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Reproductive Legal Update

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by Melissa Brisman, Esq. and Lauren Murray, Esq., November 4, 2010

This month’s legal update begins in Spain where a homosexual couple has been denied the ability to register their twin children born to a California surrogate. This is another case in a string of cases involving homosexuals experiencing legal difficulties in connection with international surrogacy. Next, in China, an American man fell victim to a scam when he wished to have a child through a Chinese surrogate. In recent news, Italy’s strict assisted fertility law is being challenged in the courts. In the United States, on election day, Colorado residents voted on a controversial amendment to the state’s constitution. Lastly, the New York Family Court in Suffolk County has issued a decision of interest to New York individuals and couples interested in gestational surrogacy.

Legal Difficulty for Homosexuals, Surrogacy in Spain

There have been a number of stories recently about homosexuals who used a surrogate from another country and then experienced difficulties returning home with the child. The most recent story involves a married homosexual couple from Valencia, Spain who contracted with a surrogate in Los Angeles, California. It is unclear whether the surrogate was biologically connected to the children. The surrogate gave birth to twins.

The men registered as legal parents of the twins at the Consular Civil Registry in Los Angeles. The Directorate General of Registries and Notaries accepted the men’s registration in February 2009, finding that it met all formal requirements and did not break any international Spanish public order. However, Spain’s Prosecutor’s Office appealed the registration in the Spanish courts and the judge annulled the registration. The Spanish Federation of Lesbians, Gays, Transsexuals and Bisexuals, as well as the two men, describe the Prosecutor’s Office’s actions and the Judge’s decisions as examples of homophobia. The Judge indicates, however, that his decision would have been the same had the intended parents been heterosexual. Under Spanish law, explained the Judge, surrogacy is unlawful and the birth parent is considered to be the legal parent.

Surrogacy Fraud

In China, a man and woman have been convicted of defrauding a homosexual American male who contacted them seeking a Chinese surrogate. This scheme began in 2007 when the Chinese man, Zhu Ze, promised the American intended father that he would help the man locate a Chinese traditional surrogate to conceive and give birth to a Chinese-American baby.

This case does not involve a gestational carrier arrangement, but instead, involves a traditional surrogacy arrangement where the surrogate is biologically related to the child. In this case, the American male would provide his sperm to the surrogate for insemination so she would conceive her own genetic child using her own egg and give that child to the intended, genetic father. The American man paid Zhu Ze approximately $4,500 to locate the surrogate mother.

Zhu Ze then introduced the American to two potential surrogates. One of the surrogates was Zhu Ze’s assistant and the second was a woman Zhu Ze had met in a bar. The American man met the two women, found them qualified, and gave Zhu Ze another $15,000, along with two semen samples to use in the insemination of the women. In 2008, Zhu Ze’s assistant presented the American with a successful pregnancy test and told him that the other woman was pregnant. She asked the American for another $3,900, which he paid. The surrogate’s due date was anticipated for January of 2009, but as the date approached, the American man was unable to contact either Zhu Ze or the assistant. Finally, in April of 2009, the assistant confessed the scheme to the American. The American reported his story to the Chinese police.

A Chinese court has sentenced Zhu Ze and the assistant to nearly 12 years in prison, three years in jail, and four years probation. Together, Zhu Ze and his assistant received nearly $19,000 from the American man during the course of the scheme.

Italy Examines Assisted Fertility Law

In 2003, Italy adopted one of the strictest and most limited assisted fertility laws in Europe. In 2005, Italy held a referendum on the law and, although a majority of the Italian people voted in favor of repealing the law, the quorum required to overturn the law was not reached. Therefore, the law remained valid.

Now, a new threat looms for the survival of the law — Italy’s supreme Constitutional Court may review and possibly overturn the law. This has sparked passionate debate across the country. Supporters of the law are criticizing the Constitutional Court for attempting to overturn the will of the Italian people as expressed by the people’s elected Parliament and the 2005 referendum. In contrast, opponents of the law argue that it was passed on purely ideological grounds in the predominantly Catholic country and does not take the needs of infertile couples and women into account.

The Constitutional Court agreed to examine the law in a case brought by infertile Italian couples who demand access to assisted fertility therapy in their home country rather than being forced to go abroad.

Amendment 62

Back in the United States, residents of Colorado are debated a controversial amendment to their state constitution. The proposed amendment, entitled Amendment 62, would define “person” as used in the Colorado Constitution as “every human being from the beginning of the biological development of the human being.” In essence, if passed, Amendment 62 would grant full legal rights and recognition to embryos and fetuses — arguably human beings in their earliest form.

Amendment 62 failed by a 3 to 1 margin on Nov. 2.

This is not the first time Colorado voters have considered this type of amendment. A similar amendment was proposed and defeated in 2008.

Gestational Surrogacy in New York

Finally, the Family Court of the State of New York, in Suffolk County, issued a decision of interest to New York individuals and couples involved in gestational surrogacy. This case involves a New York couple who contracted with a gestational carrier in California. The arrangement resulted in the birth of twin children in August of 2001. The New York couple obtained a California parentage order recognizing them both as the legal parents of the children.

This particular action in the Family Court of the State of New York arose when the father sought to challenge his support obligations to the twin children arguing that New York should not honor the California parentage order.

Existing New York law prohibits compensated surrogate parenting arrangements and surrogate parenting contracts. The father argued that because New York law and public policy prohibits enforcement of surrogate parenting contracts, the New York Family Court should not honor a California birth order resulting from a surrogate parenting arrangement. The Family Court rejected his argument, holding instead that New York must give full faith and credit to a parentage order granted by a California Court in connection with a surrogate parenting arrangement.

The Family Court noted that both federal and state law hold that a state’s public policy is “not a valid basis to determine that another state’s properly adjudicated judgment should not be afforded full faith and credit” and that there is no “roving” public policy exception to full faith and credit that would allow New York to ignore or invalidate the California Court’s parentage order.

Furthermore, although New York law prohibits enforcement of surrogate parenting contracts, the Family Court was not called upon here to enforce the contract, but instead, enforce a valid parentage order issued by a sister state’s court. In fact, noted the Family Court, existing New York law explicitly contemplates full and fair proceedings to determine parental rights, status and obligations whether in the New York court system or a sister state’s court system. Therefore, giving full faith and credit to the California parentage order, the Family Court found that the father is the legal parent of the children and subject to child support obligations.

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