternal responsibility. The couple accomplished the artificial insemination themselves using a syringe, and Schreiner eventually became pregnant. Late last year, after she and Bauer broke up, because Kansas does not recognise same-sex marriage, Schreiner, who bore the child, was awarded
sole custody, Bauer was not liable for child support, and Schreiner applied for Title IV-D benefits. So the state
came after Marotta for child support.
Just when you think life could not get any stranger . . . along comes another story that no one could have made up. A Houston mother who gave birth to twins in July 2012 was challenged by a male friend who had convinced her to bear the children using his sperm and donor eggs. The twins were born prematurely. While they were hospitalized, the mother, Cindy Close, was sued by her friend. He claimed that since she had no genetic ties to the infants, they belonged to him and she had no parental rights. There was no written surrogacy agreement. Only then did Close realize that her friend was gay and intended to raise the children with his partner.
I've written quite a bit about non-traditional familes. An opinion piece in today's New York Times made me far more aware about surrogacy issues. This is not something that would ever have occurred to me. I'm not saying it's terrible. To me, it is very thought-provoking in this day and age of increasing numbers of non-traditional families.
In Sunday's New York Times, Susan Straight wrote about her neighbor for whom surrogacy is a way of helping her family pay day-to-day bills. Straight wrote:
Emily Herx, teacher of literature and language at a Catholic school in Indiana, has filed a lawsuit arising from the school's termination of her contract because she and her husband are using IVF in an attempt to conceive a second child. Herx claims that the Catholic school’s monsignor refused to renew her contract and that he referred to her as a "grave immoral sinner."
Her lawsuit claims that the catholic school 's monsignor refused to renew her contract because of her use of in vitro fertilization. Herx said that the monsignorcalled the treatment an "intrinsic evil," which means no circumstances can justify it. After the birth of her first child, Herx had become medically infertile.
Is an ERISA-based employee medical benefit plan required to pay birth-related hospital expenses incurred by a surrogate mother? In an unpublished Michigan appellate decision, the answer is NO.
Facts of the case: Lehr (“surrogate mother”) became pregnant with triplets after being implanted with embryos created by third parties. Spectrum Health Hospital (Spectrum) treated the surrogate mother during her pregnancy. Third-party defendant NGS American, Inc. (NGS), the administrator of the surrogate mother’s employee medical benefit plan, denied coverage for Spectrum’s services.
Ruth Padawer has written a fascinating article, “The Two-Minus-One Pregnancy,” recently published in the New York Times Magazine section. I have to say Padawer literally took my breath away. There are so many questions; the choices are so personal. The reduction of a multiple pregnancy involves ethical, religious, social, moral, emotional and personal dilemmas. Obviously, ultimately, the choice is made by the prospective parents.
The reduction of a pregnancy from twins to a singular child, however, is a procedure only recently available. Padawer writes of young and not-so-young mothers pregnant with twins each of whom chooses, for various reasons, to have reduction in the pregnancy so that she will bear only one child. Most often, this procedure is sought after fertility treatments.
Surrogacy is not legal in Michigan, however laws in many states permit surrogate mothers to carry babies created by ART (assisted reproductive technology) or IVF (in vitro reproduction). Many couples want a child of their own, but for one reason or another, cannot do it on their own. Sean and Carolyn Savage, about whom I wrote the other day, could not use their own remaining embryos after Carolyn had successfully (albeit with great difficulty and cost—emotionally, physically and financially) carried to term another couple’s baby when Carolyn’s fertility doctor implanted the wrong embryos. Carolyn simply could not physically manage another pregnancy. So Sean and Carolyn looked for and found a surrogate who was willing to carry their own embryos. Sadly, two pregnancies miscarried and the Savages were left without an addition to their family of five.
Other couples, LGBTs, also want a child or children of their own. Some lesbian couples can accomplish a pregnancy with one being the birth mother using her own eggs and using donor sperm.
Inconceivable: A Medical Mistake, the Baby We Couldn't Keep, and Our Choice to Deliver the Ultimate Gift is a heartbreaking story about a loving couple, Sean and Carolyn Savage, who had struggled with infertility. They choose to use some of their remaining frozen embryos in an attempt to enlarge their family of three, knowing that if this IVF doesn’t work, they will have to let go of their dreams for a larger family. Imagine Sean and Carolyn’s joy when they learn that Carolyn is pregnant. Inconceivably, they learn at the same time that the fertility clinic has made a mistake and implanted embryos belonging to another couple! Carolyn makes the decision to carry the baby to term, knowing that she will have to relinquish the child at birth to the genetic parents.
Recently, the subject of designer babies came up on a Listserv in which I participate. The topic under discussion was Lesbian couples who have children born using in vitro fertilization (IVF) or sperm donors and the tragedies playing out around the country when these mothers split and the biological mother keeps the non-bio Mom from having contact with the child they've planned and raised together. I opined that there's got to be a way that we can combine genetic material, creating a "designer baby," so that, upon "divorce" both mothers will have an equal claim to custody and parenting time.
The New York Times published an Op-Ed piece near the end of January that's been sitting in my to-do pile. The issue raised is whether a baby can have three (or more) biological parents. Non-traditional families are more prevalent today than ever before. Parenthood may occur in a Lesbian relationship with one partner being the "host" parent (the biological parent who conceives using sperm of a third party). Gay men have also used surrogacy or adoption to form family units with children. The other partner then is the supportive second parent. If a "second parent adoption" is legal, the second parent's parental rights can be protected. Otherwise, there have been serious risks when the parents' relationship sours.
Thanks to Andrea B. Carroll, C.E. Laborde, Jr. Professor of Law, Paul M. Hebert Law Center, LSU writing on the Family Law Prof Blog for the following analysis and commentary concerning surrogacy issues and problems faced by gay and lesbian families seeking to have IVF or surrogacy agreements in order to raise children in their families. Professor Carroll writes:
"Joanna Grossman (Hofstra University School of Law) has recently posted an excellent two-part commentary on whether the Baby M
decision should survive, particularly in the context of a recent New
Jersey case. The case involves two gay men who were legally married.
One of the men provided sperm and a donor egg was used, with the
resulting embryo implanted into the (non-egg donor) surrogate. After
twin girls were born, the surrogate sought a judgment that the
surrogacy agreement she signed relinquishing her rights was a nullity
and that she was entitled to parental rights. The trial court agreed,
resting on Baby M. Grossman argues that Baby M
should be revisited in light of distinctions between its facts and
those in the most recent case and reproductive advancements since the Baby M decision.
Thanks to Andrea B. Carroll, C.E. Laborde, Jr. Professor of Law, Paul M. Hebert Law Center, LSU, writing on the Family Law Profs Blog for a heads up on Professor Mark Strasser's recent article about frozen embryos. Strasser's article "You Take the
Embryos But I Get the House (and the Business): Recent Trends in Awards
Involving Embryos Upon Divorce," 57 Buffalo L. Rev. 1159 (2009). Available at SSRN:
http://ssrn.com/abstract=1478032
An
excerpt:
More and
more couples are delaying starting a family. Because fertility declines with
age, delaying childbirth increases the likelihood that couples will have to make
use of assisted reproductive technologies such as in vitro fertilization (“IVF')
to fulfill their hopes of having children biologically related to at least one
of them. As might be expected in a country with a relatively high divorce rate,
the increased use of IVF has led and will continue to lead to more and more
couples having to decide what to do with remaining frozen embryos upon
dissolution of their marriages.
