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Reproductive Legal Update: April 2009
by Melissa Brisman, Esq.
This month’s legal update contains a hodgepodge of news related to reproductive law both in the U.S. and abroad.
NY Courts Rule against Parents’ Legal Rights to Deceased Son’s Sperm
On March 3, 2009, the First Department Appellate Division of the courts of the State of New York issued a decision holding that the parents of a man who died of cancer cannot obtain legal rights to their son’s donated sperm. The roots of this case date back to mid-1997 when Mark Speranza, then 23 years old, deposited his sperm at Repro Lab, Inc., a tissue bank licensed by the State of New York. Mr. Speranza was an aspiring police officer who was about to undergo treatment for cancer and he was concerned about being able to conceive a child afterward. Mr. Speranza signed an agreement with Repro Lab, Inc. in which he was given several options for how to dispose of the deposited sperm in the event of his death. Mr. Speranza elected, in the event of his death, to have Repro Lab, Inc. destroy all of his deposited sperm.
Mr. Speranza passed away six months later. Mr. Speranza’s parents, Mary and Antonio Speranza, were named administrators of his estate and they contacted Repro Lab, Inc. about the deposited sperm. Mr. and Mrs. Speranza requested that Repro Lab, Inc. refrain from destroying the deposited sperm until the couple researched their legal options. The parents hoped to obtain possession of the deposited sperm and employ a surrogate to carry their son’s biological child. In the meantime, Mr. and Mrs. Speranza paid the storage fees for the deposited sperm.
In 2005, Mr. and Mrs. Speranza contacted Repro Lab, Inc. and were told about Mark’s stated intention that the donated sperm be destroyed in the event of his death. Thereafter, Mr. and Mrs. Speranza initiated a court action seeking a declaration that their son’s estate, which they controlled as administrators, was the rightful owner of the deposited sperm. Mr. and Mrs. Speranza also sought an injunction ordering Repro Lab, Inc. to preserve the deposited sperm pending the outcome of the legal action.
When Mr. Speranza deposited his sperm, he identified himself as a “client depositer” as opposed to a “donor.” A client depositer is an individual who is depositing sperm for his own use and not for the purpose of donating to another. For this reason, Mr. Speranza’s deposited sperm did not undergo the extensive screening and testing that is required on sperm deposited for the purpose of donation. The purpose of this screening and testing is to avoid the transfer of disease through the donated sperm. It was on this basis that the court denied the parents’ motion for an injunction and dismissed the action. On appeal this month, the Appellate Division upheld the lower court’s decision. The Appellate Division wrote, “[T]he proposed use of Mark’s semen would fundamentally violate 10 NYCRR 52-8.6(g), which requires that a semen donor be ‘fully evaluated and tested’ prior to the use of his semen ‘by a specific recipient, other than his current or active regular sexual partner.’”
Mr. and Mrs. Speranza also sought to reform or terminate their son’s agreement with Repro Lab, Inc. in order to eliminate Repro Lab, Inc.’s obligation to destroy the deposited sperm. The Appellate Division concluded that Mr. Speranza’s agreement with Repro Lab, Inc. showed a clear intention that the deposited sperm be destroyed and that, for that reason, Mr. and Mrs. Speranza could not reform the agreement so that the deposited sperm could be preserved.
GA Bill 169 Amended; Passed in Senate
A bill was introduced in the Georgia State Senate, Senate Bill 169, which prompted opposition by the American Fertility Association and medical professionals in the reproductive field.
Bill 169, as introduced, made null and void any contractual provision identifying in vitro embryos as the property of any party. Furthermore, it stated that no in vitro human embryo shall be intentionally destroyed for any purpose. Bill 169 created limits on the number of embryos that could be transferred to a woman in any single treatment cycle. For instance, a woman under the age of 40 and using her own eggs or embryos created from her own eggs, could not have more than two embryos transferred into her uterus in any treatment cycle. A woman over the age of 40, and using her own eggs or embryos created from her own eggs, could transfer no more than three. Finally, women using donated eggs or adopted embryos could not transfer more than two donated eggs or adopted embryos during any single treatment cycle.
Additionally, Bill 169 stated that persons or entities performing in vitro fertilization must limit the number of in vitro human embryos created in a single cycle to the number of embryos to be transferred in that cycle. In other words, no extra embryos could be cryo-preserved. If they are created, they have to be transferred. The bill also banned all compensation for the donation of egg, sperm, or embryos in the state.
Bill 169 was amended and the provisions discussed above were largely removed. The amended bill was passed by the Senate has now been sent to the House of the Georgia’s General Assembly for consideration.
FBI Investigating Now Defunct SurroGenesis USA in Los Angeles, CA
Clients of the egg donor and surrogacy agency, SurroGenesis USA, received some frightening and potentially devastating news recently. The Michael Charles Independent Financial Holdings Group, an escrow company used by clients of SurroGenesis USA to hold and manage the escrowed funds for their egg donor and surrogacy arrangements, has allegedly closed its office in Los Angeles, California with no warning and with no further information on its whereabouts. It is alleged that the company embezzled more than $2 million from nearly 70 families. As a result, these families may not realize their dreams of having a child and the donors and surrogates who they were working with may not receive any of the compensation that they were to receive by contract.
The actions of the Michael Charles group have cast suspicion on SurroGenesis USA. Andrew Vorzimer, a Managing Partner at Vorzimer Masserman Law Firm in Los Angeles, and other attorneys, suspect that the Michael Charles group and SurroGenesis USA were intertwined and that the two entities were part of an elaborate scheme to defraud their clients. These suspicions are based, at least in part, on the fact that Tonya Collins, the Chief Executive Officer of SurroGenesis USA, is allegedly listed as the Michael Charles group’s agent for service of process. Vorzimer also points to the fact that SurroGenesis USA had only eight employees who, he argues, are not nearly enough to staff the number of locations that SurroGenesis USA claimed to have been operating. Vorzimer performed some investigation into the locations listed on SurroGenesis USA’s website and asserts that these are nothing but false addresses, post office boxes, or the addresses of retirement homes and other facilities.
The Federal Bureau of Investigation is looking into the situation.
World’s Oldest Mother – at 70 - in India
The residents of a small Indian village named Alewa claim that the town is home to the world’s oldest new mother. Approximately two months ago, a 70-year-old woman named Rajo Devi Lohan gave birth to her baby girl, Naveen Lohan. Rajo Devi Lohan and her husband Baba Ram, currently seventy-two years old, entered into an arranged marriage in 1950. For the next fifteen years, the couple tried unsuccessfully to have a child.
Although IVF arrived in India thirty years ago, the couple was not aware of IVF as an option until a neighbor told them about a sixty year old woman, living only twenty-five miles away from Alewa, who had twins through IVF. Rajo Devi Lohan and Baba Ram met with the sixty year old woman and her family and decided to try IVF. In order to finance the infertility treatments, Rajo Devi Lohan and Baba Ram sold two buffalos, took a government loan, and mortgaged their rice, wheat and sugar-cane crops. Fortunately, they only had to travel thirty miles to the nearest big town to find a doctor willing to treat them. They bought an egg from an egg donor and used Baba Ram’s sperm.
There are no regulations in place in India at present which would limit the ability of a couple of Rajo Devi Lohan’s and Bab Ram’s ages to undergo infertility treatments. The residents of Alewa consider Naveen to be a “miracle” baby and the happy parents of the newborn Naveen are considering repeating the treatments in an effort to have a second child, a son to carry on the family’s name.
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 email@example.com and www.reproductivelawyer.com.
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 firstname.lastname@example.org.