The Latest Embryo Fight, And Does Being Single Or Gay Make You Disabled?
The latest developments in assisted reproductive technology ("ART") law.
Update On Latest Embryo Disposition Case. First, I want to update you on the latest embryo disposition case to receive an appellate court judgment. I previously wrote about the fallout happening in the divorce case of Mandy and Drake Rooks. Mandy argued that her ex-husband had promised her a fourth child during their marriage, and that she should be able to use the couples’ stored embryos to have that child on her own. On the other hand, Drake argued that he did not consent to being the genetic father of additional children with his ex-wife (regardless of whether Colorado law would let him escape any legal liability). Drake instead wanted the embryos destroyed. As I predicted, the Court ruled in favor of Mr. Rooks.
The Court followed a popular approach, first announced in a case called Davis v. Davis. The Davis Court looked first to the terms of the contract, and when the contract did not resolve the dispute, it weighed the interests of the parties. In the Rooks’ case, the Court affirmed the trial court’s decision to weigh Drake’s desire not to have another child over Mandy’s desire to have a fourth child. The Court distinguished this case from those few cases where the right to reproduce outweighed the right not to reproduce. The Court noted that in those cases, the party wishing to use the embryos had no genetic children, and the embryos were their only option to have a genetic child. By contrast, the Rooks already had three children together.
The Lesson. One important lesson for women going through IVF is that no matter how happy you may be with your sperm provider (be it your husband, a donor, or other), you should strongly consider having some of your eggs cryopreserved on their own. That is, unfertilized. That way, you can preserve your own right to use those eggs without being subject to the objection of a sperm provider.
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Changing the Definition of Infertility. On a separate topic, the World Health Organization (WHO) is considering changing the definition of “infertility.” The current definition isn’t exactly politically correct: “[A] disease of the reproductive system defined by the failure to achieve a clinical pregnancy after 12 months or more of regular unprotected sexual intercourse.” Basically, WHO would change this language to include just about everyone who cannot have a kid—due to biology, sex, or even the inability to find a partner—for the purposes of defining infertility. The change is important because the WHO sets global health standards and the definition is likely to influence who can have access to infertility treatment.
One of the authors, Dr. David Adamson, lauded the new definition to support and include “the rights of all individuals to have a family, and that includes single men, single women, gay men, and gay women. It fundamentally alters who should be included in this group and who should have access to healthcare.”
Some, however, appear to be offended by the notion that being single could be considered a disability and have expressed concern that the new WHO definition oversteps the body’s authority by moving away from a strictly medical definition. Instead, it puts WHO into the social realm. But for those who support the right of single individuals and same-sex couples to have children, it seems a rather cruel and unusual punishment to require consistent unprotected heterosexual sexual intercourse for 12 months in order to qualify for infertility services. Hopefully WHO’s change will increase access to treatment for those persons requiring medical assistance to have the children they have hoped for.
The New Jersey Case. WHO’s current definition of infertility mirrors some of the language in state statutes. Four women have brought suit challenging New Jersey’s infertility insurance law. The law dictates that an individual can qualify for insurance coverage for infertility treatment only after a demonstration of infertility by a year or two of unprotected intercourse. Of course, the law contemplates heterosexual intercourse. The plaintiffs are women who self-identify as LGBT in the suit, and thus argue that the law unfairly and unconstitutionally discriminates against them.
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In the meantime, legislation has been advanced in the New Jersey State Assembly and Senate to revise the determination of infertility to simply be as determined “by a physician licensed to practice medicine and surgery in this state.” If the proposed legislation passes, the state could take itself out of the equation, removing the imposition on residents’ private lives, and leaving the determination directly in the hands of medical professionals.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning. You can reach her at babies@abovethelaw.com.
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