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Reproductive Law


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Paid Parenthood

Spring 2012Jacqueline Pfeffer Merrill on why people sell their eggs and sperm

The Near Miracle of Male Infertility Treatment

Winter 2011Jacqueline Pfeffer Merrill on creating infertile fathers

 

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ART in the News

A new test for Down syndrome, frozen embryo laws, and more

October 10, 2008

Symposium: Getting It Right Putting Ethics at the Core of Gamete Donation Practice

September 29, 2008

If you're in the Toronto area, I will be speaking about my latest New Atlantis article, "Donated Generation," at a symposium hosted by the Infertility Network. The event is this Saturday, October 4, 2008, at the Michener Institute. (Map and directions here.)

There will be some great speakers: Olivia Montuschi, co-founder of the Donor Conception Network; Kathleen LaBounty and Karen Clark, two donor-conceived adults; and Eric Schwartzman, a DI-dad.

A brief description of the seminar:

Symposium: Getting It Right – Putting Ethics At The Core Of Gamete Donation Practice
Saturday, October 4, 2008. 9:00am - 5:00pm. Open to all.
Michener Institute, 222 Saint Patrick St., Toronto (near University Ave. & Dundas St.) 

Explore the complex ethical issues of egg and sperm donation from the perspectives of adult offspring, recipients and donors, as well as the LGBT and adoption communities, with input from support group leaders, researchers, ethicists, counsellors and medical professionals. The discussion will focus on the importance of education and support, along with the need for accurate, complete, accessible records, protected against loss or destruction. It will also highlight shortcomings in the current system and the need for more accountability.

Discover the similarities and differences among systems in countries that enable a donor-conceived person to learn their donor’s identity and the challenges posed by the abolition of anonymity. Listen to personal stories from offspring who want to learn more about their genetic kin. Learn how similar past practices in adoption (e.g. secrecy and sealed records) are giving way to openness and information sharing.

Hear up-to-date research on the long term medical and emotional ramifications of egg donation; the expected changes in the United Kingdom following implementation of the new legislation (e.g. provisions for offspring to access information about their half-siblings and donors about their offspring).

To learn more about the conference and to register, see the Infertility Network's website.

ART in the News

Clay Aiken: Gay Dad, Teen Pregnancy Barbie, and More

September 26, 2008

Questions for Robert Terenzio, Repro Attorney

Finding the right attorney, handling conflicts, and more

August 25, 2008 • After a long hiatus, Conceptions is finally back with another interview. This month’s subject is Robert Terenzio, a reproductive law attorney in Orlando, Florida. Robert’s practice, Reproductive Alternatives, specializes in surrogacy arrangements and egg donation. He also helps Sharon LaMothe (a former Conceptions interview subject) run Infertility Answers, an educational clearinghouse for fertility issues. He graduated in 1991 from Quinnipiac College School of Law in Connecticut.

In this interview, we discuss how reproductive law has evolved, statutory differences among states, and why it’s so important to have an attorney.

[Interview edited and condensed by Cheryl Miller.]

How did you become interested in reproductive law? Are there many attorneys working in this field?

RT: Generically, most attorneys get involved because they’ve had some contact with it. A lot of us were adoption lawyers, who may or may not have dealt with infertility issues. I’ve never had an infertility issue, but some years ago I was helping a group of clients put together an infertility company and as I grew to understand more aspects of infertility, I started dismissing more parts of my practice. Now, I just focus on infertility.

In the state of Florida, there’s only about eight of us. Most of them came out of the adoption area, and added this on their practice. Nationally, I seem to run into the same people over and over again.

I’m a science geek. It’s interesting being involved in an area where the technology seemingly changes day to day, and by changing, it affects the way that we as attorneys have to look at how this technology is affecting people.

Is there a typical day in your practice? If so, what is it like?


RT: Thankfully, no there’s not. Part of the day could be wrapping up a blog entry for my website—I’m looking at something coming out of the news and trying to extrapolate and challenge people to think about the future. Part of it is educational—looking at Infertility Answers and seeing what information could be added to the website. The biggest bloc of time is talking to clients and filling in the gaps with what they might have heard from their agencies and their doctors.

The joke is that we all, in our own ways, become psychologists, in trying to create a reasonably stable, predictable framework for people who have lost control of something that most of the population takes for granted.

How do you find clients? What is your client base like, and has it changed over the years?


RT: The majority of my clients are referred either by agencies that I’ve worked with in the past or reproductive endocrinologists. I have a wide range of clients. I’m getting more and more people for the U.K. and the European Union, who are fed up with either waiting or with the rather conservative laws. Instead of waiting for three, five, or seven years, they can come to the U.S. and get a process up and running within months.

I’ve seen an increase over time in singles, be they male or female. For every five single males I’m working with, there might be one single female.

Why is it important to have an attorney?

RT: I think it’s foolhardy to move forward with something important as a child and not feel assured that everyone has been represented by an impartial attorney. Conflicts of interest are not taken well by the courts.

We’ve learned over time and experience, both positive and negative, how to create a larger and larger safety net for intended parents and gestational carriers. The more progressive states have figured this out already and created statutes.

How are laws among states different? Are there advantages to contracting for a surrogate or egg donor in a particular state?

RT: When you have a statutory framework, it removes a lot of the unpredictability in the process that might exist in other states. In Florida, surrogacies and egg donations are based on the intention of the parties—everyone intends for a result to occur. The court can then rely on that intention to give you what you want, for example, a birth certificate with your name on it.

In a non-statutory state—even one where you have a very pro-gestational surrogacy environment like California—you’re dealing more with the best interest of the child as the basis for how the courts are going to look at the relationship between the carrier and the parents. When you’re an intended parent and you’ve spent thousands of dollars, you want as much predictability as possible.

If you don’t like what’s going on where you’re at, you vote with your feet. Here in the state of Florida, we can easily assure our clients that they’re going to walk away with a birth certificate. But if we take a ride into Georgia, where they go with the best interest of the child standard, that child is not guaranteed to end up in your home.

How do you handle tensions betweens intended parents and surrogates/donors?


RT: There’s always tension. I like to say to clients that the relationship over the year is going to wax and wane. Some days everyone is going to be nice to each other, and some days you aren’t even going to want to pick up the phone when you know it’s the other person. No one really worries about that unless it becomes adversarial. If it becomes adversarial, the team approach kicks in: the agency, the doctor’s office, and the attorneys have a role.

What should people look for in a reproductive attorney?


RT: You want to be confident that the person has done this before. I get a lot of, “My uncle did adoptions 20 years ago...” or “My neighbor is a family attorney...” Being down in the trenches—talking to the judges who themselves are learning this stuff, resolving problems that arise in the course of a pregnancy, and going to the conferences—those sorts of things give you the ability as an attorney to do two things. First, it gives you the ability to write up a generic contract. But more importantly, it gives you the ability to anticipate the problems that may arise—either in your state because of the way your laws are set up or between the parties because of divergent personalities.

What’s the best part of being a reproductive attorney?

RT: I think the hallmark of this area of the law—which I’ve not seen anywhere else and just reinvigorates me—you’re able to provide an avenue of hope to people who not too long ago had no hope whatsoever. Unlike most areas of law, this always seems to be a regular win-win situation for everyone. The gestational carriers are doing something they absolutely want to do. The intended parents are walking away with the one thing they couldn’t have but for the interaction of all the other professionals.

The best part of my week is when a client calls and says, “Hey, we’re pregnant. Our due date is such-and-such...” You can hear the gratitude and, more importantly, can actually participate in someone’s joy. 

Two Bits of Good News

June 27, 2008

Here's a welcome development: India is working on legislation to address the recent boom in surrogate motherhood there:

Concerned with an increasing number of foreigners coming to India to rent a womb, the government is planning to come out with regulations to ensure legal and medical rights to surrogate mothers and children born to them.

"We have seen that couples fly to India, persuade a woman here to rent out her womb for money and then they happily take the child to their country. How do they get the child's passport?" an agitated Women and Child Development Minister Renuka Chowdhury told reporters here Wednesday.

...As of now, there is no law on surrogacy in India. There are certain guidelines issued by the Indian Council of Medical Research (ICMR) on surrogacy and Assisted Reproductive Technologies (ART), she said.

For experts, the major concern is the number of young girls opting for surrogacy, which is also affecting the Maternal Mortality Rate (MMR). Thus, issues like the minimum age limit and health conditions that need to be considered will come up for discussion. 

The most premature twins born in Britain just celebrated their first birthday:

Mikey and Gracie Swindell were born dead at 24 weeks.

Medics spent an hour battling to bring the twins — who each weighed 1 pound, 9 ounces — back to life.

[...] "We call them our little miracles," said Lisa Swindell, 28, of Chatham, Kent, who conceived the babies through in-vitro fertilization after she and her husband, Paul, tried to conceive naturally for five years.

More Controversy Over Britain's Donor Anonymity Law

June 27, 2008

The number of treatments with donor sperm has dropped to record lows since Britain banned donor anonymity in 2005, reports the London Daily Mail:

The first official figures since the Government removed anonymity from donors in 2005 show that the number of women treated with donated sperm fell by about 20 per cent from 2,727 in 2005 to 2,107 in 2006.

The number of donor insemination treatment cycles fell by 30 per cent over the same period.

The amount of women offering to donate eggs has also shrunk dramatically.

The article also provides some helpful data on the surpising (albeit small) increase in the number of donors after the 2005 law took effect. The government and donor-conceived activists had pointed to the rise as evidence that anonymity would not hurt the industry. But, it turns out, most of those new donors are 'known donors,' who are looking only to help a friend or relative:

The figures show that the number of sperm donors rose slightly from 259 in 2005 to 307 in 2006.

But that rise is largely down to an increase in the numbers of 'known donors' - friends and relatives that donate for a couple's exclusive use.

Fewer donors are contributing to sperm banks, from which the donation can be used by up to ten women.

That means that although more donors have registered, the shortage of sperm is becoming more acute.

Ten years ago there were no waiting lists for sperm, but now most clinics have a wait of at least two years for sperm treatment, and a similar trend is affecting egg donation.

A year after the law changed on anonymity, two thirds of clinics said their waiting times for sperm treatment had lengthened.

As a result, many more couples are looking abroad for donor sperm. Naomi Anderson, a fertility patient in the U.K., turned to online purveyors in the U.S. after learning about the 1-2 year wait for a donor:

I found two reputable American sites, xytex.com, and fairfaxcryobank.com, and selected a couple of possible donors. But legislation that came into force at the end of January 2007 means that UK women – despite our national sperm drought – now find it almost impossible to import sperm. A licence must be sought from the HFEA, which among other conditions stipulates that the donor must "only [have] received reasonable expenses or reimbursement for loss of earnings'. This is often not the case with the most high profile foreign clinics. You must also argue convincingly why you believe your child should be fathered by someone from that country.

The first time round the application submitted by my clinic was turned down by the HFEA. But an appeal, in which I stressed my husband's North American background, was successful. Those, however, who have no connection with any other country, are caught in what seems to be a tussle between different people's rights.

More on the Canadian Registry

June 25, 2008

Today in the Globe & Mail, three professors are protesting a decision by the Quebec Court of Appeal to nullify parts of the federal Assisted Human Reproduction Act:

The children of assisted reproduction must be the clear priority because they are the most affected for the longest time. The wishes of many are clear: to know their genetic and gestational parents, the truth about their conception and all their parents' current medical status so that they can take preventative measures to protect their own health. Some adults say that, as long as children are well loved, their deliberate separation from all their parents doesn't matter. One child answered, "All the good intentions and love in the world won't change the definition of right and wrong. It won't change how the kids feel."

Children need adult protection. This is why we urge all levels of government to work together to regulate this field. From the perspective of a child of assisted reproduction, inaction is not just unhelpful, it is a dereliction of duty. As you read this, children are being created in Canadian clinics that no longer have regulatory oversight, or even clear legal obligations to make and preserve records that could enlighten people about their genetic and gestational parents' identities and what disease they are likely to inherit.