UPDATES IN MICHIGAN FAMILY LAW

Catholic School Teacher Fired for Attempting IVF

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.

ERISA-based Plan not Required to Pay Surrogate's Birth-related Expenses

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 In an unpublished Michigan appellate decision, the answer is NO.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.

The Two-Minus-One Pregnancy | Modern Family of Choice & Its Ethical Dilemma

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.

As Surrogacy Becomes More Popular, Legal Problems Proliferate

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.

IVF | Inconceivable: A Medical Mistake . . . and Parents' Love

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.

IVF, Designer babies & Single mothers by choice

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.

How many parents may a baby have?

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.

IVF and divorce

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.