Defenders examine business side of surrogacy, donors

By Myra Arthur, KSAT.com – February 5, 2015

SAN ANTONIO – The compensation paid to surrogates and donors who help otherwise childless couples conceive is often not set by state or federal law.

Instead, it is left to fertility clinics and surrogacy agencies to determine.

Geography and cost of living influence the pay a surrogate can receive, while the American Society of Reproductive Medicine sets guidelines for how much money a donor should receive.

“I’m often their final hope, their final resource,” said Cori Smelker, who runs Surrogate Angels of San Antonio.

Smelker has given birth to six children as a surrogate and five children of her own.

“A first-time surrogate could get as little at $15,000 or possibly as much as $25,000 to $30,000, depending on the agency and what she’s asking for and the couple she’s carrying for,” she said.

Surrogacy agencies will likely pay more for multiple births or lost wages if the surrogate is employed and must go on bed-rest.

A sperm-donor can make, on average, $4,000 over six months, according to www.beaspermdonor.com.

Compensation for egg-donation can also vary, according to Dr. Summer James, reproductive endocrinology & infertility specialist at Texas Fertility Center.

“Per ASRM guidelines, somewhere around $5,000 to $10,000,” James said. “We tend to offer egg-donors between $5,000 and $6,000 in our program.”

Most clinics self-govern, James said, by following the guidelines of the ASRM, which also sets guidelines on who can donate and how donors should be screened and selected.

The FDA has its own regulations.

ASRM recommends a woman not donate eggs more than six times.

James says violating ASRM guidelines doesn’t always come with a penalty, but such were the circumstances in the infamous “Octomom” case.

Dr. Randal Robinson, reproductive endocrinologist and infertility specialist at UT Medicine San Antonio, agrees that the majority of fertility clinics follow the same guidelines.

“I think that’s the thing we always have the concern about is to make sure we’re not inducing people that really don’t have that altruistic spirit,” Robinson said. “I think that, if anything, clinics are probably more conservative and follow the rules to an ever greater degree because of the concern that if something unusual happened, what negative publicity that would provide to the specialty and the clinic itself.”

The majority of donors contribute eggs anonymously, Robinson added.

“I really feel like its regulated well. It’s working medically. It’s working legally,” James said.

Those within the fertility field believe it is unlikely one could make a living off of the compensation surrogates or donors receive.

“The compensation is really going to be for time off work, for discomfort, for the surgical procedure she will have to undergo to have eggs removed,” said James.

Click here to read the entire article.

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U.K. Parliament approves controversial three-parent mitochondrial gene therapy

ScienceMag.org By Gretchen Vogel Erik Stokstad – February 3, 2015

The United Kingdom’s House of Commons voted overwhelmingly today to allow British researchers to pursue a new fertility treatment that could prevent certain kinds of genetic diseases. The technique, called mitochondrial DNA replacement therapy, could allow women who carry disease-causing mutations in their mitochondrial genes to give birth to genetically related children free of mitochondrial disease.

The measure, which passed 382 to 128, has been controversial, especially because it would alter the DNA of an embryo in a way that could be passed on to future generations. Some scientists and nongovernmental organizations have argued that not enough is known about possible side effects of the technique to go forward in human patients. “We believe the House of Commons has made a serious mistake, which we hope does not have dire consequences,” said Marcy Darnovsky, executive director of the Center for Genetics and Society in Berkeley, California, in a statement.

Proponents of the measure quickly began to celebrate. “I am delighted that [members of Parliament] have voted to allow the introduction of mitochondrial transfer techniques into the clinic,” said John Tooke, president of the Academy of Medical Sciences in London, in a statement. Robert Meadowcroft, head of the Muscular Dystrophy Campaign in London, added: “We have finally reached a milestone in giving women an invaluable choice, the choice to become a mother without fear of passing on a lifetime under the shadow of mitochondrial disease to their child.”

Mitochondria are the energy-producing engines of a cell. These organelles contain their own set of genes, called mtDNA. When mitochondria don’t work properly, a variety of symptoms can result, which can make mitochondrial diseases difficult to recognize and diagnose. Some babies born with defective mitochondria die within months. Other people don’t show any symptoms until much later in life.

Researchers have developed ways to transfer the genetic material from an egg cell that carries faulty mitochondria into a donor egg that has healthy mitochondria. The resulting embryo carries nuclear DNA from the mother and father and mitochondrial DNA from the egg donor.

Click here to read the entire article.

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European Court of Human Rights Decision Re: Italian Couple’s Surrogacy Arrangement

January 27, 2015 – From the Press release of the European Court of Human Rights Re: Paradiso and Campanelli v. Italy

In today’s Chamber judgment1 in the case of Paradiso and Campanelli v. Italy (application no. 25358/12) the European Court of Human Rights held, by a majority, that there had been:

a violation of Article 8 (right to respect for private and family life) of the European Convention on Human Rights.

The case concerned the placement in social-service care of a nine-month-old child who had been born in Russia following a gestational surrogacy contract entered into by a couple; it subsequently transpired that they had no biological relationship with the child.

The Court found in particular that the public-policy considerations underlying Italian authorities’ decisions – finding that the applicants had attempted to circumvent the prohibition in Italy on using surrogacy arrangements and the rules governing international adoption – could not take precedence over the best interests of the child, in spite of the absence of any biological relationship and the short period during which the applicants had cared for him. Reiterating that the removal of a child from the family setting was an extreme measure that could be justified only in the event of immediate danger to that child, the Court considered that, in the present case, the conditions justifying a removal had not been met.

However, the Court’s conclusions were not to be understood as obliging the Italian State to return the child to the applicants, as he had undoubtedly developed emotional ties with the foster family with whom he had been living since 2013.

Principal facts

The applicants, Ms Donatina Paradiso and Mr Giovanni Campanelli, are Italian nationals who were born in 1967 and 1955 respectively and live in Colletorto (Italy). They are husband and wife.

After unsuccessfully attempting to use in vitro fertilisation Ms Paradiso and Mr Campanelli opted for a gestational surrogacy arrangement to become parents. For that purpose they entered into an agreement with the company Rosjurconsulting in Russia. A surrogate mother was found and given in vitro fertilisation and a baby was born on 27 February 2011 in Moscow. In accordance with Russian law, Ms Paradiso and Mr Campanelli were registered as the baby’s parents, without any indication that the child had been born through a surrogacy arrangement.

In April 2011 the Italian Consulate in Moscow delivered documents allowing the child to leave for Italy. A few days after their arrival in Italy, Mr Campanelli unsuccessfully asked the municipal authority of Colletorto to register the birth. The Italian Consulate in Moscow informed the Campobasso Minors Court, the Ministry of Foreign Affairs and the Collerorto municipality that the file on the child’s birth contained false information.

On 5 May 2011 Ms Paradiso and Mr Campanelli were charged with “misrepresentation of civil status”, and violation of the adoption legislation, in that they had brought the child to Italy in breach of Italian and international law and without complying with the authorisation to adoption obtained by them in December 2006, which ruled out the adoption of such a young child. On the same date the public prosecutor at the Campobasso Minors Court requested the opening of proceedings to free the child for adoption, since, for the purposes of Italian law, he had been abandoned.

In August 2011 a DNA test revealed that Mr Campanelli was not the child’s biological father. Gametes from other sources must have been used in the course of the fertilisation procedure. In consequence, the minors court decided on 20 October 2011 that the child should be removed immediately from the applicants and placed under guardianship, on the ground that there was no biological relationship between them and that there existed doubts as to the applicants’ child-raising and emotional capacities, the conduct of Ms Paradiso and Mr Campanelli having been contrary to the law. The baby was placed in a children’s home, without Ms Paradiso and Mr Campanelli being informed of his location or allowed any contact, then in January 2013 the baby was entrusted to foster parents. In addition, he was left without a formal identity.

In April 2013 the refusal to register the Russian birth certificate was confirmed on the ground that its registration would be contrary to public policy, given that the certificate was inaccurate, there being no biological relationship between the child and the applicants. The latter unsuccessfully submitted that they had acted in good faith, and claimed to have been unaware that Mr Campanelli’s seminal fluid had not been used in the Russian clinic.

In April 2013 the child received a new identity, and it was indicated in the new birth certificate that he had been born to unknown parents. On 5 June 2013 the minors court declared that the applicants no longer had the capacity to act in the adoption procedure initiated by them, given that they were neither the parents nor relatives of the child.

Complaints, procedure and composition of the Court

Relying on Article 8 (right to respect for private and family life), the applicants complained, in particular, about the child’s removal from them, and about the refusal to acknowledge the parent- child relationship established abroad by registering the child’s birth certificate in Italy.

The application was lodged with the European Court of Human Rights on 27 April 2012. Judgment was given by a Chamber of seven judges, composed as follows:

Işıl Karakaş (Turkey), President, Guido Raimondi (Italy), András Sajó (Hungary), Nebojša Vučinić (Montenegro), Helen Keller (Switzerland), Egidijus Kūris (Lithuania), Robert Spano (Iceland), and also Stanley Naismith, Section Registrar. Decision of the Court

Article 8

The Court dismissed at the outset the applicants’ complaint submitted in the child’s name, finding that they did not have standing to act on his behalf. It also dismissed, for failure to exhaust domestic remedies, the complaint submitted by Ms Paradiso and Mr Campanelli alleging that it was impossible to have the child’s birth certificate registered in Italy, as the applicants had not appealed on points of law.

With regard to the complaint concerning the child’s removal and placement under guardianship, the Court, noting the existence of a de facto family life between the couple and the child, held that Article 8 was applicable in this case and declared this complaint admissible. Although Ms Paradiso and Mr Campanelli had spent only six months with the baby, that period had covered important stages in his young life and they had behaved as parents towards him during that period.

As to the merits of the case, the Court considered, firstly, that the measures to remove the child and place him under guardianship amounted to interference in the applicants’ private life and had been in accordance with the law. Indeed, the domestic courts’ application of Italian law in concluding that the child had been abandoned had not been arbitrary, and the measures taken had been based on provisions of domestic law. In addition, the contested measures pursued the legitimate aim of “prevention of disorder”, in so far as the applicants’ conduct had been contrary to the law.

Secondly, in assessing the necessity of this interference in a democratic society, the Court was required to examine whether the application of the national law had struck a fair balance between the public interest and the applicants’ private interests, namely respect for their private and family life. In so doing, it had to have regard to the essential principle according to which, whenever the situation of a child was in issue, the best interests of that child were paramount.

On the issue of whether these interests had been taken into account by the Italian authorities, the Court noted that they had decided to remove the child in order to put an end to an unlawful situation. They had considered that by contacting a Russian agency and then bringing back to Italy a child whom they passed off as their son Ms Paradiso and Mr Campanelli had attempted to circumvent the prohibition in Italy on using surrogacy arrangements and the rules governing international adoption. According to the Italian authorities, that situation resulted from a narcissistic desire or from a wish to resolve problems in their relationship, which cast doubt on their child- raising and emotional capacities.

However, the reference to public order could not be considered as giving carte blanche for any measure, as the State had to take into consideration the best interests of the child, irrespective of the parental relationship, genetic or otherwise. The Court reiterated that the removal of a child from the family setting was an extreme measure, which could be justified only in the event of immediate danger to the child. The threshold set in its case-law in this respect was very high2.

Admittedly, the minors court had taken into account the undoubted harm in removing the child, but had considered, given the short period spent with the applicants and his young age, that he would bounce back from this difficulty. For its part, the Court considered that, although the situation before the Italian courts was a sensitive one, the conditions justifying removal had not been met. The argument that, with time, the child would have developed closer ties with his intended parents, making a possible subsequent separation even more problematic, was not sufficient to justify his removal. Moreover, Ms Paradiso and Mr Campanelli, who had been assessed as fit to adopt in December 2006, when they received the authorisation to adopt, were then held to be incapable of bringing up and loving the child on the sole ground that they had circumvented the adoption legislation, without any expert report being ordered by the courts. In addition, the child had not received his new identity until April 2013, which meant that he had had no official existence for more than two years. Yet it was necessary to ensure that a child was not disadvantaged on account

of the fact that he or she was born to a surrogate mother, beginning with citizenship or identity, which were of crucial importance3.

In consequence, the Court was not persuaded that the authorities had relied on appropriate evidence in deciding to place the child in the care of the social services. Thus, they had failed to strike a fair balance between the interests at stake, in violation of Article 8. This finding of a violation was not to be understood as obliging the Italian State to return the child to the applicants, given that he had undoubtedly developed emotional ties with the foster family with whom he had been living since 2013.

Just satisfaction (Article 41)

The Court held that Italy was to pay the applicants 20,000 euros (EUR) in respect of non-pecuniary damage and EUR 10,000 in respect of costs and expenses.

Separate opinion

Judges Raimondi and Spano expressed a joint partly dissenting opinion, which is annexed to the judgment.

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Lesbian couple wins right to have names on children’s birth certificates

By LAURA KEBEDE Richmond Times-Dispatch Richmond.com – January 25, 2015

When Maria Hayman delivered her twins, Merida and Finn, on June 13, 2013, at St. Francis Medical Center, there was no doubt in her mind as to who the other parent was.

Her wife, Joani Hayman, had contributed eggs that were placed in Maria after being fertilized with sperm from a donor who had revoked his parental rights.

But Joani’s name was not allowed on the children’s birth certificates because egg donors do not have parental rights, according to the Code of Virginia.

But after an 18-month game of wait-and-see as the issue of gay marriage was being settled in Virginia, Richmond Judge Designate T.J. Markow last month ordered the Office of Vital Records in the Virginia Department of Health to amend the birth certificates to show Maria and Joani as the “only parents of the children.”

The Haymans initially contemplated pursuing a custody order, or what their attorney, Colleen Quinn, says was called “LGBT two-parent protocol” in Virginia by lawyers familiar with same-sex couple cases.

Click here to read the entire article.

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Colin Farrell Suggest Gay Couples Make Better Parents

January 21, 2015 – ontopmag.com

Hollywood actor Colin Farrell has suggested that gay and lesbian couples make better parents than their heterosexual counterparts.

Farrell appeared via satellite from Los Angeles on RTE’s Claire Byrne Live to discuss an upcoming referendum on marriage equality in his home country of Ireland.

The 38-year-old actor spoke of the bullying his brother Eamon faced growing up in Ireland and his “incredibly successful” marriage.

“He went to Vancouver and they got married and they’ve been happily married for six years, maybe seven years. They have an incredibly successful marriage,” Farrell said. “And to think they had to leave their own country to do that is sad and disappointing and just grossly unfair, I feel.”

When host Claire Byrne noted that opponents claim that allowing gay couples to marry hurts children, Farrell said it was the other way around, that the children of gay couples suffer when their parents cannot legally marry.

“Without same-sex marriage being legalized … it’s the children that are going to be left in the dark, if there’s a separation. It’s the children who won’t have the equal rights as the children of straight couples who are married. So, the children are actually going to suffer.”

“Guess what? There’s a hell of a lot of unsuccessful marriages between men and women. There’s a hell of a lot of children who have to experience day to day the arguments, the bickering, the domestic violence between their parents.”

“This is a demographic of society – gay, lesbian, transgender – who have been pilloried and who have been ostracized, who have been polarized, excluded for so long that when they get the chance to experience marriage or … parenthood, it has been kept [from] them for so long, and it is a God-given human right, and it’s too easy for heterosexuals to be parents, if you want the truth.”

Click here to read the entire article.

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Germany High Court Paves the Way for Surrogacy

By  Richard B. Vaughn, Esq. – December 20, 2014

Chair, ABA Family Law Section A.R.T. Committee

In a landmark ruling released yesterday, Germanys highest court essentially has paved the way for German intended parents via surrogacy to have their children recognized.

 

In summary:  The decision of the highest court in Germany (Bundesgerichtshof) is a milestone. Mainly it says that both intended parents – also the non-genetic parent – can be recognised as legal parents of the child in Germany. Until now Germany had a very restrictive policy about surrogacy. In some cases even the genetic parent was not recognised as legal parent. The decision marks an important and positive shift.

 

Here is a short breakdown of the ruling:

 

  1. Applicant-appellant in this case was a same sex couple and their child born by a surrogate in California. ‎The Superior Court in Place County had issued a decision holding that appellants were the parents of the child. They petitioned the authorities in Berlin to issue a birth certificate for the child listing appellants as the parents. The officer at the birth register denied that request because the California surrogate was the child’s mother for all purposes under German law.

 

  1. Appellants sought judicial review of this decision but the Berlin courts upheld‎ the officer’s refusal to register appellants as parents. In its decision the Berlin appellate court held that a foreign court order recognizing a surrogacy agreement was null and void in Germany as it was against public policy (ordre public). Accordingly, German law applied and under the Civil Code only the woman giving birth may be registered as the child’s mother.

 

  1. On further appeal, the Federal Supreme Court vacated the Berlin court’s decision and issued a mandate that appellants be registered as legal parents.

 

  1. The Federal Court held that the decision by the California court commands comity and German courts may not, as a rule, second-guess a foreign court’s decision (prohibition against a so-called revision au fond).

 

  1. The presumption of validity under the comity principle may only be overcome if a recognition of the foreign decision led to a result that was entirely irreconcilable with basic principles of German law, especially the bill of rights or basic human rights.

 

  1. Even though Germany prohibits surrogacy, the child born to a surrogate is entitled to have legal parents. The court observed that the child could not influence the circumstances of its birth and a surrogacy background could therefore not be grounds to deny it its legal parents.

 

  1. If the intended parents could not be recognized as legal parents in Germany, the child’s human rights would be infringed. It would have a mother (the surrogate) who is not recognized as the mother in her jurisdiction and who is not prepared to take responsibility for the child.

 

  1. Adoption was not a viable alternative.

 

If anyone is interested in getting the court ruling (which I only have in German), I will be happy to send it to you under separate cover.

 

International Fertility Law Group Inc.

http://www.iflg.net/blog

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Study – Same Sex Couples Divorcing at Lower Rate Than Non-gay Couples

December 10, 2014 – The Williams Institute

A series of analyses based on data gathered from state administrative agencies in early 2014 show patterns of relationship recognition for same-sex couples across the U.S.

The first analysis shows that female couples are more likely to formalize their relationships than male couples. Female couples account for just over half (51%) of all same-sex couples in the U.S. However, data from the state agencies show that 64% of same-sex couples who entered into legal statuses were female couples. Click here for “Relationship Recognition Patterns of Same-Sex Couples by Gender”

The second analysis found that, on average, 1.1% of same-sex couples dissolve their legal relationships each year. This rate is lower than the annual divorce rate for married different-sex couples (2%).  Click here for “Patterns of Relationship Recognition for Same-Sex Couples: Divorce and Terminations”

Click here  to read the entire article.

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Thailand: Commercial Surrogacy Ban Gains Support

New York Times, December 1, 2014

Associated Press – The interim Parliament has given initial approval to a bill banning commercial surrogacy, the practice of hiring a woman to carry a fetus to term, a lawmaker said Friday. Thailand was rocked by surrogacy scandals this year, including the case of an Australian couple who took home a healthy baby girl born from a Thai surrogate mother but left behind her twin brother who had Down syndrome, and a case involving a Japanese man who fathered at least 16 babies with Thai surrogates.

Click here to read the entire article.

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India to have new surrogacy law soon

November 16, 2014 – FirstPost.com

New Delhi, Nov 16 (IANS) Much in the news for all the wrong reasons, surrogacy in India will soon be a regulated sector with the government bringing in a law to govern all aspects of the process like compensation, age and consent of the surrogate mother.

“The final draft bill is now lying with the law ministry and, after being cleared, will be presented before the cabinet for approval,” V.M. Katoch, secretary, department of health research under the health ministry, told IANS.

Surrogacy is a method of reproduction where a woman – the surrogate – agrees to carry a pregnancy to term for a fee.

A study backed by the United Nations in July 2012 estimated that surrogacy is a more than $400 million business a year in India, with over 3,000 fertility clinics across the country.

India now has only the guidelines the Indian Council for Medical Research (ICMR) released in 2002.

In Oct 2008, the Supreme Court ruled that “commercial surrogacy is legal and an industry in India”, making it a legally protected and viable option for international couples.

Named the Assisted Reproductive Technology (Regulation) Bill, 2013, it seeks to address issues like how many pregnancies can be allowed for a surrogate mother, the age of the mother and due compensation to be paid to her.

“The issues addressed in the bill are compensation, informed consent and health of the women involved,” Katoch said.

He said that the bill might also provide a punishment framework for violators.

It has been cleared after rounds of discussions with various ministries and could be passed as early as the winter session of parliament in November-December, said Katoch, who is also the ICMR chief.

The bill will also provide a framework for letting foreigners use Indian surrogate mothers.

Surrogacy in India has always been a controversial subject with activists blaming foreigners for exploiting poor women.

In 2012, an Australian couple left behind one of the twins born to an Indian surrogate mother because they could not afford to bring up two children back home.

Earlier in 2010, a German couple, Jan Balaz and Susan Lohle, had to wait for two years before they could take their twin babies home.

Their twin sons, Nikolas and Leonard, were trapped in a citizenship limbo ever since an Indian surrogate mother gave birth to them in February 2008.

The boys were refused passports by their parents’ homeland because German nationality is determined by the birth mother. The issue was finally settled after a prolonged court battle.

Centre for Social Research Director Ranjana Kumari told IANS: “Surrogate motherhood has grown exponentially in India to become part of a thriving globalized industry.

However, it raises difficult ethical, philosophical and social issues”.

Click here to read the entire article.

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Court Upholds Four States’ Bans on Same-Sex Marriage

New York Times by Erik Ekholm, November 6, 2014

By a 2-to-1 vote, a federal appeals court in Cincinnati upheld the right of states to ban same-sex marriage, overturning lower-court decisions in Kentucky, Michigan, Ohio and Tennessee that had found such restrictions to be unconstitutional.

The long-awaited decision, written by Judge Jeffrey S. Sutton, an appointee of President George W. Bush, ​was the first by an appeals court to uphold a ban on same-sex marriage, contradicting rulings by four other federal circuit courts. The ruling appeared almost certain to force the Supreme Court to decide the same-sex marriage issue for the nation.

“This is the circuit split that will almost surely produce a decision from the Supreme Court, and sooner rather than later,” said Dale Carpenter, a professor of constitutional law at the University of Minnesota. “It’s entirely possible that we could have oral arguments in coming months and a Supreme Court decision by next summer.”

In the decision, by a panel of the United States Court of Appeals for the Sixth Circuit, Judge Sutton said that it appears almost inevitable that American law will allow gay couples to marry, but the more fundamental question, he wrote, is “Who decides?”

Judge Sutton said that such a profound change in the institution of marriage should be decided not by “an intermediate court” like his, but by “the less expedient, but usually reliable, work of the state democratic processes.” He dismissed the reasoning issued in the last year by several other federal courts, which have ruled that barring same-sex marriage violated equal protection or due process clauses of the Constitution and have no rational basis.

n the decision, by a panel of the United States Court of Appeals for the Sixth Circuit, Judge Sutton said that it appears almost inevitable that American law will allow gay couples to marry, but the more fundamental question, he wrote, is “Who decides?”

Judge Sutton said that such a profound change in the institution of marriage should be decided not by “an intermediate court” like his, but by “the less expedient, but usually reliable, work of the state democratic processes.” He dismissed the reasoning issued in the last year by several other federal courts, which have ruled that barring same-sex marriage violated equal protection or due process clauses of the Constitution and have no rational basis.

Michael C. Dorf, a constitutional expert at Cornell Law School, said that “the essence of this opinion is that the issue should be left to the democratic process or to the Supreme Court, but I’m not going to do this as an appeals court judge.”

In a stinging dissent, Judge Martha Craig Daughtrey, an appointee of President Bill Clinton, called the majority opinion “a largely irrelevant discourse on democracy and federalism” that treated the couples involved as “mere abstractions” rather than real people suffering harm because they were denied equal status.

Click here to read the entire article.

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