Family Law Prof Blog

Editor: Margaret Ryznar
Indiana University
Robert H. McKinney School of Law

Saturday, November 28, 2009

Strasser: "You Take the Embryos But I Get the House (and the Business): Recent Trends in Awards Involving Embryos Upon Divorce"

Mark Strasser (Capital University Law School) has published "You Take the Embryos But I Get the House (and the Business): Recent Trends in Awards Involving Embryos Upon Divorce," 57 Buffalo L. Rev. 1159 (2009).  An excerpt:

More and more couples are delaying starting a family.  Because fertility declines with age, delaying childbirth increases the likelihood that couples will have to make use of assisted reproductive technologies such as in vitro fertilization (“IVF') to fulfill their hopes of having children biologically related to at least one of them. As might be expected in a country with a relatively high divorce rate, the increased use of IVF has led and will continue to lead to more and more couples having to decide what to do with remaining frozen embryos upon dissolution of their marriages.
While some divorcing couples have little or no difficulty in deciding who should control the disposition of their cryogenically preserved embryos, others must rely on the courts to determine who will have final say over how or whether those embryos will be used. State courts have suggested a variety of ways to resolve such conflicts, ranging from enforcement of prior agreements to balancing the needs and desires of the parties to requiring contemporaneous consent before implantation can take place. Regrettably, because the courts analyzing these issues tend not to give adequate weight to how related family law issues are resolved and because the courts have not adequately considered some of the practical implications of their positions, both the reasoning and the results in these cases are all too often anomalous.
Part I of this article discusses Davis v. Davis and Kass v. Kass, in which the highest courts of Tennessee and New York respectively stated that initial agreements regarding the disposition of frozen embryos are enforceable. These cases illustrate the possible heartbreak that can be caused either when couples fail to make agreements regarding the disposition of their frozen embryos or when they make agreements without carefully considering the possible difficulties that might have to be confronted in the future. Part II discusses some of the subsequent decisions in which state courts have made clear that frozen embryos cannot be used if one of the progenitors objects, initial agreement to the contrary notwithstanding. These decisions not only reflect a preference against implantation but also create the opportunity to game the system at one of the worst possible times. Part III discusses two recent intermediate appellate decisions in which the courts seem to revert to the earlier Davis-Kass model whereby initial agreements are enforceable. The Article concludes that while the judicial enforcement of initial IVF agreements has its own difficulties, these pale in comparison to the difficulties posed by some of the competing approaches.

The abstract may also be viewed from SSRN here.


November 28, 2009 in Alternative Reproduction | Permalink | Comments (0) | TrackBack (0)

Monday, November 2, 2009

Lost Embryos in Lousiana

In continuing news of fertility clinic disasters, NPR reports that litigation proceeds in New Orleans against a fertility clinic that lost dozens’ of couples embryos due to mislabeling.  It is not clear what exactly happened to the embryos—some affected couples fear they may have been implanted in other women.  DNA testing of the clinic’s embryo holdings is being employed in the hope of locating the embryos.  In the meantime, the fertility clinic has been indefinitely shut down and an audit is being conducted.



November 2, 2009 in Alternative Reproduction | Permalink | Comments (1) | TrackBack (0)

Sunday, November 1, 2009

Kindregan: "Considering Mom: Maternity and the Model Act Governing Assisted Reproductive Technology "

Charles P. Kindregan, Jr. (Suffolk University Law School) has posted Considering Mom: Maternity and the Model Act Governing Assisted Reproductive Technology, 17 Am. U. J. Gender Soc. Pol'y & L. 601 (2009), on SSRN.  Here is the abstract:

The traditional family law doctrine governing maternity was easy to apply. Simply stated the rule for centuries was "the birth mother is the legal mother." However, this rule can no longer operate in the growing field of assisted reproductive technology and especially in collaborative reproduction. Today the birth mother is often a surrogate carrier, who may have a genetic connection to the child she births. However, in most cases the surrogate carrier has no genetic connection to the child. In contrast to the birth mother, the intended mother may be designated as both the legal mother under a contract and actually be the genetic mother. In other cases the intended mother provides an embryo to the surrogate carrier which was produced by a donated egg so that even though she intends to be the legal mother she has no genetic connection to the child. While a heterosexual intended mother may resort to surrogacy to overcome an infertility problem, or because of a history of miscarriage or simply to avoid pregnancy, the growing use of assisted reproduction by same-sex couples raises a number of legal parentage problems which are now coming before the courts. Parentage affects custodial and visitation rights and the law of inheritance. There is little statutory law to assist the courts in such cases. The author examines these problems in the light of the newly proposed A.B.A. Model Act Governing Assisted Reproductive Technology, and also considers the proposed uniform laws governing parentage and probate.


November 1, 2009 in Alternative Reproduction | Permalink | Comments (0) | TrackBack (0)

Thursday, October 29, 2009

New Frontiers: Scientists Make Sperm and Eggs from Stem Cells

Yesterday's online edition of Nature revealed that researchers at Stanford have determined the genes that coax human embryonic stem cells into becoming cells that form eggs and sperms.  As a Reuters article explains, researcher Dr. Kehkooi Kee was able to pinpoint germ cells (cells that differentiate into either eggs or sperm in the human body) that developed from embryonic stem cells by adding a gene that fluoresced green when germ cells were active.  Once the green fluoresced, indicating the formation of a germ cell, researchers began silencing and overexpressing genes to determine which ones were most involved in the transformation of stem cells to immature germ cells.  Among the most important genes in this transformation turned out to be DAZ, DAZL and BOULE.  Researchers may redo the process not with human embryo cells, but with a sliver of human skin.  This discovery has major implications for the definition of the family and the treatment of infertile couples, especially those who cannot produce their own viable sperm and eggs.  In theory, this technique would allow people to make babies without contributing their actual eggs or sperm.  Science, once again, provocatively presents new issues in family law, public policy, and ethics.     



October 29, 2009 in Alternative Reproduction | Permalink | Comments (0) | TrackBack (0)

Tuesday, October 27, 2009

Octomom's Fertility Doctor Expelled from a Medical Society

While the legal profession continues pondering the appropriate limits of fertility treatment, the American Society for Reproductive Medicine has recently expelled Dr. Michael Kamrava—the doctor who implanted 6 embryos (2 of which split in utero) last year in 33-year-old Nadya Suleman, mother of octuplets.  Although the society’s membership is voluntary and therefore does not impact Dr. Kamrava’s ability to practice medicine, the Society stated that Dr. Kamrava exhibited “a pattern of behavior that violated the group’s standards.”  The Society’s guidelines recommend no more than 2 embryos for women under 35 and no more than 5 embryos for women over 40.  Nadya Suleman already had 6 children when she became pregnant with octuplets following Dr. Kamrava's fertility treatment.




October 27, 2009 in Alternative Reproduction | Permalink | Comments (1) | TrackBack (0)

Sunday, October 18, 2009

Fellowship Opportunity in Reproductive Rights

From Columbia Law School and the Center for Reproductive Rights:

The Center for Reproductive Rights – Columbia Law School Fellowship (“CRR-CLS Fellowship”) is a two-year, post-graduate fellowship offered by the Center for Reproductive Rights (“the Center”) and Columbia Law School (“the Law School”). The Fellowship is designed to prepare recent law school graduates for legal academic careers, with a focus on reproductive health and human and human rights. Fellows will be
affiliated with the Center and the Law School and will participate in the intellectual life of both programs.

The CRR-CLS Fellowship is a full-time, residential fellowship for up to two full years starting in July 2010. The Fellow will be a member of the community of graduate fellows at the Law School and will be integrated into the legal and policy work of the Center and will have work space at both locations. The Fellow will also have access to
law school facilities, including the library and on-line research resources, and faculty events. It is expected that the Fellow will work closely with an assigned Law School faculty mentor.

Read the full fellowship announcement here.


October 18, 2009 in Alternative Reproduction, Paternity | Permalink | Comments (0) | TrackBack (0)

Wednesday, April 15, 2009

Second Parent Adoption, DOMA, and Genetic Child

This case presents important questions about the ways in which a child’s “parents” are defined and legally constituted, and how the parent/child relationship can be protected in a transient, cross-border society.  Answers implicate assisted reproductive technologies (ARTs) and an out-dated statutory scheme which fails to anticipate the relations created by those technologies, New York’s evolving jurisprudence of same sex relationships, equal protection, full faith and credit, and the effects of the federal Defense of Marriage Act (“DOMA”) (Pub L No 104-199, 110 US Stat 2419 [1996], codified at 1 USC § 7 [2000] and 28 USCS § 1738C [2000]).  This court concludes that although petitioner already has a legally protected parental relationship with Sebastian and, even in the absence of that legal relationship, could utilize several less intrusive, expensive and time-consuming methods of establishing one, the only remedy available here that will accord the parties full and unassailable protection is a second-parent adoption pursuant to New York Domestic Relations Law (“DRL”) § 111 et seq.

So begins In re Sebastian, an opinion by New York Surrogate Kristin Booth Glen, in a case that sounds as if it might be a Family Law exam:

Ingrid A. is a Dutch citizen who works at the United Nations.  Mona A. is of Somali/Yemeni heritage, had an international upbringing and practices international law at a New York firm.  Ingrid and Mona have been in a committed relationship for more than eleven years, and on December 24, 2004 they were legally married in the Netherlands. Desirous of establishing a family, and one which would reflect their ethnic and racial diversity, Mona donated her ova which were fertilized  in vitro2 by an anonymous sperm donor chosen for his similarities to Ingrid’s Dutch Italian ethnicity.   The fertilized ovum was successfully implanted in Ingrid’s uterus, and on January 27, 2008 she gave birth to Sebastian, with Mona at her side.   A birth certificate was issued by New York City’s Department of Health and Mental Hygiene naming Ingrid alone as Sebastian’s parent.  Since then Ingrid and Mona continue to live together and co-parent Sebastian, who they consider to be the child of each of them.  Notwithstanding their marriage and Mona’s unquestioned genetic relationship to Sebastian, Mona here seeks to adopt the child.

Glen grants the second-parent adoption as the only way in which the parental rights would be protected across state and national borders, but only after exploring the other possible avenues and concluding that they do not provide sufficient certainty:

Sebastian’s genetic mother has other potential legal avenues:  first, to be listed on Sebastian’s birth certificate; second, with her partner, Ingrid, to execute a statutorily prescribed acknowledgment of paternity [filiation]; and third, to obtain a judicial order of filiation. Only the last of these is presumptively subject to Full Faith and Credit.  This court, however,  lacks jurisdiction to confer legal parentage in any way other than by granting the adoption requested by the parties.  And, although it is also true that an adoption should be unnecessary because Sebastian was born to parents whose marriage is legally recognized in this state, the best interests of this child require a judgment that will ensure recognition of both Ingrid and Mona as his legal parents throughout the entire United States.


This is an erudite opinion by Surrogate Glen, former family law professor (and former dean at CUNY School of Law), that is worth reading for professors, practitioners, and students alike. The opinion is available as a pdf here.


April 15, 2009 in Adoption, Alternative Reproduction, Current Affairs, Marriage (impediments) | Permalink | Comments (0) | TrackBack (0)

Thursday, March 26, 2009

New York City allows two-moms on birth certificate

As NY 1, among others, reported:

Married lesbian couples in the city can now be listed as parents on their children’s birth certificates.

The city Board of Health voted in favor of the change yesterday.

Previously, women would have to go through an adoption process to be listed as the official parents.

The state made a similar move in December, after a court ruling and an order from Governor David Paterson that state agencies respect out-of-state gay marriages. But the city DOH operates independently of the state, and made its own decision.

Married male couples still will need to adopt their children in order to be officially listed as their parents.

New York does not permit same-sex couples to marry, so the reference is to couples married in other states or Canada.


March 26, 2009 in Adoption, Alternative Reproduction, Custody (parenting plans) | Permalink | Comments (4) | TrackBack (0)

Thursday, February 26, 2009

Limiting Reproduction

An editorial by Professor Naomi Cahn of George Washington University School of Law and Adam Pertman, executive director of the Evan B. Donaldson Adoption Institute discuss a new research-based report by the Evan B. Donaldson Adoption Institute, "Old Lessons for a New World," which suggests that it may be time for federal and state regulation of assisted reproduction. "The report points out that adoption and assisted reproductive technology have much in common as "nontraditional" means of forming families, and that adoption's far-longer history of research, experience and evidence-informed policies therefore could help to improve practices in the world of assisted reproduction."

Read the editorial in the Baltimore Sun
The report is available at the website of the Evan B. Donaldson Adoption Institute
(last visited February 26, 2009 bgf)

February 26, 2009 in Alternative Reproduction | Permalink | Comments (0) | TrackBack (0)

Monday, January 26, 2009

Hastings Symposium on Liability for Reproductive Technology

Hastings Law Journal just completed its symposium on Creating Children with Disabilities:
Commentaries on Parental Tort Liability for Preimplantation Genetic Interventions
.  The symposium was sparked by Professor Kirsten Smolensky's article, Creating Children with Disabilities: Parental Tort Liability for Preimplantation Genetic InterventionsThis article suggests that children should be able to successfully sue their parents who engage in certain direct genetic interventions. Tort law should protect a child's moral right to an open future where parents' preimplantation genetic choices limit a child's ability to pursue a variety of different life paths. In reaching this conclusion, the article addresses various barriers to tort liability, including "no duty" arguments, parental tort immunity, and a variety of constitutional concerns.

A response by Professor I Glenn Cohen of Harvard entitled "Intentional Diminishment, the Non-Identity Problem, and Legal Liability"  considers the way these issues are intertwined with what philosophers have called the "Non-Identity Problem," the idea that so long as a resulting child will have a life worth living the child cannot be harmed by being brought into existence, because even an impoverished life is better than not existing at all. Professor Cohen responds to Professor Smolensky's suggestion that the Non-Identity Problem should cause us to extinguish tort liability in cases where disabled children are created by preembryo selection but not if it was done through (a still hypothetical technology enabling) the genetic manipulation of a pre-embryo to induce a disability. Professor Cohen suggests some problems with the argument for drawing a distinction (for Non-Identity Problem and hence legal liability purposes) between the two methods of creating disabled children. He also examines whether legal liability should be barred even for cases where the Non-Identity Problem applies.

Professor Alicia Ouellette of Albany Law School responded with her article: Insult to Injury: A Disability-Sensitive Response to Professor Smolensky's Call for Parental Tort Liability for Preimplantation Genetic Interventions in which she addresses the implications for people with disabilities of Smolensky's  argument. Specifically, it argues that limiting damages to cases in which a child is born with a disability unnecessarily and inaccurately devalues life with disability and leaves unprotected children whose DNA is shaped for traits other than disability at the request of their parents. It then suggests a disability-sensitive approach for delineating cognizable injury under which genetic modifications for disability are treated like other genetic modifications that shape a future child for cultural, aesthetic, or social reasons.

last visited January 26, 2009 bgf

January 26, 2009 in Alternative Reproduction | Permalink | Comments (0) | TrackBack (1)

Friday, January 16, 2009

Test Tube Families - new book

Cahn Family Law Prof Naomi Cahn of George Washington has a new book from NYU Press: TEST TUBE FAMILIES.

Here's a bit from the publisher's materials:

Incorporating real-life stories to illustrate her arguments, Cahn provides specific suggestions for legal reforms. The book sets out a series of controversial proposals, including an end to donor anonymity and a plea for states to clarify parentage decisions. She also calls for the federal government to regulate ART processes to ensure that donors are adequately protected against exploitation, that recipients receive the gametes they have been promised, and that the market functions ethically as well as efficiently.

It certainly looks like a book worth reading.  And for Family Law Profs teaching courses with a writing component, it seems a great book for a student essay-review. 


January 16, 2009 in Alternative Reproduction | Permalink | Comments (0) | TrackBack (0)

Thursday, January 15, 2009

British conference on Family Law/Bioethics


The Human Fertilisation and Embryology Act 2008: New Directions in Biolaw and Bioethics
A CentreLGS Workshop on Monday 30 March 2009 @ Keele University

Confirmed speakers include:

Emily Jackson, London School of Economics; and Human Fertilisation and Embryology Authority

Julie McCandless, Oxford Brookes University and Sally Sheldon, University of Kent

Derek Morgan, University of Sheffield

Jackie Scully, University of Newcastle

Aleardo Zanghellini, Marquarie University Sydney, Australia

Following a lengthy review and consultation process the UK’s Human Fertilisation and Embryology Act finally received Royal Assent on 14 November 2008.  The new legislation makes important changes to the law governing issues such as reproductive cloning, the creation of hybrid embryos for use in research, the circumstances in which ‘saviour siblings’ may be created, and how parenthood is defined.

This CentreLGS workshop aims to provide an informed analysis of some of the key and most controversial features of the new legislation, focusing particularly on provisions governing the use and manipulation of embryos for research and reproductive purposes and revisions to definitions and understandings of legal parenthood. Leading commentators will explore these topics in the light of concepts and tropes underpinning the legislation, including reproductive choice and autonomy, dignity, human rights, the natural/unnatural dichotomy. In addition to constructive critique of the new provisions, the workshop will also provide a platform from which to consider directions for future academic research on the governance of reproductive technologies.

Please keep an eye on our website for updates on speakers and a programme (soon available):

For further information about this workshop, please contact Marie Fox (

For registration, payment or other administrative queries, or if you a legal or health care professional interested in claiming CPD points, please contact Helen Farrell.

Places are limited and should be booked by 10th March 2009 at the latest. Please return the completed form to:

Helen Farrell, RI Law, Politics and Justice, CM1.12 Moser Research Centre, Keele University, Keele, Staffordshire, ST5 5BG.

Tel:  01782 733641
Fax: 01782  734592


January 15, 2009 in Alternative Reproduction | Permalink | Comments (1) | TrackBack (0)

Tuesday, August 19, 2008

Case Law Development: Access to Fertility Treatments by Lesbians

The California Supreme Court has unamiously ruled medical personnel’s claims to First Amendment rights (based on religion and speech) must yield to the state’s anti-discrimination law in the provision of medical services, including fertility treatments.  As stated by the court in its August 18, 2008 opinion:

Do the rights of religious freedom and free speech, as guaranteed in both the federal and the California Constitutions, exempt a medical clinic’s physicians from complying with the California Unruh Civil Rights Act’s prohibition against discrimination based on a person’s sexual orientation?  Our answer is no.

The case was based upon a doctor’s refusal to perform intrauterine insemination on the plaintiff, Guadalupe Benitez, because the doctor’s religious beliefs precluded her from performing the procedure on a lesbian, or perhaps on an unmarried woman. 

North Coast Women’s Care Medical Group, Inc. v. Superior Court, (California  Supreme Court, August 18, 2008)
Read the opinion online (last visited August 19, 2008  RR)


August 19, 2008 in Alternative Reproduction | Permalink | Comments (0) | TrackBack (1)

Tuesday, January 15, 2008

Case Law Development: Child Born As Result of Implantation of IVF Embryo After Father's Death Not Entitled to Inheritance Rights

Answering a certified question from the US District Court, the Arkansas Supreme Court has held that  A child born in a test tube and implanted in his mother's womb after his father's death cannot necessarily be considered as an heir to his father's property.  The critical issue according to the court was whether the date of conception for her child should be considered when the embryo was created or when the embryo was implanted in the mother's womb.

The case arose when a mother applied for child insurance benefits for her child implanted and born after father's death.  Arkansas social service officials denied her request, saying the child was "conceived" after the father had died. The Arkansas social security administration argued that "conception" was defined as the onset of pregnancy or the implantation of an embryo in the womb. Mother argued that her child was "'conceived' at the time her egg was fertilized by the father's sperm,"

The court said the law on inheritance did not address in vitro fertilization and was adopted before the procedure was developed. But the court declined to offer a legal definition of conception, saying that was "not our role."  "Were we to define the term 'conceive,' we would be making a determination that would implicate many public policy concerns, including, but certainly not limited to, the finality of estates." Instead, it urged the state legislature to address the question.

Finley v. Astrue, Arkansas Supreme Court (January 10, 2008)
Opinion online (last visited January 15, 2008 bgf)

January 15, 2008 in Alternative Reproduction | Permalink | Comments (0) | TrackBack (0)

Tuesday, July 3, 2007

Saving Eggs from Young Cancer Patients

"Doctors have removed eggs from young female cancer patients and -- for the first time -- brought the eggs to maturity before freezing them, giving the girls a better chance to one day have children. Previously, scientists had thought viable eggs could only be obtained from girls who had undergone puberty.

''We didn't expect young girls to have eggs that could withstand the process of maturation,'' which involves adding hormones, said Dr. Ariel Revel, who led the research at the Hadassah Hospital in Israel."

By Associated Press, N.Y. Times Link to Article (last visited 7-3-07 NVS)

July 3, 2007 in Alternative Reproduction | Permalink | Comments (0) | TrackBack (0)

Thursday, May 10, 2007

Sperm Donor Liable for Child Support

"A sperm donor who helped a lesbian couple conceive two children is liable for child support under a state appellate court ruling that a legal expert believes might be the first of its kind in the U.S.

A Superior Court panel last week ordered a Dauphin County judge to establish how much Carl L. Frampton Jr. would have to pay to the birth mother of the 8-year-old boy and 7-year-old girl.

"I'm unaware of any other state appellate court that has found that a child has, simultaneously, three adults who are financially obligated to the child's support and are also entitled to visitation," said New York Law School professor Arthur S. Leonard, an expert on sexuality and the law."

Associated Press Link to Article (last visited 5-10-07 NVS)

May 10, 2007 in Alternative Reproduction | Permalink | Comments (0) | TrackBack (0)

Monday, April 2, 2007

Donating Frozen Embryos for Stem-Cell Research

"There are a half-million or so frozen human embryos stored in freezers across the country, and two of them belong to Jodi Kreiser and her husband.  Like thousands of couples trying to have families through in-vitro fertilization (IVF), they faced a wrenching choice: what to do with embryos they created at great financial and emotional cost that are not destined to become their children. Most couples keep them frozen indefinitely, and eventually, experts say, they are destroyed.

Now, the Kreisers are among the first in the state to have a new choice. Their embryos will be donated to the University of Minnesota for embryonic stem-cell research. The step is emerging as an option amid intensifying political debate on the use of stem cells." By Josehine Marcotty, Star TRibune, Link to Article (last visited 4-2-07 NVS)

April 2, 2007 in Alternative Reproduction | Permalink | Comments (1) | TrackBack (0)

Wednesday, February 7, 2007

Should Doctors Help Parents Choose Sex of Baby?

"If people want to choose their baby’s sex before pregnancy, should doctors help? Some parents would love the chance to decide, while others wouldn’t dream of meddling with nature. The medical world is also divided. Professional groups say sex selection is allowable in certain situations, but differ as to which ones. Meanwhile, it’s not illegal, and some doctors are already cashing in on the demand. There are several ways to pick a baby’s sex before a woman becomes pregnant, or at least to shift the odds." By Denise Grady, N.Y. Times Link to Article (last visited 2-7-07 NVS)

February 7, 2007 in Alternative Reproduction | Permalink | Comments (0) | TrackBack (0)

Tuesday, January 30, 2007

World's Oldest New Mother

"A 67-year-old woman who is believed to be the world's oldest new mother told a British Sunday newspaper she lied to a U.S. fertility clinic -- saying she was 55 -- to get treatment. Carmela Bousada said in her first interview since she gave birth to twin boys on Dec. 29 that she sold her house in Spain to raise $59,000 to pay for in vitro fertilization at a California clinic, The News of the World reported.

''I think everyone should become a mother at the right time for them,'' Bousada said in a video of the interview provided to Associated Press Television News." By Associate Press, N.Y. Times Link to Article (last visited 1-29-07 NVS)

January 30, 2007 in Alternative Reproduction | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 19, 2006

Donor-Conceived Child Speaks Out

"When she was 32, my mother -- single, and worried that she might never marry and have a family -- allowed a doctor wearing rubber gloves to inject a syringe of sperm from an unknown man into her uterus so that she could have a baby. I am the result: a donor-conceived child. And for a while, I was pretty angry about it.I was angry at the idea that where donor conception is concerned, everyone focuses on the "parents" -- the adults who can make choices about their own lives. The recipient gets sympathy for wanting to have a child. The donor gets a guarantee of anonymity and absolution from any responsibility for the offspring of his "donation." As long as these adults are happy, then donor conception is a success, right?

Not so. The children born of these transactions are people, too. Those of us in the first documented generation of donor babies -- conceived in the late 1980s and early '90s, when sperm banks became more common and donor insemination began to flourish -- are coming of age, and we have something to say. I'm here to tell you that emotionally, many of us are not keeping up. We didn't ask to be born into this situation, with its limitations and confusion." By Katrina Clark, Link to Article (last visited 12-18-06 NVS)

December 19, 2006 in Alternative Reproduction | Permalink | Comments (1) | TrackBack (0)