Ireland's High Court rules IVF children not owed duty of care after mix-up

The High Court in Ireland ruled that not only were the children not owed a duty of care but they were not entitled to damages. The judge also stated the children had no other legitimate expectation other than to be born healthy and well.

Their parents, sued an unnamed Health and Social Services Trust for alleged negligence in the insemination.

They claimed the mix-up, led to racial taunting and emotional distress.

A judge also ruled they were not entitled to an award for damages.

Mr Justice Gillen said the children, who cannot be named for legal reasons, also had no legitimate expectation other than being born healthy and well.

Instead of using a white donor as desired, the mother's eggs were inseminated with sperm labelled Caucasian (Cape coloured) - a label given to a mixed-race community in a South African province.

One potential implication is that a child born to a white person from such a donor may go on to have different skin-coloured children themselves if they have a mixed-race partner.

After hearing the case in private Mr Justice Gillen said: "The court is thus being asked to venture into the complexities of the creation of life, involving a unique physical and scientific process and to develop the law to deal with an instance where harvested eggs were fertilised with that which has been termed inappropriate donor sperm."

He said it was for parliament "to grasp the nettle" of whether a duty of care ought to be owed in circumstances such as the case before him.

"Absent the imprimatur of parliament I am not content to find that these plaintiffs have sufficient status to be owed a duty of care," the judge ruled.

The mother of the children had issued claims for personal injuries, loss and damage against the trust who provided her IVF treatment.

The court heard the children are darker in complexion than their parents and of different skin colour.

Their colour was also said to be markedly different from each other.

It was claimed they have been subjected to abusive and derogatory name calling from other children, and comments about the difference between them and their parents.

It even led to the children questioning whether they were adopted.

The trust stated that sperm used in the case was not mislabelled, but that a correct label was misunderstood by a staff member.

'Sympathy and concern'

In his ruling, Mr Justice Gillen acknowledged the authority has already admitted liability to the parents and is willing to negotiate settlement.

He also stressed that their current circumstances "could not fail to engage both sympathy and concern".

But despite the perception of how their children had suffered, the judge said: "The presence of persons sufficiently misguided and cruel as to issue racist comments directed to these children is no basis for a conclusion that they are somehow damaged.

"I have therefore come to the view that these children have not suffered any legally recognisable 'loss or damage' connected to the alleged breach by the defendant."

After dismissing the parents' claims, the judge ruled that anonymous details of the case could be published.

"I believe the issue of IVF - a subject on which differing views are held by the public at large - and the general context of what has happened in this instance, are matters of general public interest on which I should give effect to the right of the press to freedom of expression," he said.

"Ordering that the court file be sealed and that there should be no publication of any account of the pleadings or the determination of this case would be a step too far.

"I am not persuaded that general discussion of the issues in this case will afford any disturbance of confidence in the IVF service or lead to irresponsible investigative journalism."

Intended Parents Lose Custody of Twins to Surrogate

This past week The New York Times ran an article on the Michigan surrogate who gave birth to the twins she later sued for custody -- and won.

Why didn't the IVF specialist at IVF Michigan insist on a legal contract between the parents and the surrogate with an experienced assisted reproduction attorney? An experienced ART attorney would have advised the couple NOT to work with a surrogate from the state of Michigan. Well, not unless they were comfortable in taking the risk of losing their children, which they did.

All IVF Centers that I work with will not do a transfer of embryos on a surrogate without legal clearance from an experienced ART attorney and this case clearly illustrates why. Intent to parent controls in California, the state where I practice, so this type of case typically does not happen here.

And why is the Intended Mother unfit to care for her children? She has not had a schizophrenic episode, in what, eight years? I was speaking with a former surrogate today and she said, "good for the Intended Mother in not wanting to harm herself or her unborn children by getting pregnant while on medication." Are you unfit to parent solely based on the fact that you have been diagnosed with a mental illness?

I cannot stress enough the importance of working with an experienced ART attorney, especially when there is no biological link between either or both parents. Cases like these should not be happening. Creating your family using a third party is expensive, but if you pass on or forget to get an attorney, the price you may pay could be much, much higher.

The Right to Have 11 Children Defended

I tweeted about this the other day but since Octomom issues like this don't go away and need to be revisited. First, it should be clarified that this couple's children were not conceived using in vitro fertilization but rather ovulation induction where the woman is stimulated using either Clomid or injectable medications and either has intercourse with her husband or her physician performs an IUI (intrauterine insemination). In my research induction usually causes more multiples than in vitro. Yes, I know Nadya Suluman had her eight children with IVF but she really and truly is not the norm.

Most IVF physicians that I work with think a failure during an assisted reproduction cycle is when the patient either doesn't get pregnant or she gets pregnant with more than twins.

Further, this couple has two children previously, two sets of quads and now twins (one child did not survive). IVF is a much more expensive procedure and if ovulation induction is working, and it certainly has for this couple, no doctor is going to recommend a much more expensive and invasive procedure when it is not necessary.

I know it is a tough subject, especially for all of you struggling to have one child. The knife couldn't go in far enough or deep enough. Contact me if you want to talk or scream or cry. I'll listen.

What do you think? Should this couple have had 11 children using assisted reproduction techniques?

Ontario Experts Recommend IVF for All Except Women Over 42

The expert panel recommended IVF for all including same-sex couples and singles, but not for women over the age of 42. I have a friend who is 42 years old and pregnant (yes, naturally) and we all know a friend or a friend of a friend who got pregnant at 42 or older so why would the Canadian panel pick that age?

It's simple, really. Egg donation is virtually non-existent in Canada because egg donors cannot be paid and they cannot be anonymous. That makes it very difficult for women to find a donor in their own country. And IVF is funded by the national health care system so the chances of IVF working for a 42 year old woman are not great.

I can hear you now: what about the women in their 40s who are in excellent health? They work out, take great care of themselves and look 10 years younger. It doesn't matter with eggs. Forty-two-year-old eggs are old, especially when you compare them to a 22 year old woman. It doesn't matter how many lunges you do.

What say you?

12 Babies? Did we learn nothing from Octomom Nadya Suleman

The Sun reported this week that a teacher in Tunisia is pregnant with 6 boys and 6 girls and she has vowed to carry them all to term. Did we learn nothing from the tragedy that is Octomom Nadya Suleman?

Those babies will be lucky if they make it 30 weeks -- and survive. Even if they all survive, most likely some if not all of those babies will have multiple health problems that may last a lifetime. While fertility treatments of some kind were used, at this point no one knows if in vitro fertilization (IVF) or artificial insemination (IUI) was the procedure used.

As in the case of Nadya Suleman, the blame rests squarely on the shoulders of the doctor involved. He or she is the one controlling the treatment; however, it is unlikely that he or she will ever have to take any responsibility, either financial or emotional, for the outcome.

What say you?

An Update on Embryo Donation

What do you do with your embryos? It's a dilemma that many couples and individuals who have gone through IVF treatment face, as there is an estimated 400,000 to 500,000 cryopreserved embryos in the United States alone. You are done having your own children and you are not sure what to do with the embryos you have cryopreserved at your IVF center. As the years go on, you are charged more each year to maintain them. It is a very real dilemma for a lot of people.

Embryo donation is a viable option and it has received more press with the passage of the "Option of Adoption Act," which will take effect July 1, 2009 in the state of Georgia. Under the new law, "A child born to a recipient intended parent as the result of embryo relinquishment ... shall be presumed to be the legal child of the recipient intended parent," the new law states. HB 388 does not require the recipients to be a married heterosexual couple, which I was afraid of, but they do require that all parties sign an agreement, which is what I do for my embryo donation clients.

Most people believe that the difference between an embryo adoption and a donation is that the adoption is open and the donation is anonymous, which is not true. I have drafted or reviewed embryo donation contracts where the recipient and donor are known to each other and have worked on contracts where they are not. It is all up to the parties involved as to how that is handled.

With the economy still an issue, there are couples that need a third party to help them create their family, but they simply cannot afford it. And, there are thousands of couples with excess embryos cryopreserved for years. It's a very personal decision, but for those who decide to donate, the potential for joy is endless.

Extraordinary Conceptions extends a helping hand to Surrogenesis, Michael Charles Holding Company Clients

If you are an Intended Parent and you have lost money with the disappearance of the Michael Charles Holding Company and Surrogenesis, Extraordinary Conceptions, LLC would like to offer a helping hand by discounting your Egg Donation and Surrogacy Cycle. We know how hard you have worked and how many years you have suffered and to have a company like Surrogenesis give you false hope that your dreams of having a child will come true, only to steal your life savings blind is appalling.

In case you haven’t heard, escrow company Michael Charles Holding Company has shut its doors, affecting more that 30 Intended Parents and taking off with 1,000,000 in client trust funds. While MCHC stated on their website that they were licensed and bonded, it has now come to light that they might be neither. The FBI is investigating MCHC and if you have any information about MCHC or Surrogenesis, please contact Extraordinary Conceptions and we will get you in touch with Sterling Johnson, who is tirelessly working to see if any money can be recovered for all those affected. However, as Sterling pointed out, even if any money can be recovered, it will be too late to meet your immediate financial needs.

Tonya Collins, President and CEO of Surrogenesis, is also Agent for Service for Michael Charles Holding Company and it is unclear if she had an ownership interest in the company. However, we at Extraordinary Conceptions and others in the industry are extremely doubtful that Tonya will emerge from this heartbreaking mess as an inocent victim.

Please contact Mario Caballero, the Executive Director of Extraordinary Conceptions, at mario@extraconceptions.com, to speak to him about your cycle and the discount program for those affected by the Michael Charles Holding Company and Surrogenesis.

My heart goes out to all those affected. Dreams have been shattered and that is not an understatement. Surrogates are left without insurance while pregnant as bills were not paid. Donors have been left without payment after undergoing weeks of shots and an egg retrieval. And Intended Parents have lost their life savings, and in some cases, money they don’t have as most have to borrow money to afford treatment.

For those looking to work with an agency, please be careful and choose wisely. Speak to therapists in the industry and IVF physicians. Get personal recommendations. Do not rely on information online. You do not know who is posting that information and why. Anyone can say anything about an agency, and you can bet that Tonya Collins and Surrogenesis had a lot of people saying great things about her and her agency.

Samuel Wood, MD on “Octuplet Mess”

A must-read blog post from Samuel Wood, MD, who is a board certified reproductive endocrinologist and has been practicing in this field for 15 years, on the octuplets. He puts the blame squarely on the shoulders of the physician and has contacted the medical board to investigate the situation.

He not only shows leadership in contacting the medical board, but also compassion as he urges all of us to give the children our support, as they are innocent.

I highly encourage you to read his full post as he covers the issues surrounding the pregnancy and birth of the octuplets thoroughly.

Economic Turmoil Fuels India's Fertility Business

I recently posted about how patients are canceling their IVF appointments for surrogacy and egg donation in India because of the recent terrorist attacks in Mumbai, but apparently that has not stopped the booming industry in India. In fact, with many women and men getting laid off from their well paying jobs, more educated women than ever before are becoming surrogates and egg donors.

In fact, one woman in the article was at the pharmacy looking to buy poison to kill herself because of her family's desperate financial situation when she saw an advertisement for egg donors. She applied, was accepted and is now receiving income for helping infertile couples who could not have a genetic child without her help. Another woman's husband was laid off and she knew it would be incredibly difficult for her to find employment, so she applied to become a surrogate and is now hoping to become pregnant for an American woman.

I do believe that India is not taking away the surrogacy business from any agency or attorney in this country. Those couples or individuals who are going to India would not have used a surrogate or an egg donor in the United States because they simply cannot afford it. For them, the United States was never an option.

Surrogacy in Uganda?

Four children have been born via surrogacy in Uganda, where according to my calculations, the cost for surrogacy is about $3,800, including IVF costs and the surrogate’s fee, which is about $1,600. This is well below what it costs for couples in India, which is about $35,000. But, and this is a big “but,” surrogacy in Uganda is completely unregulated and is not socially recognized. The surrogate in the article had to move because her neighbors would not accept or understand the process and she had to move her children during the pregnancy because she didn’t know how to answer their questions about the baby she was carrying. That one is easier than most people think, but since surrogacy is so new in that country, the surrogates do not get the support they would get in other countries, like the United States.

I would caution anyone looking outside their country for surrogacy to do thier research and investigate the doctor, hospital, agency, surrogate, etc. In this case, you cannot do too much research. I would not recommend the country of Uganda, as surrogacy is still more for family and friends who reside in that country.

AFA Responds to Vatican’s Dignitas Personae

Ken Mosesian, the executive director of the American Fertility Association and a practicing Catholic and an openly gay man in a committed relationship has commented about the Vatican’s Dignitas Personae, which was released on December 8, 2008, and is the Vatican’s newest “Instruction on Bioethics,” which includes IVF, surrogacy and egg donation.

While the Vatican is against using these technologies and treatments to create a child, Ken cautions that all life should be treated with dignity and that all people should treat the children created using these techniques with dignity and respect. As a mother of twins created with IVF and surrogacy, I applaud his approach and agree with it completely.

I would be horrified to be sitting in church and have a pastor or priest make my children feel “less” because of how they were created. My children are dearly, dearly loved and they know that. But, at Ken’s urging, I will have a discussion with them and continue to have talks with them on how some people could be deeply offended at their creation.

I will also help them understand and instill in them respect for human life and dignity for all. Like Ken, I was raised Catholic and I have been debating whether to return to the Catholic church and my hesitation has been because I disagree with many of their teachings; however, as Ken pointed out, complete agreement is not necessary to be a faithful member of any church.

The Vatican’s newest Instruction on Bioethics, is available on the web site of the United States Conference of Catholic Bishops.

Blogging About Infertility

Recently, the L.A. Times published an article about the voice that people now have when through blogging when they are undergoing infertility treatments. I wish something like that had been available to me when I was going through my treatments because it was incredibly lonely.

Most of my friends had no problem getting pregnant, especially my coworkers! During my second round of IVF I got pregnant only to miscarry at 8 weeks while 6 women in my department were pregnant! They were showing ultrasound pictures and I was having my first D&C. If only I had a blog where I could write about about how devastated I felt at the time.

Click here to read the complete article: Up Close and Personal: Blogging about infertility

New IVF Treatment Could Double Pregnancy Rates

The article doesn't say what the new treatment is that could double pregnancy rates, but that is probably because the researchers at the University of Adelaide are not disclosing it, but it sounds promising as the group says the treatment could significantly increase implantation rates and decrease pregnancy complications for women undergoing assisted reproductive treatments (ART).

The article even calls the single embryo transfer the "holy grail" and says this treatment could possibly perfect transferring one embryo, which would significantly decrease the risks to both the pregnant woman and the unborn children.

The testing is currently being done on rats, but if true it could hold great promise for couples and individuals who have been unable to achieve a pregnancy with ART.

Click on New Treatment Could Double Pregnancy Rates for the complete article.

America's First IVF Twins Turn 25

What an inspiring story to others who are struggling with their fertility and have been given little or no chance of having a child. The Tiltons were told the very same thing in the early 80s, but they never gave up and now their twins, created using in vitro fertilization, are celebrating their 25th birthday. The twins do not feel different or special, just grateful to their parents for never giving up.

Please see the complete article here: http://today.msnbc.msn.com/id/23898180?GT1=43001

Infertility Treatments and Why They Suck

See my links for an article that was written by a woman who went through infertility treatment. Do they suck? Yes, until you either stop or achieve your dream. I cannot say differently. It's not fun poking yourself with needles and going in for your 10th vaginal ultrasound -- this month! But, would I do it all again and then some? Yes, I would.