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Reproductive Legal Update: May 2009

by Melissa Brisman, Esq., May 2009

So much has transpired in the world of reproductive law this month. Two court decisions came down dealing with a woman’s right to harvest the sperm of a deceased relative: one brought by a woman who lost her fiancé and the father of her two-year old child; the other by a mother who wanted to preserve a piece of her 21-year-old son. In other news, an Indiana court reversed an order of adoption granted in 2006 to a New Jersey resident over his adoptive twin sons. Finally, New Mexico has enacted, and Georgia is one step closer to enacting, new laws protecting of donors and recipients.

New York and Texas Courts Allow Sperm to be Harvested from Deceased

In the Bronx, a woman named Gisela Marrero sought and obtained a court order allowing her to direct a sperm bank to retrieve sperm from her deceased fiancé. The fiancé, Johnny Quintana, died unexpectedly of a heart attack at the age of 31. The unmarried couple already had a 2-year-old son together. According to Ms. Marrero, just the day before his death, Mr. Quintana and Ms. Marrero discussed the future and their mutual desire to have more children. Generally speaking, usable sperm can only be retrieved from a deceased person within 24 or 36 hours of that person’s death unless the body is cooled to an appropriate temperature. Ms. Marrero obtained her court order with only four hours to spare.

In a somewhat similar case in Texas, a woman successfully sued to preserve the body of her son for sperm extraction. The son, Nikolas Colton Evans, was 21-years-old when he died after being attacked outside an Austin, TX bar. When her son passed away, the grieving mother, Marissa Evans, sought to preserve his sperm for future use, but hospital officials and representatives from an organ donation agency refused to perform the extraction. The grieving mother brought an action in court to preserve her son’s body long enough so that a specialist could obtain useable sperm.

Marissa Evans testified that her son had always dreamed of having three sons and had already selected their names – Hunter, Tod and Van. She wanted the opportunity to preserve a piece of her son and to create grandchildren using his sperm and the services of a surrogate. On April 8, 2009, the judge ordered medical examiner’s to maintain the body and allow an expert to collect the sperm.

Adoption Order Reversed in Indiana

The Indiana Supreme Court decided to reverse an order of adoption based on its determination that the trial court had ignored, or excused, necessary legislative safeguards that are in place in Indiana to protect to welfare of adoptive children. The adoptive father is a New Jersey resident and the twin children were born premature in Indianapolis, IN to a gestational carrier from South Carolina. The twin children were conceived from both donated sperm and donated ova. The children were born in early April 2005, the petition for adoption was filed by the adoptive father’s attorney on April 13, and the order of adoption was granted on April 29, 2005.

While the adoption proceedings were pending, employees of the hospital were alarmed by the adoptive father’s statements and behavior. According to the court record, hospital employees reported that the adoptive father showed up at the hospital to visit the children with a bird perched on his person and bird feces on his clothing. He was told that the bird and bird droppings raised the risk of infection for the infants. Hospital employees also reported that the adoptive father planned to drive the premature infants back to New Jersey in his automobile and that he did not have a plan to care for them upon his return home. For all of these reasons, employees of the hospital reported the man to child protective services who then alerted the local court. The local court was separate from the adoption court which was considering the adoptive father’s petition for adoption. On May 2, 2005, days after the adoption was granted by the adoption court, the local court ordered the children into the custody of child protective services.

Advocating for his client and alerted to the investigation by child protective services, the adoptive father’s attorney engaged in several judicial maneuvers in order to preserve his client’s legal rights to the children. Finally, in January 2006, the adoption court held its last hearing and ordered a six-month period of supervision over the placement of the infants with the adoptive father. The local court dismissed the child protective services’ case and decided that consent by child protective services to the adoption was not required.

In its decision to reverse the order of adoption, the Indiana Supreme Court noted a number of factual inconsistencies in the various documents filed by the adoptive father’s attorney. For instance, the adoptive father represented himself as an Indiana resident, but was later found to be a New Jersey resident and his reported Indiana address was identified as a hotel. The adoptive father’s attorney represented that the adoptive father provided genetic material to the twins when, in fact, the twins and the adoptive father did not share any biological connection. Also, the adoptive father’s attorney described the twin children as bi-racial, born of an African-American gestational carrier, despite the fact that the twins were not the carrier’s biological children.

In addition to these inconsistencies, the Indiana Supreme Court noted that important legislative safeguards were either ignored or disregarded. For example, the Indiana General Assembly requires that child protective services consent prior to a child being placed in an adoptive home. Also, both Indiana and New Jersey have entered into the “Interstate Compact on the placement of Children” which requires the New Jersey authorities to investigate the home of adoptive parents in New Jersey and report back to Indiana so that the Indiana authorities are fully informed before releasing an Indiana child into the custody of New Jersey adoptive parents. In this case, when the New Jersey authorities contacted the adoptive father to evaluate his suitability as an adoptive parent, the adoptive father declined to participate stating that he was a resident of Indiana.

It should be noted that the purpose of the court’s reversal was to require compliance with the legal requirements that were ignored. The court has allowed the adoptive father to retain custody while these safeguards are being met.

Protection of Donors and Recipients in New Mexico and Georgia

Two states have been actively involved in discussing and/or enacting laws in the area of reproductive law this month. On April 7, 2009, Governor Bill Richardson of New Mexico signed into law the New Mexico Uniform Parentage Act, with new language which is applicable to parties utilizing the services of donors or carriers through assisted reproduction. This new law should provide greater protection for both donors and intended parents in the state. With regard to surrogacy, the new law states that it neither authorizes nor prohibits an agreement between a woman and the intended parents in which the woman relinquishes all rights as the parent of a child to be conceived by means of assisted reproduction. Furthermore, the law states that should a gestational carrier agreement be found to be unenforceable under some other provisions of New Mexico law, this law shall provide a mechanism – either through an adjudication of maternity or adoption – by which the intended parents can establish a legal parent-child relationship with their child.

The Georgia Assembly sent a bill to that state’s governor on April 14, 2009 entitled the Option of Adoption Act. The bill establishes a legal mechanism by which an embryo donor can relinquish rights to the embryo and the recipient can establish his/her rights to any child born as a result of the embryo donation. In Georgia, where some alarming legislation related to assisted reproduction has been proposed in recent months, this bill represents useful and reasonable movement forward in reproductive law in the state.

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

May 2009 Reproductive Rights Watch

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