An English woman has succeeded in a landmark ruling preventing her dead husband’s sperm from being destroyed.
Prior to commencing cancer treatment, Beth Warren’s husband signed the necessary paperwork that would allow for his sperm to be used by his wife posthumously. However the regulations meant that the sperm had to be destroyed by April 2015.
The Human Fertilisation and Embryology Authority, the UK regulator, said that the sperm could not be stored beyond April 2015, which led Mrs Warren to take the matter to court. The law requires consent for sperm to be stored to be renewed periodically, however after Mr Warren’s death that was no longer possible.
In her judgement, Mrs Justice Hogg said: “The evidence indicates that both Mr Brewer and his wife were in agreement. He wanted her to have the opportunity to have his child, if she wanted, after his death.”
The judge ruled that it was “right and proper and proportionate” that the sperm be stored until 2023.
The HFEA has announced plans to appeal the decision.
The judgment is available here.
In what was a protracted legal battle, Mrs Justice Eleanor King (pictured) sitting in the High Court in London heard a case concerning a 3 year old boy who had effectively two mothers.
The case concerned a married couple who approached a friend to be artificially inseminated at home with the husband’s sperm. At birth the surrogate and the husband were named on the child’s birth certificate. The married couple subsequently separated and the wife found herself with no parental rights as she was not recognised as the child’s legal or biological mother.
Describing the case as a ‘cautionary tale’, the judge highlighted the dangers of informal surrogacy agreements and the importance of couples using licensed and regulated fertility clinics.
Surrogacy contracts are not enforceable in the UK. During the course of the case it emerged that lawyers had prepared a surrogacy contact for the parties, for which they received payment, and had thus unknowingly committed a criminal offence under the Surrogacy Arrangements Act 1985.
To complicate matters further, the time limit for applying for a parental order, the only legal order that would have extinguished the surrogate mother’s parental responsibility, had expired.
In her ruling the judge made a shared residence order to the former couple, affording the woman with parental responsibility and restricting the surrogate mother’s ability to exercise her parental responsibility over the child without permission of the court.
Latest figures from the Children and Family Court Advisory and Support Service in Britain have revealed a significant increase in children conceived through surrogacy. The number of babies registered as being born to a surrogate has increased by over 200 per cent in the last 6 years.
In 2013 167 babies were registered as being born to a surrogate compared to 47 in 2007.
In Britain commercial surrogacy is a criminal offence and payment to surrogates is only allowed for reasonable expenses. However, many British couples go overseas to countries where commercial surrogacy is lawful.
Recently the British Foreign and Commonwealth Office issued guidance to intended parents in Britain who are embarking on surrogacy abroad.
It is horrific to think that this kind of discrimination can exist in the United States in 2014:
Arizona’s Legislature has passed a controversial bill that would allow business owners, as long as they assert their religious beliefs, to deny service to gay and lesbian customers.
The bill, which the state House of Representatives passed by a 33-27 vote Thursday, now goes to Gov. Jan Brewer, a Republican and onetime small business owner who vetoed similar legislation last year but has expressed the right of business owners to deny service.
The measure has drawn criticism from Democrats and business groups who said it would sanction discrimination and open the state to the risk of damaging litigation.
“With the express consent of Republicans in this Legislature, many Arizonans will find themselves members of a separate and unequal class under this law because of their sexual orientation,” Anna Tovar, the state senate Democratic minority leader, said in a statement. “This bill may also open the door to discriminate based on race, familial status, religion, sex, national origin, age or disability.”
The bill is being pushed by the Center for Arizona Policy, a conservative group opposed to abortion and same-sex marriage. The group has justified the measure on grounds that the proposal protects people against increasingly activist federal courts.
“As we witness hostility towards people of faith grow like never before, we must take this opportunity to speak up for religious liberty,” the group said on its website, asking people to contact Brewer and urge her to sign the bill. “The great news is that SB 1062 protects your right to live and work according to your faith.”
Cathi Herrod, the center’s president, told CNN on Friday, “The Arizona bill has a very simple premise, that Americans should be free to live and work according to their religious faith. It’s simply about protecting religious liberty and nothing else.”
Herrod said the bill’s opponents are “showing unbelievable hostility toward religious beliefs.”
“America still stands for the principle that religious beliefs matter (for) something in this country, that we have the right to freely exercise our religious beliefs,” she said.
But Robert Boston, a spokesman for the Washington-based Americans United for Separation of Church and State, told CNN the legislation would “fling the door wide open to discrimination, not just against gay people, but basically to any class of individuals that a religious fundamentalist decides he or she doesn’t want to deal with.”
He added, “A woman who is pregnant out of wedlock, for example, ‘Well, out the door, you don’t get served in my business.’ ”
The Arizona legislation was passed as conservative states work to counter laws legalizing same-sex marriage. Arizona voters approved a ban on same-sex marriage as a state constitutional amendment in 2008.
Vladimir Putin would be proud of the Arizona legislature. And Martin Luther King said it best, “Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity.”
There has been a lot of buzz this week about the IRS pursuing an egg donor for not reporting as income $20,000 in compensation she received from two egg donation cycles. I suspect Judge Holmes will rule later this year that at least a significant portion of the egg donor’s compensation is taxable income.
The unintended consequence of this anticipated ruling will likely lead to an increase in the “fees” being charged by egg donors so as to offset their tax liability. Most donors have a figure in mind that they want to net for their cycle. So you can expect the average donor compensation to increase by anywhere from 15-35% — creating further financial headaches for already cash-strapped infertility patients.
We wrote about an interesting tax case earlier this week which may see an egg donor having to pay tax on her donor compensation.
Nichelle Perez maintains that the $20,000 she received (in 2009) through donating eggs was exempt from tax and payment for pain and suffering. However, the IRS considers it to be income.
At the crux of the case, which will have far reaching consequences, is whether the act of donating eggs constitutes an act of commerce. There is it seems, a lot uncertainty as to how it should be regarded.
Ms Perez didn’t record the income on her tax return, however the IRS received information from the donor source which indicted that Ms Perez had been paid.
Legal academics have suggested that it is unlikely that Ms Perez’s argument that the income was akin to damages for a personal injury will find favor with the court given that she consented to the medical procedures.
If however the court were to rule that the donation was tantamount to sale of property Ms Perez wouldn’t be liable for self-employment tax at 15.3%
A ruling is expected after May 2014. The consequences of this ruling will be significant and not limited just to egg donor compensation, but sperm donation as well.
The new law removes the age restrictions on those who would meet the euthanasia criteria, where children have a terminal and incurable illness and are near death and suffering “constant and unbearable physical pain”. In such circumstances there must be agreement amongst clinicians and the child’s parents.
The law, expected to come into effect once given the Royal Ascent by King Philippe, who is not expected to oppose it, has been met with opposition by some paediatricians and members of the Catholic faith.
As well as there being agreement by clinicians and parents, the child would also undergo interviews by a child psychiatrist who must asses and determine that the child possesses “the capacity of discernment” in order to qualify.
The Belgium government legalised euthanasia for adults in May 2002.
The previous policy required that the mother must have a genetic connection to the child in order to qualify as a parent to enable them to obtain immigration benefits. Under the new policy, gestational mothers (i.e. the birth mother) who are the legal parent of the child will be regarded in the same way as genetic mothers in terms of immigration benefits.
Saliently, the policy change means that the law will recognise the definition of “child” to mean the child of a genetic or gestational parent who is also the legal parent at the time of the child’s birth.
The federal government has also confirmed that the policy will also be available retrospectively, thus enabling hundreds of individuals to claim legal and immigration benefits when their application would have been denied previously. Individuals in those circumstances must be able to provide evidence that they meet the relevant statutory requirements.
Whilst this is a welcomed change in the law, individuals considering entering a surrogacy arrangement should always seek appropriate immigration and family law legal advice beforehand.
To read the full policy document click here.
The United Sates Tax Court in Washington DC adjourned a case earlier this month as the case may have wider implications beyond the parties to the case. Judge Mark V. Holmes said that the case of Nichelle Perez v Commissioner of the Internal Revenue, should be adjourned as it addresses the “inclusion of taxable income of the compensation received for the sale or donation of human eggs and related services”
A ruling is expected later in the year.
Despite waves of anti-homophobic sentiments in some states in response to the emerging Same-sex marriage revolution, state court rulings appear to be facilitating change towards embracing equality for LGBT people.
Camilla Taylor,national director of the marriage project at Lambda Legal said “We’ve reached a watershed where public officials feel ashamed of discriminating against people and are sensitive to the fact that they could go down in history as being on one side or the other of a struggle for civil rights.”
It is thought that there are about 20 federal cases where same-sex couples are seeking to challenge their state’s ban on same-sex marriage or because the state will not recognise their same-sex marriage from another state.
Virginia became the latest state last week to rule that a prohibition against same-sex marriage was unconstitutional when US District Court Judge Arenda Wright Allen endorsed the legal analysis of federal judges in Utah and Oklahoma. All of the rulings found that the prohibition against same-sex marriage was a violation of the 14th amendment. However, Utah and Oklahoma are appealing the rulings.
Professor Douglas NeJaime, a law academic at the University of California, said these “are all states that politically weren’t going to move to same-sex marriage any time soon. The courts are forcing their hands. We seem to have all of the lower courts going in the one direction in saying that Windsor applies to these state laws so that the states have to recognise same-sex marriage.”
Legislators in Kansas on Monday debated a bill that would criminalize surrogate motherhood.Republican Senator, Mary Pilcher-Cook (pictured above) who is the chairwoman of the Senate Public Health Welfare Committee introduced the bill. The bill proposed that any individual involved in the creation of a surrogacy arrangement in Kansas would be guilty of a misdemeanour crime, […]
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