BABY MAKING 101:

Creating a Family Through Assisted Reproductive Technology (ART)

VIRGINIA HALL, MD, FACOG PROF. JILL ENGLE, DIRECTOR, FAMILY LAW CLINIC
Presentation Prepared by: OutLaw & The Student Health Law Association The Pennsylvania State University Dickinson School of Law

Pathways to Parenthood
Virginia E. Hall, MD, FACOG Associate Professor of Obstetrics and Gynecology Penn State Hershey Medical Center and College of Medicine

Biology and Psychology or Nature and Nurture

! Biology need for male and female gametes and system in which conceptus will grow and mature to adult ! Human beings have long gestation and long period of parental dependence

Usual pathway

! Man and woman have penile-vaginal intercourse and achieve pregnancy ! 38 weeks after coital act (+/- 2 weeks for term) term infant is delivered

Infertility Disease or Inconvenience?

! 7.3 million women and their partners affected in USA

! 1/3 male factor ! 1/3 female factor ! 1/3 combination of factors in both

Infertility and Infecundity

! Unprotected intercourse 2-3 times a week for 1 year without conception in women less than 35 or for 6 months in women who are 35 or older is Infertility ! Inability to maintain pregnancy until viability of infant is Infecundity

Male factor infertility

! 40-50% idiopathic ! Sperm manufacture and delivery ! Chromosomal 47, XXY (Kleinfelters syndrome) and Y deletions ! Cystic fibrosis ! Cartagena's syndrome

Male factor infertility (continued)

! Vasectomy - planned or inadvertent ! Testicular injury and chemotherapy ! Spinal cord injury ! Diabetic neuropathy ! Renal or liver disease ! Obesity ! Varicocele

Male factor infertility (continued)

! Medications
! Chemotherapeutics ! Testosterone and other anabolic steroids ! Corticosteroids ! Illicit drugs ! Tobacco ! Alcohol

! Age

Semen analysis

! Number of sperm ! Morphology ! Motility ! Volume of ejaculate ! White cells, if present ! Liquefaction and pH

Female factor infertility

! 81% identifiable ! Ovulatory disorders 25% ! Endometriosis 16% ! Pelvic adhesions 12% ! Tubal blockage 12% ! Other tubal abnormalities 11% ! Hyperprolactinemia 7% ! Uterine factors (anomalies, fibroids and scarring) ! Cervical factor (LEEP) ! Obesity or underweight

Female factor infertility (continued)

! Ovulatory disorders ! Aging (antiMuellerian hormone) ! Anovulation ! Oligoovulation ! Postchemotherapy ! Postradiation

Female factor infertility (continued)

! Fallopian tube abnormalities and adhesions ! Hydrosalpinges

Female factor infertility (continued)

! Endometriosis
! Anatomic distortion by adhesions ! Damage to ovarian tissue by endometrioma ! Prostaglandins and cytokines interfering with sperm, egg or zygote transport

Immunologic/genetic factors

! Antiphospholipid syndrome ! Chromosomal aneuploidy from translocation and microdeletions

Therapy

! History and exam of both potential parents

! Weight, medications, health, habits

! Semen analysis on male ! Menstrual history ! Infection history ! Tubal patency testing ! ?Laparoscopy

Therapy

! Ovulation induction
! Clomiphene citrate ! Human menopausal gonadotrophins/hCG injections ! Letrozole

Therapy

! IVF (in vitro fertilization) ! ICSI (intracytoplasmic sperm injection) ! Preimplantation genetics

Therapy in special cases

! Adoption ! Surrogate pregnancy ! Donor egg ! Donor sperm ! Donor embryo ! Frozen egg ! Frozen zygote ! Same sex parents

Resources

! American Society for Reproductive Medicine (www.asrm.org) ! ReproductiveFacts.org ! American Congress of Obstetricians and Gynecologists (www.acog.org) ! National Library of Medicine (www.nlm.gov) ! Society for Assisted Reproductive Technology (www.sart.org)

! Thank you for your kind attention! ! Questions?

Obesity

Preimplantation genetics

Egg and sperm

Reproductive options for LGBT families

family should be defined by interpersonal relationships, not by biology.

23 Pa. C.S. Section 4321 (2)

Public mandate of a private family obligation

Elisa B. v. Superior Court (Cal. 2005)

Elisa and Emily are a lesbian couple Each conceives via artificial insemination, and gives birth Emily s pregnancy results in twins Couple breaks up Emily/the state pursue Elisa for child support What is Elisa s defense?
Since she is not legally a parent, she owes no duty of support

" CA domestic partnership statute " CA Uniform Parentage Act

" Allows Paternity by Estoppel

" Same sex parents may adopt; have same rights as spouses

! non-marital dad can be deemed a parent if he holds child out as his

" Case law

! Said Estoppel should apply to women too ! Other cases said lesbian couples can adopt

" Public policy

" Children should have two parents to support them

Some states have strong law and/or policy against recognizing same-sex parentage Many states have not addressed it

 Janice M. v. Margaret K.
Absent a finding of unfitness of natural mom, or exceptional circumstances, former same-sex partner has no right to visitation. Similar results in many states, but not all Consider Jones v. Boring-Jones (Pa. 2006) Primary custody given to non-biological second mother PA Super. Ct rejected the not unless bio parent is unfit standard Said best interests of the child must be primary focus PA Supreme Court denied cert

Legal principles favoring RIGHTS and DUTIES of same-sex parents

 Parties are a former lesbian couple Lived in NYC, married in Canada in 2004 Donna had 2 kids by Artificial Insemination
JR born during relationship but before the marriage

Donna did not let Beth adopt the children but gave them Beth s last name Donna initiates separation Beth files for divorce, Donna moves to dismiss
Beth files for custody & support determinations

Donna files motion to dismiss the divorce case

(NY did not allow same-sex marriages then)

THE court DISagreeS: NY has long recognized outof-state marriages!

Equitable Estoppel
Donna held out Beth as parent to kids & the world Gave kids Beth s last name Told kids to call Beth Mom Accepted Beth s health insurance for the children Put Beth s name on the birth announcements Told both D and B s families to treat Beth as parent Donna MARRIED Beth!

Best Interests
The financial trappings of marriage, which actually apply mostly to Beth in this case, definitely can affect the kids welfare.

 Lesbian couple had two children via artificial insemination with donor sperm The lesbian couple s relationship ended. The custodial mother sued the sperm donor for child support Trial court denied support Super Court OVERTURNS: Finds that sperm donor owes support, even if 2nd mom does too Equitable estoppel
Sperm donor had asserted custodial rights Had also paid money informally to Mom for children

 Physician involvement Written contracts 'Free Sperm Donors' and the Women Who Want Them Newsweek and The Daily Beast

 Surrogacy became more commonplace in the 1970 s

Noel Keane (MI attorney): Surrogacy Arrangements

Baby M case was a media frenzy Surrogate Whitehead changed her mind after birth Natural father Stern & wife (intended parents) sued NJ Supreme court REJECTED Surrogacy Arrangements HELD: Not valid contracts

AFTERMATH: nearly half the states passed surrogacy statutes

Some outlaw it, some regulate it

 As Surrogacy Becomes More Popular, Legal Problems Proliferate - Magazine - ABA Journal

J.F. v. D.B. (Pa. Super. 2006) Not an LBTQ case but instructive. 4 states involved. Gestational surrogacy with hetero couple & surrogate Trial court gave custody to the surrogate Superior Court reversed, surrogate mother lacked standing BUT explicitly refrained from ruling on the validity of surrogacy agreements by stating, That task is for the legislature. A review of the pertinent statutory provisions of these four jurisdictions demonstrates just how contradictory and inadequate is the current state of American law on surrogacy Prof. Robert Rains

GET IT IN WRITING