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Know Your Reproductive Rights: Legal Update, March 2009

by Melissa Brisman, Esq., March 5, 2009

Developments related to reproductive law this month remind us that reproductive issues are being discussed and debated around the globe.

Missouri Follows Global Trends in Donor Disclosure

Anonymous egg and sperm donation has come under increased scrutiny in Europe, and the pressure is building both in Canada and in the U.S. to limit the anonymity that donors have come to expect. Over the past 20 years, many countries including Sweden, Australia, New Zealand, Great Britain, Holland, Norway, and Austria have passed some kind of legislation either regulating or forbidding anonymous sperm donation. In several of these countries, children born from donated sperm or donated ova now have the ability to obtain identifying information about their donor parent once the children reach majority.

Central to this debate is achieving the right balance between the right of a donor to preserve his or her anonymity and an individual’s right to discover his or her parentage. This conflict is exemplified by a Canadian class action lawsuit. In October of 2008, a class action lawsuit was filed against the Attorney General of British Columbia, Canada and the College of Physicians and Surgeons of British Columbia on behalf of all people in the province who were conceived via anonymous sperm, egg, and embryo donation. The goal of the plaintiffs is the immediate, ultimate, and permanent protection and preservation of all files related to the donation process so that plaintiffs may have access to the information in the future. Current legal requirements in the province require clinics to preserve these files for a six-year period from the last contact with the recipient of the donated materials.

Finally, in the U.S., a bill was recently introduced in the Missouri House of Representatives which is intended to allow an adult individual born as a result of a sperm or egg donation to obtain the donor’s identifying information by requiring the name of the donor to be shown on the child’s birth certificate. However, the description of the bill notes that the purpose is not to create a legal relationship between the child and the donor. If this bill becomes law, children born in Missouri as a result of a sperm or egg donation made after January 1, 2010, can receive a copy of their original birth certificates with the donors’ identifying information, as well as medical history information from the State Registrar and the donation facility.

Surrogacy in India: Changes on the Horizon

With the recent economic troubles in the U.S., and people increasingly concerned about saving rather than spending, it is not surprising that intended parents will look for more inexpensive alternatives for achieving parenthood through the use of a surrogate or gestational carrier. To that end, India has become an increasingly popular option for U.S. individuals and couples seeking a gestational carrier arrangement. However, recently, lawyers and doctors in India who are involved in what has become a lucrative fertility industry in that country are warning couples that the absence of Indian law and regulation in this area poses a serious risk. Surrogacy is legal in India and the industry is solely regulated by guidelines issued by the Indian Council of Medical Research. These guidelines now regulate over 3,000 clinics across India and the infertility industry estimated to be worth $500 million annually. Unfortunately, professionals in the fertility industry in India criticize these guidelines as out-dated.

A new Indian surrogacy law is in the process of being drafted. It is anticipated that its passage will create new restrictions on surrogacy arrangements and that these restrictions will affect future intended parents hoping to utilize the services of an Indian gestational carrier. The new surrogacy law may also help prevent the challenges and legal battles now before the Indian courts. For instance, a case is now before a Delhi court involving a Canadian couple and an Indian surrogate who entered into a surrogacy arrangement with the couple and, after birth, decided to keep the child. There was also a well-publicized case in 2008 involving a child born to an Indian surrogate mother who was hired by a Japanese couple. The couple divorced during the pregnancy and a month long legal battle ensued. In the end, the Indian court allowed the Japanese father and his mother, the child’s 74-year-old grandmother, to take the child home to Japan.

As a result of these court actions and efforts to pass a new Indian surrogacy law, circumstances for intended parents using an Indian gestational carrier may change rapidly. Any intended parents in the U.S. interested in this option should closely consider all of the potential pitfalls of trying to conceive a child abroad.

Unauthorized Adoption in Missouri

Back in the U. S., a Missouri woman, Denise Novotny, has been charged with felony child abduction and unauthorized adoption. The criminal complaint filed on February 19, 2009, more than four years after the birth of the child, alleges that a Wisconsin couple, a Mr. and Mrs. Schmidt, sold their daughter to Ms. Novotny for $6,000. According to the complaint, the Schmidts contacted Ms. Novotny shortly after they discovered the pregnancy. It is unclear how they knew that Ms. Novotny was seeking a child. The Schmidts and Novotny entered into a surrogacy contract in order to disguise the transaction. Ms. Novotny was at the hospital for the birth of the child in December of 2004 and, when the child was discharged, the Schmidts handed the child over to her outside of the hospital. Ms. Novotny has not officially adopted the child or filed for a Wisconsin birth certificate.

The criminal charges were filed against Ms. Novotny by county authorities in Wisconsin. It is unclear whether the Schmidts will face charges. It does not appear that the authorities are seeking the return of the child to Wisconsin or the Schmidts.


Melissa B. Brisman is an attorney who practices exclusively in the field of reproductive law and is considered by her peers to be a leader in her profession. Ms. Brisman’s experience and qualifications are unparalleled. She employs an experienced and qualified staff of legal professionals and is licensed to practice law in Massachusetts, New Jersey, New York and Pennsylvania. Ms. Brisman has a practice, Melissa B. Brisman, Esq., LLC, located in Park Ridge, New Jersey, offering a full range of services, including matching carriers with intended parents. Melissa Brisman can be reached at and

Lauren Cuozzo is an attorney licensed to practice in New York and New Jersey. She is an associate at the firm, Melissa B. Brisman, Esq., LLC, and focuses her practice solely on transactional and litigation work associated with reproductive law. Ms. Cuozzo can be reached at

The Growing Donor Disclosure Trend

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