Family Law

New Assisted Reproductive Law Updates!

Single parents in the UK are rejoicing, while US LGBTQ parents and anonymous sperm donors have concerns…

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Remember How England Discriminated Against Singles Parents? Back in May 2016, a UK court ruled that the Human Fertilisation and Embryology Act (HFEA) violated the European Convention of Human Rights by preventing a single parent from securing parental rights to his child born via surrogacy. In that case, a single father had a child with the help of an anonymous egg donor and US surrogate. But when the new father returned to England with his baby, the most senior judge of the UK’s High Court Family Division ruled that under the HFEA he had no parental responsibility for his child (despite being both the genetic and intended parent of the child) and that the US gestational surrogate (with zero genetic or intended parental interests) was the sole person with parental responsibility for the child under UK law.

However, the judge made clear that his hands were tied and invited the father to seek a human rights declaration to try and prompt a change to the law.  The UK government was joined to the case to give its views, and the judge then made a formal ‘declaration of incompatibility’ with the UK Human Rights Act, one of only 20 ever made.

Declarations of incompatibility create an expectation that the law will be changed but in the UK Parliament is the only one which can actually change the law. Last week, a year and a half after the court ruling, a draft of the corrective law was finally sent to Parliament. Better late than never! At least we are seeing positive progress. See Natalie Gamble’s excellent blog post for more details on the new hope for single parents in the UK. Natalie and her father represented the single father in the case and have been campaigning for surrogacy law reform in the UK for more than 10 years.

Any Update On That Mississippi Court That Ruled An Anonymous Sperm Donor Was A Child’s Father? Yes! Thanks for asking. In fact, that case had oral arguments before the Mississippi Supreme Court last week. As you will recall, Chris Strickland and Kimberly Day, a same-sex female couple married in 2010, conceived a child via anonymous sperm donation.

Day gave birth to the child, and when the couple divorced, Day argued that Strickland should not have any parental rights to the child. The Mississippi lower court agreed. It held that “two women cannot conceive a child together. The court does not find its opinion to be a discriminatory statement but a biological fact.” The court then proceeded to name Day as the legal mother, the anonymous sperm donor (whose name was, like, anonymous) as the child’s legal father, and then denied Strickland any legal rights to the child.

Day’s attorneys argued that Strickland should have terminated the anonymous sperm donor’s parental rights during the divorce, and she failed to do so.  But, as also pointed out by the American Society for Reproductive Medicine, that would be a real issue for any couple that had a child using a sperm or egg donor and then divorced. Same-sex or not.

Even more concerning is the urging by other groups, such as the Foundation for Moral Law, that the Mississippi Supreme Court should ignore the U.S. Supreme Court precedent. They contend that the Supreme Court was overreaching when it ruled in favor of same-sex marriage in Obergefell, and that that case should be ignored. But see Marbury v. Madison; Cooper v. Aaron.

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In all seriousness, this case should be a no brainer in the wake of Obergefell and Pavan. But it’s always possible that the Mississippi Supreme Court will make a terrible ruling, and force Strickland to take her plight to the Supreme Court. Unfortunately, given that the Supreme Court just denied certiorari to a case from Texas denying equal rights to same-sex couples, that would be a very concerning trajectory for the LGBTQ community.

What Ever Happened With That Portland Billionaire, His Quest For A Son, And His Drama? You will recall that Jordan Schnitzer, a Portland real estate developer, had two teenage daughters but longed for a son. A child was conceived using eggs from Schnitzer’s girlfriend at the time, Cory Sause, combined with Schnitzer’s sperm, and carried by a gestational surrogate. (Sause, conveniently, had previously cryopreserved her own eggs before the relationship.)

A contract between Sause and Schnitzer stated that Schnitzer would receive “full jurisdiction custodial rights” [sic?] to male embryos, while Sause would receive rights to female embryos. After a son was born, Sause contested that, yes, she gave up rights to the embryos, but not to any children born from the embryos. Hmm. And the facts, indeed, were further muddied with texts from Schnitzer to Sause during the pregnancy talking about “her baby.”

Despite the passage of time, they are still fighting for rights to the child. An eight-day bench trial took place before the judge in September 2017, but the outcome is still yet to be determined. In the meantime, Schnitzer has had a second son. This time through the help of an anonymous donor and a gestational surrogate.

It Was Sad When The First US Uterus Transplant Failed.  Any Good News? Yes!  Some great news! The first ever baby was born from an American uterus transplant. Go America! Eight other babies have been born from this procedure, but all in Sweden. The mother was born without a uterus, and received one from a living donor. The procedure took place at Baylor University Medical Center in Dallas.

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It is estimated that up to 50,000 women in the United States could be candidates for uterus transplants, due to birth defects or the loss of reproductive organs from cancer. This birth is amazing news for the family, and new hope for many.

See you next week!

Ellen TrachmanEllen 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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