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Legal Update: Landmark Legal Decision and Cases to Watch

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by Melissa Brisman, Esq. and Lauren Murray, Esq., July 12, 2010

This month’s legal update begins in Australia where a court has recently ruled that a prisoner can continue her IVF treatments while incarcerated.

Next, the update returns to the United States where a Wisconsin Court issued a landmark decision regarding surrogacy and insurance coverage. The third item focuses on Israel, where the Health Ministry refuses to release embryos created by a widower and his now-deceased wife for the widower’s use with a gestational carrier. Fourth, the update discusses a French woman who is being denied access to sperm frozen by her now-deceased husband before he underwent chemotherapy. Finally, the update concludes in England where the National Health Service is considering revising the guidelines currently in use for determining access to state-funded infertility treatments.

A Prisoner’s Right to IVF

Incarcerated in a low-security prison in Victoria, Australia, Kimberley Castles, 45 years old, is currently serving an 18-month sentence for welfare fraud. She was undergoing infertility treatments when she entered prison and, upon entering prison, immediately petitioned for permission to continue her treatments. Although Castle has the funds to pay for these infertility treatments, she is currently 45 years old and her clinic will not provide infertility treatments to a patient who is 46 years of age or older. Castle will turn 46 while she is still incarcerated.

Castles’ attorney, Rachel Ball, argued that her client has a human right to reproduce and that this right continues to exist while an individual is incarcerated. In support of her client’s case, Ball noted that conjugal visits are permitted in prisons. In fact, such conjugal visits resulted in the birth of four babies by inmates during the six months immediately preceding Castles’ incarceration. Furthermore, the low security environment of the prison allows children to reside with their incarcerated mothers. Castles’ 2-year-old child currently resides with her in prison. A Supreme Court Judge granted Castles permission to leave prison for her infertility treatments on a visit-by-visit basis. Castles’ attorney was pleased with the win but acknowledged that this decision does not mean that all Victoria prisoners have a right to IVF while incarcerated.

Maternity Coverage for Surrogates

The Supreme Court of Wisconsin recently held that insurance companies in the state cannot deny maternity coverage to female insureds on the basis that the women are acting as surrogates. This case was initiated after MercyCare Insurance Company declined to provide maternity coverage to two Wisconsin surrogates and sought repayment from the women of any maternity claims already paid by the insurer in connection with their pregnancies. MercyCare’s benefits booklet contained an exclusion for “surrogate mother services” and the insurer cited this exclusion as its basis for denying maternity benefits to these women and seeking repayment.

The women appealed to the Commissioner of Insurance who found any surrogacy exclusion contrary to Wisconsin law. MercyCare applied to the Wisconsin circuit court to overturn the Commissioner’s decision. MercyCare was successful at the circuit court level, but the Commissioner appealed to the Wisconsin Supreme Court and won. The Wisconsin Supreme Court gave deference to the Commissioner’s decision, stating “we conclude that an insurer may not make routine maternity services that are generally covered under the policy unavailable to a specific subgroup of insureds, surrogate mothers, based solely on the insured's reasons for becoming pregnant or the method used to achieve pregnancy.”

As a result of this decision, it appears that no woman acting as a surrogate in Wisconsin can be denied coverage for routine maternity services.

Israeli Widower Wants Access to Embryos

In Israel, the Health Ministry is refusing to allow a 40 year old man to use embryos created from his own sperm and his now-deceased wife’s ova to produce their genetic children with the assistance of a gestational carrier. The man, known only as N., and his wife tried for years to create a family together. The couple underwent a series of fertility treatments which resulted in the creation of a number of embryos composed of his sperm and her ova, now cryopreserved at Haifa’s Rambam Medical Center. The wife was diagnosed with cancer and passed away from the disease last year. Before her death, N.’s wife clearly expressed her desire that her husband should use those embryos to conceive their genetic children with the assistance of a gestational carrier even in the event of her death.

When N. initially requested access to the embryos, the Health Ministry conceded that there is no law against giving N. custody of the embryos, however, surrogacy is not available in Israel. It was on this basis that the Health Ministry failed to relinquish custody of the embryos to N. Later, after locating a foreign gestational carrier, N. again sought custody of the embryos. This time the Health Ministry refused to transfer custody of the embryos on the grounds that the embryos did not, in fact, belong to N.

An attorney for N. argues that the Health Ministry’s decision here demonstrates “unacceptable discrimination between the right of a man to parenthood and of the right of a woman to parenthood.” It will be interesting to see if and under what terms the Health Ministry releases the embryos to N.

In France, a widow is in a situation similar to N., as she seeks to conceive the genetic child of her deceased spouse. Fabienne Justel, the widow, married Dominique Justel when he was already very ill with cancer. Concerned that the chemotherapy treatments would render Mr. Justel infertile, the couple elected to freeze his sperm specimens prior to his undergoing the chemotherapy and radiation treatment. He died just three months after their marriage and Justel sought to begin treatments to conceive a child using the frozen sperm. Justel was advised that French law currently outlaws post-mortem inseminations and she could not use the sperm because her husband was not present to consent. Justel claims that the clinic never told the couple that she would not be able to use the frozen sperm if he did not survive. Post-mortem inseminations are permitted in some countries, such as the United States and Belgium, but most countries have no specific laws allowing or banning the procedure. Opponents of post-mortem insemination argue that a child has a right to know its father, and this right is violated when a child is conceived as a result of post-mortem insemination.

Justel was denied a remedy in the French court system where a lower court and the French court of appeals both ruled against her. She now intends to pursue her case before the European Court of Human Rights.

Age Limitations for State-Funded Treatment

The National Health Service (NHS), the UK’s national health care system, is reconsidering the age limitation it placed on access to state-funded infertility treatment. At present, the NHS does not provide free fertility treatments to any woman over the age of 40. This blanket ban is based on the presumption that women over the age of 40 are more likely to have a low ovarian reserve that diminishes the likelihood of conception. Therefore, the NHS does not want to invest its funds in fertility treatments with a low success rate. Instead, the NHS offers free IVF treatment to women between the ages of 23 and 39. The number of free cycles available to women in the country varies based on the regulations of their individual primary care trust, but the age limitation is uniform across the country.

Now, NHS may base eligibility for free fertility treatments on a woman’s actual ovarian reserve, rather than rely on a presumption of diminished reserve due to age. The primary reason for this change seems to be a concern over charges of age discrimination. Critics of the change argue that NHS should not encourage women to have babies in middle age because it puts both mothers and their potential children at risk. Supporters of the change argue that testing for actual ovarian reserve is a fairer means of determining eligibility for free fertility treatments. However, critics argue that doing tests on women to check their ovarian reserve is an expensive means of promoting fairness.

On a related note, a study was recently published exploring why residents of the United Kingdom travel abroad for infertility treatment. As part of the study, 51 people were interviewed and, of those, 71 percent went abroad to seek treatment using donor ova and/or sperm. The study disproves the general assumption that United Kingdom women traveled abroad for fertility treatment because they are too old to obtain treatment at home. The study finds, instead, that the major reasons these individuals seek fertility treatment abroad are the high cost of fertility treatments and the lack of access to donor ova and/or sperm in the country.

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 and administrative 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 Montvale, New Jersey, offering a full range of legal services in connection with gestational carrier arrangements, ovum, sperm, and embryo donation, and adoption. In addition, Ms. Brisman is sole owner of Reproductive Possibilities, LLC, an agency that facilitates gestational carrier arrangements, and Surrogate Fund Management, LLC, a company that manages escrow in connection with reproductive arrangements.

Lauren Murray 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. Murray can be reached at