A gay family from Florida finds itself in a horrible predicament that should concern couples of all stripes who have turned to surrogacy to create their families. Gordan Lake and his husband connected with a surrogacy agency in Thailand, and on January 17, their dream of fatherhood came true when a Thai surrogate gave birth to their daughter Carmen.
According to reporter Mel Spencer, who broke the story for Gay Star News, that dream of fatherhood soon became a nightmare of red tape and legalized discrimination after the surrogate discovered that Lake’s spouse is a man. Uncomfortable with two men raising the baby, the surrogate withdrew her commitment to the arrangement, refusing to sign any papers after Carmen’s birth.
Thailand’s laws do provide some protections for intended parents but only if those parents are “husband and wife,” a gender-specific requirement that left Lake and his daughter in the lurch, without a clear path to return home to the U.S.
As Lake explains in the GSN article:
“In principle the provision is written to do the right thing and give parental rights to [intended] parents, but since it says ‘husband and wife’ we don’t know how [the Thai courts] will rule given we are ‘husband and husband.’
“We will be forced to go through this court procedure, facing another year and half in Thailand, with complete uncertainty of how [the statute] will be interpreted.”
In order to cover the mounting costs of legal proceedings, and accommodation in Thailand, the couple are appealing for donations, but they also hope to change the phrasing in the new Thai law so it does not only include “husband” and “wife.”
As things stand, [Lake] says the U.S. embassy is unable to take any further action, so he and his husband are campaigning to get Hillary Clinton and Barack Obama on their side in order to help speed the decision-making process along.
“We are involving Hillary Clinton and Barack Obama because we think they will be sympathetic to our call and be able to reason with the right people to be able to initiate this engagement with the Thai authorities,” [Lake] said.
“Carmen is an American citizen, and she should be protected by the U.S.”
Lake’s horrific predicament should serve as a warning to all couples seeking to expand their families through surrogacy. First, couples should know that surrogacy arrangements abroad can present unexpected challenges, especially in nations where opposition to surrogacy and opposition to gay rights run high. Second, you can protect your family by working with experts that — like our firm, Vorzimer Masserman — bring to the table a comprehensive knowledge of the surrogacy laws in the surrogate mother’s home state.
Laws on surrogacy vary wildly from state to state and from nation to nation, and if you’re not working with experts who know those laws, your dream of parenthood could quickly become the nightmare that the Lake family is now facing.
A divorced couple’s tense battle over the fate of their frozen embryos took an unexpected turn yesterday. The case of Stephen Findley and Mimi Lee has been playing out in San Francisco Superior Court under the watchful eye of the national media.
Findley and Lee received in vitro fertilization treatments at UCSF’s Center for Reproductive Health. The couple froze five embryos and signed a document to dispose of the embryos in case of a divorce. Now that the couple has divorced, Findley has sought to dispose of the embryos, in accordance with the contract. Lee has asked the court to set aside the signed contract and grant her permission to use the embryos.UCSF’s attorney Dean Masserman cross-examining Lee
During his testimony earlier in the week, Findley, a successful financial analyst, described crass statements that Lee made about the financial value of the embryos, as she pressed Findley to state exactly how many millions of dollars the embryos were worth to him. Lee took the stand yesterday, admitted to making those statements, and broke down into tears.
Lee was cross-examined by Dean Masserman of our firm, Vorzimer Masserman, which represents UCSF in the case. Reporter Marisa Kendall of The Recorder described Masserman’s pointed exchange with Lee:
Under questioning by [Masserman], Lee told the court she sometimes signs documents without reading them all the way through. For example, she said she never reads the contracts that come with her iPhone updates.
“Well, it’s not an iPhone contract, OK?” Masserman snapped, prompting one of several objections by Lee’s lawyers to his “argumentative” questioning.
Lee testified that during her work as an anesthesiologist she often saw medical consent forms changed or adjusted. Furthermore, in the form she signed, there was language suggesting the form could be amended.
“You read it closely enough to get that part out of it,” Masserman said.
Lee responded she understood there were situations in which “we could change our minds.”
Masserman clapped his hands. “You just said we,” he shot back.
Masserman and Findley’s attorney, Joseph Crawford of Hanson Crawford Crum Family Law Group, have argued that both parties would need to consent to any changes in the directives on the form. Asked why she hadn’t frozen her eggs, Lee responded that her doctor had advised that freezing embryos would lead to a greater chance of a successful birth.
During his testimony, Findley had stated that Lee read the UCSF contract and solidified the couple’s wishes by checking the “thaw and discard” box. During cross-examination, Lee refused to concede that she had checked that box. “I don’t recall,” Lee replied when asked who made the check mark. “It could be mine. It could be Steve’s.”
Further coverage of the case was provided by KGO (ABC News-San Francisco):
Mimi Lee, the ex-wife of financial analyst Stephen Findley, is set to testify in the divorced couple’s high-profile battle over their frozen embryos. The couple received IVF treatments at UCSF’s Center for Reproductive Health, where they signed documents committing to dispose of the frozen embryos in the event of a divorce. After separating, Findley sought to have the embryos disposed of in accordance with their contract. Lee is seeking to use the embryos to bear children.
With the nation watching, the couple returns today to San Francisco Superior Court to settle the dispute. The hearing is expected to wrap up early next week, after which time Superior Court Judge Anne-Christine Massullo will issue a written ruling.
During his testimony, Findley explained his reluctance to parent a child with Lee, who, he said, has pressured him for millions of dollars during the course of their divorce. “[It would be] difficult for me to be forced to be a parent outside our marriage,” he stated, adding that he did not expect the remaining embryos to spark a bitter dispute. “I didn’t think the embryos were an issue in the divorce case because I remember the agreement we signed.”
In her upcoming testimony, Lee is expected to argue that her signed agreement to dispose of the embryos should be waived.
Attorney Dean Masserman of our firm, Vorzimer Masserman, is representing UCSF in this case and expects to start his cross-examination today. Dean has been providing updates on the proceedings at @FamilyLawLA. Further details can be found in the San Jose Mercury News.
Turn on your TV this week or open up your internet, and you’re sure to come across the San Francisco frozen embryo case. Stephen Findley and Mimi Lee underwent in vitro fertilization treatments at UCSF’s Center for Reproductive Health and froze five of their embryos. Now that the couple has divorced, Findley wants the embryos discarded; Lee would like to use the embryos. The national media has been calling their case “groundbreaking.”
But is it really? Having worked with assisted reproduction for decades, this case, at its essence, is really nothing more than a standard contractual dispute. Before undergoing the IVF treatments, Findley and Lee signed a legal contract at UCSF stating if the couple broke up, they were committed to disposing of their remaining embryos. Creating and signing these agreements is a standard step at any reputable California fertility clinic. In fact, these embryo disposition agreements are required by law.
California Health and Safety Code § 125315 states that fertility clinics “shall provide a form to the male and female partner … that sets forth advanced written directives regarding the disposition of embryos.” The Code is quite comprehensive, laying out numerous options for couples to select “[in] the event of separation or divorce of the partners” — everything from making the embryos available to one of the partners, to donating the embryos, disposing of them, or crafting their own action plan for the unused embryos.
By entering into a disposition agreement for the unused embryos, UCSF, Findley and Lee complied with this law.
The question in this case, then, is not a groundbreaking debate about “Whose embryos are they?” It’s really a simple, contractual matter: Findley and Lee signed and agreed to an embryo disposition plan. Now the court is called upon to support that action plan — and validate the wisdom of our state’s thoughtful, comprehensive safety code — by holding both parties to their signed agreement.
If there is a lesson to be learned from this case, it should be that it is essential that everyone proceeding with any form of assisted reproduction, have a valid and enforceable Reproductive Estate Plan in place.
As the trial continues, you can follow live updates on Twitter at @FamilyLawLA.
A divorced Bay Area couple clashed yesterday in San Francisco Superior Court, in a potentially precedent-setting battle over their five frozen embryos. As reported here yesterday, pianist Mimi Lee and her ex-husband, Stephen Findley, visited UCSF’s Center for Reproductive Health and, with the help of in vitro fertilization technology, created and froze five embryos. Now that the couple has separated, Findley wants to dispose of their embryos, in accordance with the contract that the couple signed at UCSF. Lee wants to use the embryos to bear children.
Lee underwent successful chemotherapy treatments after the couple created the embryos. In court yesterday Lee’s attorney, Maxwell Pritt, asserted that, due to those treatments, the frozen embryos represented her last chance to procreate. The opportunity to procreate, Pritt argued, is a cherished Constitutional right, “one of the central liberties guaranteed by our Constitution.” Many prestigious legal scholars, however, construe that right far more narrowly.
On the stand yesterday, Findley described how the couple read and signed a contract at UCSF before undergoing in vitro treatments. In the contract, the couple agreed to destroy their embryos if their relationship ended. Lee should be held to that signed agreement, Findley said. “The very purpose of the documents was to make [our intentions] clear,” he stated.
Lee asserts that the agreement she signed at UCSF should not be seen as a binding contract between herself and her ex-husband. As ABC News’ chief legal analyst Dan Abrams explains, Lee’s arguments are pushing against accepted understandings of the law. The contract “that she signed was very clear on this issue,” notes Abrams, “which makes it still a very difficult argument for her legally.”
Our firm, Vorzimer Masserman, represents UCSF, which maintains that Lee should be legally committed to the couple’s signed agreement.
Lee is expected to testify today. For more on the hearing, check out ABC News’ excellent coverage of the trial.
In vitro fertilization has been a blessing to hundreds of thousands of couples, but few of them discuss upfront a difficult question: “If we break up, what happens to our embryos?” “Modern Family” star Sofia Vergara found herself confronting that challenging question earlier this year, after her break-up with businessman Nick Loeb led to a bitter dispute over what to do with their frozen embryos.
Vergara and Loeb aren’t the first couple to face this legal and ethical crossroads, and as the San Francisco Chronicle reported this weekend, they are not the last. A Bay Area couple who received IVF treatments at UCSF’s Center for Reproductive Health and froze several of their embryos find themselves in San Francisco Superior Court today, battling over the fate of those frozen embryos. Now that the relationship is over, Stephen Findley wants the embryos destroyed. His ex-wife, Mimi Lee, wishes to use the embryos.
Lee’s wish marks an unexpected 180-degree turnaround from her previously expressed desires. Before their IVF treatments at UCSF, Lee signed an agreement to dispose of the embryos if her relationship with Findley dissolved. Her lawyer will now need to convince the court not to honor the agreement that she signed.
Our office, Vorzimer Masserman, represents UCSF in this case. UCSF requires all couples receiving IVF treatments at its fertility clinic to sign an embryo disposition agreement. That agreement establishes each couple’s precise wishes for their embryos, in case of divorce or death.
This case presents a bold reminder to all couples planning on IVF treatments to create such a disposition plan, to make sure that they fully agree on how to handle their embryos, in case their relationship comes to an unexpected close. Like euphoric newlyweds with the cool-headed wisdom to craft a prenuptial agreement, couples should decide what to do with their embryos in case of a break-up, then place those wishes on paper before beginning IVF treatments.
If you don’t, the court might be pressed into making the decision for you.
From Susan Livio of NJ.com: Governor Chris Christie, the newest Republican candidate, has once again vetoed a bill that establishes legal protections for people involved in gestational surrogacy agreements.
For the second time in three years, Gov. Chris Christie has vetoed legislation that would create rules for people in New Jersey who wish to conceive a child through a surrogate known as a “gestational carrier,” disappointing same-sex couples and adoption advocates.
The “New Jersey Gestational Carrier Act” would have clarified the law that already allows these arrangements as it applies to women who, unlike surrogates, have no biological link to the fetus because the egg belongs to another woman.
In his veto message late Monday night, Christie noted the legislature had sent him exactly the same bill he had vetoed in 2012 “rather than work with interested parties to address concerns raised during the initial debate.” Opponents, such as New Jersey Right to Life and the League of American Families, argued the bill exploits women and treats children as a commodity.
None of the “significant ethical and moral concerns raised by a government-enforced system of agreements to procreate” have been addressed, according to the veto statement. “I take seriously the need to guard against any societal deprecation of the miracle of life.”
Andrea Bowen, Executive Director for Garden State Equality, called the veto “a terrible outcome for families across New Jersey who need gestational surrogacy agreements to strengthen their families. We deplore what Governor Christie has done.”
Donald Cofsky of Haddonfield, past president of the American Academy of Adoption Attorneys, who worked with the legislative sponsors in crafting the bill, said the governor doesn’t seem to understand gestational carrier arrangements are already legal in New Jersey.
“All this act did was clarify everyone’s responsibilities and make sure no child left no child in the lurch,” Cofsky said. He could envision a situation in which intended parents walk away from a child born with a disability, leaving the carrier responsible. “The child will end up with the state and the taxpayers would foot the bill,” he said.
The state has not updated its surrogacy law since the Baby M case in 1988, which defined the legal relationship between a surrogate using her egg and a husband who used his sperm to conceive a child.
“New Jersey is usually in the forefront on these issues, but is trailing behind,” Cofsky said.
The bill (S2648) required the carrier to sign an agreement saying she would surrender the child immediately upon birth, and the intended parents’ names, not the carrier’s name, would appear on the birth certificate. Both intended parents and the gestational carrier would need to undergo a psychological evaluation and hire an attorney. The intended parents would be mandated to pay for the carrier’s attorney and all of their pregnancy and postpartum medical expenses, according to the bill.
Been a really bad week for people who oppose marriage equality and universal healthcare while trying to fly their confederate flag. For the rest of us, today will be a cause to celebrate this long overdue civil rights breakthrough.
From reporter Philippe Sotto’s article this morning for the AP:
Friday’s case could change how surrogate births are handled in France, where infertility treatments are highly regulated. Until now, children born abroad to surrogate mothers have been denied French birth certificates and a means to prove citizenship.
Last year, Europe’s top human rights court ordered France to change the law, saying France’s refusal to recognize the children was “an attack on the child’s identity, for which descent is an essential component.” France has yet to comply.
Infertile and same-sex couples who want a family have limited options in France. For-profit sperm banks are forbidden, as is surrogate parenthood, because both are seen as commercializing the human body. All sperm and egg donations must be anonymous and from someone who is already a parent.
The high court ruled in 2013, the same year that France legalized gay marriage, that surrogate babies were born fraudulently and could not receive birth certificates even if the biological father was French.
Children born abroad to a French parent are otherwise automatically granted a French birth certificate in addition to whatever citizenship is conferred by the birth country.
“For France, these are neither my children nor my husband’s,” said Sarah Levine, a Denver native who is married to a Frenchman and is the mother of two children born to surrogate mothers in the United States. “According to French law, we are nothing.”
A gay couple with two children born to surrogate mothers in Russia has challenged the law. In both cases, the Russian birth certificates bear the names of the French fathers and the Russian mothers.
At court on Friday, Patrick Spinosi, a lawyer arguing on behalf of parents, said French courts had to resolve “the deafening silence of legislators.” He described the 200 children involved as “ghosts of the Republic.”
Jean-Claude Marin, a lawyer for the government, condemned the “commodification of women’s bodies,” although he said he would not oppose recognizing children whose French fathers can prove a biological link.
The court plans to rule on July 3.
For so many childless couples, in vitro fertilization has been an ineffable blessing, unlocking the dream of parenthood that had once seemed beyond reach. For others in our country, usually families untouched by infertility themselves, there remains a lingering discomfort with IVF. For them, assisted reproduction seems more like a weird science experiment, one fraught with insurmountable ethical obstacles, as if our society were accelerating down a slippery slope toward the pod people factories in “The Matrix.”
The truth, as millions of families who have used IVF already know, is far more benign. In fact, in many instances, instead of facilitating the dehumanized mechanization of reproduction, IVF actually leads to unexpected, lasting human bonds so special, they’d seem downright farfetched if each of them wasn’t true.
The New York Times’ Tamar Lewin does a beautiful job of putting a human face on this of this aspect of IVF with a thoughtful piece this morning about Angel and Jeff Watts, a Tennessee family who brought four wonderful children into the world using IVF.
After their fourth child was born, the Wattses decided that their family was complete. Then they faced the conundrum that so many families encounter: what to do with their leftover embryos. Dump them, donate them to science, offer them to another family? The Wattses chose the third option and, with the help of a compelling Facebook posting, connected with Rayn and Richard Galloway, a childless, twenty-something couple who lived a few miles away.
“My husband’s words were, ‘It’s amazing, you found a 45-year-old version of us,’” Rayn said after meeting the Wattses, adding that meeting the family’s four children was like “seeing just what our kids would look like.”
A bond between families, a dream of parenthood come to fruition: these are the true stories that we, in the surrogacy field, have seen so many times and which will, bit by bit, put any lingering taboo connected to IVF into our country’s done-and-gone past.
Not my thesis but the argument of two prominent bioethicists in addressing the issue of organ donation: Is it morally wrong to kill people? Not really, argue two eminent American bioethicists in an early online article in the Journal of Medical Ethics. Walter Sinnott-Armstrong, of Duke University, and Franklin G. Miller, of the National Institutes […]
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