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Reproductive Legal Update

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

This month’s legal update focuses primarily on a recent decision by the Minnesota Court of Appeals involving a dispute between a traditional surrogate and same-sex male intended parents. New rules regarding hospital visitation created by the federal Department of Health and Human Services in response to an executive memorandum by President Obama will also be examined. The update concludes with an item about same-sex male couples interested in surrogacy in the United Kingdom.

Same-Sex Male Couple and Their Traditional Surrogate

Recently, the Minnesota Court of Appeals decided an interesting dispute between a committed same-sex male couple and their traditional surrogate. The decision is unpublished and only identifies the parties by their initials. The intended parents of the child born from the arrangement are R.W.S. and B.C.F. It is undisputed that R.W.S. is the child’s biological father and B.C.F. is the non-biological intended parent. The traditional surrogate is identified as E.A.G., and the child is identified as A.L.S.

This story began in 2006 when the surrogate, E.A.G., offered her services as a surrogate online. The intended parents responded to her online post and, shortly thereafter, the parties entered into a traditional surrogacy contract. A traditional surrogacy contract is one in which the surrogate is both carrier of the pregnancy and the biological mother. E.A.G. conceived R.W.S.’s biological child through artificial insemination using his sperm and her own egg. A.L.S. was born in July of 2007 and, with E.A.G.’s consent, R.W.S. and B.C.F. took A.L.S. home from the hospital upon the child’s discharge.

The parties contemplated ongoing contact with each other, and E.A.G. visited A.L.S. at the new family’s home. In order to establish B.C.F.’s legal rights to the child, E.A.G. was asked to voluntarily terminate her parental rights and take other steps necessary to assist B.C.F. in adopting A.L.S. E.A.G. refused to cooperate and, on her third visit to the new family’s home, attempted to take the child. The police were called to the scene, and E.A.G. left without the child.

Following this scene, the intended fathers sought to negotiate an open adoption with E.A.G. so she could maintain ongoing contact with the child and still allow B.C.F. to establish his legal parentage. E.A.G. refused to sign any agreement with regard to adoption and sued to establish R.W.S.’s paternity. She alleged that A.L.S. was conceived through sexual intercourse with R.W.S. She sought sole custody of A.L.S. and child support from R.W.S. R.W.S. admitted his paternity and counterclaimed for sole legal and physical custody of the child.

In December 2007, R.W.S. was recognized as the legal father of the child but the legal dispute between the parties continued. Between July 2008 and March 2009, a 10-day bench trial was held during which numerous experts and witnesses testified as to the issues before the court. A court-appointed custody evaluator and guardian ad litem testified that R.W.S.’s sole legal and physical custody of A.L.S. was in the best interests of the child. A psychologist, brought in as an expert witness by R.W.S., testified that psychological tests performed upon E.A.G. reveal that she has problems with authority, anger, inability to accept responsibility and other tendencies that made her less capable of acting in the best interests of A.L.S. At the conclusion of this trial, the court found that E.A.G. was not a legal parent of A.L.S. and declared the nonexistence of a mother-child relationship. Further, the court awarded sole legal and physical custody of the child to R.W.S. and B.C.F. E.A.G. appealed.

Finally, on October 26, 2010, approximately four years after this dispute began, the Minnesota Court of Appeals affirmed the lower court’s findings in part and denied in part. Most significantly, the Court of Appeals agreed with the lower court that the best interests of the child required that R.W.S. maintain permanent legal and physical custody of A.L.S. The evidence presented at trial convinced the Minnesota Court of Appeals, as it did the lower court, that E.A.G. could not provide a good home environment for the child. However, the Court of Appeals concluded that E.A.G. was not an “egg donor” and the act of giving birth to A.L.S. did create a mother-child relationship under Minnesota law. Therefore, the Court of Appeals reversed the lower court’s ruling that E.A.G. was not a legal parent.

Furthermore, the Court of Appeals reversed the lower court’s ruling that B.C.F. was a legal parent of A.L.S. as he lacked any biological connection to the child. The Court of Appeals did not make any determination as to whether the traditional surrogacy agreement between the parties was enforceable.

For intended parents considering having a child through surrogacy, this case highlights the potential dangers of traditional surrogacy. Although E.A.G. did not obtain custody, at the end of the day, she was recognized as a legal mother of the child based on her biological connection to the child and her status as birth mother. In addition, it is always recommended that all parties undergo a psychological evaluation to determine that they are all mentally fit and prepared to engaged in a surrogacy arrangement. It is unclear whether the parties neglected to complete psychological screening here or elected to disregard the psychologist’s findings at the time of screening.

Hospital Standards

On April 15, 2010, President Obama issued a Memorandum which tasked the Department of Health and Human Services with developing standards for hospitals participating in the Medicare and Medicaid programs that would prohibit such hospitals from denying visitation privileges on the basis of race, color, national origin, religion, sex, sexual orientation, gender identity or disability. The new standards were only recently issued. The practical result of these new standards is that hospitals would not be able to deny same-sex partners access to each other in the hospital.

Kathleen Sebelius, Secretary of the Department of Health and Human Services commented on the President’s Memorandum stating, “Basic human rights — such as your ability to choose your own support system in a time of need — must not be checked at the door of America’s hospitals. Today’s rules help give ‘full and equal’ rights to all of us to choose whom we want by our bedside when we are sick and override any objection by a hospital or staffer who may disagree with us for any non-clinical reason.”

Same-Sex Couples in the UK

The London Women’s Clinic was one of the first fertility clinics in the United Kingdom to admit lesbian women for donor insemination a decade ago. More recently, it has started receiving applications from same-sex male couples seeking to have children through surrogacy.

One same-sex male couple has applied for fertility treatment at the clinic, which would enable them to have a child gestated by one partner’s sister. She would act as a traditional surrogate, both providing her egg and carrying the pregnancy for her brother and his partner. The clinic has also received a second application from a same-sex male couple seeking to work with a female colleague who has offered to act as their surrogate.

Until now, gay men in the UK have had to look outside the borders of their home country for the opportunity to have a child through surrogacy. Happily, both couples who applied to the clinic would be legally recognized as parents on a child’s birth certificate.

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