NEWS FROM REPRODUCTIVE PARTNERS

Legal Issues Involving Third Party Reproduction
By Denise L. Cassidenti, M. D.

The use of third party reproduction has increased dramatically over the last several years. The term third party reproduction is used when another person (i.e., egg donor, surrogate or gestational host) is involved in the process of conceiving or carrying the pregnancy. Medically, the idea of using either an egg donor or a gestational or traditional surrogate is not novel. Although in our minds it is obvious who the "parents " are and to whom the child belongs, the legal system doesn't necessarily recognize our common sense approach. Legally the concept of parentage is not as clear as it may seem. This article will discuss some of the legal issues regarding third party reproduction.

First, it is important to define terms. The intended parents are the couple that initiate the conception process and can be referred to as the intended mother or father. The egg donor is a woman who has consented to donate her eggs to the intended parents so that they may conceive a child. In this situation, the egg donor is the genetic mother, but the intended mother is the biological mother as she gestates the pregnancy. The term surrogate or host refers to a woman who carries the pregnancy. A gestational surrogate or host is a woman who carries a pregnancy that she is not genetically related to. A traditional surrogate is a woman who has used her own egg and was inseminated with the intended father's sperm. She, therefore, is both the genetic and biological mother of this child.

The use of an egg donor or a gestational surrogate requires the use of In Vitro Fertilization (IVF). The woman (i.e., egg donor or the intended mother), whose eggs are being used, must be stimulated to produce multiple follicles. These eggs are then retrieved and fertilized with the intended father's sperm. The embryos are then transferred into either the intended mother or the gestational host. The egg donor at the time of retrieval relinquishes all parental rights to her eggs and subsequent embryos or children and transfers these rights to the intended parents. In the case of the gestational host, a contract is signed between the gestational host and the intended parents in which the gestational host agrees that the child at birth will be given to the intended parents. In addition, the birth certificate is legally changed to reflect that the intended parents are also the genetic parents.

In the situation with a traditional surrogate, artificial insemination is the procedure used to achieve a pregnancy. Once the child is born, a stepparent adoption by the intended mother is needed for her to gain legal custody of the child.

Obviously, in a perfect world there would be no disagreements and everyone would follow through and carry out all the items that were agreed upon. Unfortunately, this is not always the case. Divorce or second thoughts on the part of a gestational or traditional surrogate have brought the courts into several cases. Family law has been left to the individual states. Therefore, a state is not bound by legislation passed by other states and can pass their own statutes regarding these issues. The one basic principle, which all states agree on, is that the buying and selling of babies is strictly prohibited.

Although determining parentage may appear easy, many attempt to find ways to deny their parentage. In general, a man who fathers a child is recognized in the law to have both legal and financial responsibilities to that child regardless of whether he is married to the child's mother. However, if a woman is married and has a child, that child is considered the product of that marriage. This is often referred to as Lord Mansfield's Rule and was designed to prevent having a high number of illegitimate children. 

Only five states, Florida, North Dakota, Oklahoma, Texas, and Virginia have statutes specific to egg donation. These statutes relieve the egg donor from all parental rights or responsibilities and transfer them to the intended mother. The only challenges to the intended mother's legal right of custody have been in divorce proceedings. In both cases (McDonald v McDonald - New York; Ezzone v Ezzone - Ohio) the father claimed that since he was the only genetic and natural parent that he should be given higher status than the intended mother. In both cases, the courts found in favor of the mother. In the New York case, the judge found that since it was the intent of the couple to jointly have and rear offspring that this made the wife the natural mother. Therefore, the father could not elevate himself to a higher status when arguing for custody of the child. In the Ohio case, the courts made egg donation analogous to sperm donation. They also felt that there was even greater connection to the mother since the intended mother gestated the pregnancy. These two rulings help to protect women undergoing egg donation and reinforce that the intended mother is seen in these two cases as the natural mother.

There has been one case regarding gestational surrogacy, Calvert v Johnson. In this case, after the child was born, Ms. Johnson decided that she did not wish to relinquish the child to the Calverts. The child was the genetic child of the Calverts. In the initial court ruling, the courts found in favor of the Calverts stating that genetics takes precedence. Therefore, the gestational host could not be the mother because she did not have any genetic ties to the child. Although this ruling was good for the Calverts, it had the potential to affect egg donation especially if a donor were to have second thoughts. However the California Court of Appeals made the ruling that the intended mother in a gestational carrier arrangement can be deemed the legal mother of the child. This ruling helps to support the use of gestational surrogacy and protects the intended parents.

"Baby M" is a famous case involving traditional surrogacy. In this case, after delivering the baby, who resulted from the surrogate's egg and the intended father's sperm, the surrogate decided that she did not wish to relinquish the child to the intended parents. She argued that the intended mother had no genetic or biological ties to this child and therefore had no rights to the child despite a contract that she had signed. In this case, the courts found in favor of the surrogate. Most states require a stepparent adoption by the intended mother for legal custody. This type of third party reproduction is the most risky for the intended parents, as legally they have no recourse if the surrogate changes her mind.

Third party reproduction can be a viable alternative for many couples undergoing infertility procedures. However, in addition to the medical aspects, legal issues can pose multiple problems as well. It is important that couples considering third party reproduction are aware of all aspects of this new technology.

Intrauterine Insemination Better Than Intracervical in Frozen Donor Insemination

A recent survey of seven randomized-controlled studies looking at the success rate of frozen donor insemination has concluded that intrauterine insemination (IUI) resulted in higher pregnancy rates than intracervical insemination (ICI). (Fertility & Sterility 72: No. 5, 792-795, 1999)

The odds of a woman becoming pregnant were 2.4 times higher for those using IUI. The studies varied in their approach, some using no drugs, others using clomiphene or injectable fertility drugs. The use of clomiphene did not appear to affect the pregnancy rates. The authors feel that the superiority of IUI is the result of delivering a greater number of motile sperm to the site of fertilization. 

At Reproductive Partners we perform only IUI for donor inseminations as well as for therapeutic inseminations using the partner's sperm. Women wanting to use a donor who only has ICI specimens may request ICI specimens that will then be processed for IUI in our laboratories.
 

New Evidence Shows No Link of Fertility Drugs to Increased Risk of Ovarian Cancer

A recently published study provides reassuring evidence that the use of fertility drugs is not linked to an increased risk of ovarian or breast cancer. (The Lancet 354: No. 9190, 1999) Statistics on over 29,000 women were gathered from ten Australian IVF clinics who were referred before 1994 with a mean duration of follow-up of seven years. 

The incidence of cancer in those exposed was significantly higher, but only in the first twelve months after exposure and then decreased to lower levels. Overall, the incidence of breast, ovarian and uterine cancer in the group of women who were exposed to fertility drugs was not greater than expected. The authors believe that the increased incidence in the first is explained by either earlier diagnosis during the IVF evaluation or that the fertility drugs made pre-existing cancers more apparent and therefore diagnosed earlier.

Women with unexplained infertility had significantly more cancers of the uterus and ovary than expected regardless of exposure to drugs. Also women who were registered with the clinics but never went through treatment had a higher cancer risk. There was no association between the number of IVF cycles performed in an individual and an increased cancer risk.

In a related development, the results of the largest study ever conducted to investigate the issue reported at the October 1999 annual meeting of the American Society for Reproductive Medicine and the Canadian Fertility and Andrology Society showed that fertility drugs do not increase ovarian cancer risk.

The records of over 50,000 patients from three California clinics including our own between 1965 and 1998 were matched with cancer registries across the state and found only half the expected number of ovarian cancer cases that were expected in the general population. In this study the only group experiencing a significantly higher rate of borderline ovarian tumors and those of low malignant potential were patients who sought infertility services but who did not receive drug treatment. We are proud to have participated in this important study.

These studies reinforce the general feeling of Reproductive Partners physicians that the initial alarming reports of increased ovarian cancer rates in fertility patients taking fertility drugs were flawed.

- Dec 1999