Whose baby is this IVF mixups other reasons to change the law

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before his death in california in 1991 a

man named william kane wrote a letter to

the children from his first marriage and

to his fiancee deborah

it read

i address this to my children because

although i have only two of you everett

and katie it may be that debra decides

as i hope she will

to have a child by me after my death i

have been assiduously generating sperm

samples for that eventuality

if she does then this letter is for my

posthumous offspring as well

with the thought that i have loved you

in my dreams even though i never got to

see you born

what happened after william kane’s death

was a lawsuit that would forever change

the law

his ex-wife and adult children argued

that deborah should not be allowed to

use the sperm samples they should be

destroyed

and a trial court agreed with them

but deborah appealed

and a california appellate court agreed

with her

finding that william kane and all of us

have the right to use our dna after our

death even to have children

i’m sure everyone in this room has let

their loved ones know if they can use

their dna to have a kid after they die

right

okay probably not yet

but what happens if we don’t tell anyone

if we don’t write it down

and what happens when a couple creates

embryos together for use down the road

then divorces or eggs and sperm are

mixed up or an embryo transfer to the

wrong woman

because all of these things have

happened

thanks to advances in technology there

are more ways to try to have a baby

but the law has lagged behind and

because the law hasn’t kept up with the

technology

it’s hurting people

families trying to conceive donors and

surrogates trying to help them and the

children born into these wild situations

and one day could affect you or your

loved ones

i’m an attorney probably not surprising

by my knowledge of egg sperm and the law

i started my career in the investment

management group of a large

international firm forming hedge funds

at parties when asked what i did for a

living my answer was generally followed

by glances around the room for someone

more interesting to talk to

but that time i was surrounded by people

thinking about having babies from my

housemates who were a gay couple to my

sister and her husband struggling with

infertility

and i learned about assisted

reproductive technology law

i had the chance to read through an egg

donation agreement and it blew my mind

so many questions i had never thought of

what if an egg donor goes through a

single retrieval procedure and has 20

eggs retrieved

not a crazy number

could those eggs be donated to 20

different families

could each of those families have a

child genetically related to her

what about disclosure and future contact

would she know the children would the

children know each other

i was fascinated

way more interesting than hedge

funds but the law in this area will

leave your head spinning

even the definition of what is an embryo

is inconsistent and contradictory from

state to state

in louisiana an embryo is defined as a

juridical person

what’s that

even the lawyers aren’t really sure what

a juridical person is

but we do know that it means that

embryos stored in tanks and negative 321

degrees fahrenheit have the right to sue

people

and don’t think they won’t do it

last year celebrity actress sofia

vergara of modern family fame and my

favorite smurfs

was sued

by her embryos

she had gone through fertility treatment

with her ex-fiance nick loeb

when they were a couple

they had two remaining embryos from

their ivf process stored in a clinic in

los angeles

the consent forms they signed were clear

neither could use the embryos without

the other’s consent

at this point vergara had moved on

married the actor from magic mike joe

manganiello

she did not want those embryos being

used

loeb on the hand was doing everything in

his power to win rights to the embryos

after losing in california court

he formed a trust for the embryos in

louisiana

he even named the embryos emma and

isabella and had them file a lawsuit

against fergara

demanding that they rebot be brought to

birth

ultimately the lawsuit was dismissed for

lack of jurisdiction meaning louisiana

wasn’t the right place to hear the case

the embryos were in los angeles

california neither loeb nor vergara

lived in louisiana

but given louisiana’s definition of

embryos as people it would have been

fascinating and concerning if the court

had been able to rule on the case

of course these were celebrities so we

got to read about their case in the news

but it could happen to anyone who’s gone

through ivf

that’s more than two million people per

year

worldwide

by contrast to the idea that embryos are

people

other laws and judges treat embryos as

property

in texas a probate judge was forced to

determine the legal properties of 11

embryos when a couple was murdered

leaving behind their embryos and

their two-year-old son

the judge determined that embryos have

value

and therefore property and should go to

the couple’s heir

the two-year-old

to determine what to do with them when

he turned 18.

that’s a heavy responsibility for an 18

year old

does he transfer them to a surrogate and

raise his genetic siblings

does he donate them to others

does he forget about them entirely

not likely that his parents were

thinking about these questions when they

formed those embryos

aside from struggling with the

definitions of eggs sperm embryos and

who can use them

the law especially struggles when there

are mix-ups in the lab

in 2018 a woman in new york pregnant

with twins was surprised at her

ultrasound appointment when her

obstetrician congratulated her on having

two boys

you see

she had gone through ivs in california

and there her embryos have been tested

and shown to be two female embryos

she called the clinic

but they said don’t worry about it

ultrasounds are frequently inaccurate

you’re having two girls

but she gave birth to two boys

and they didn’t look like her or her

husband

they did genetic testing

she was not genetically related nor was

her husband

in fact

the twins weren’t even related to each

other

across the country

a woman in california got a call from

her fertility clinic

it had been about nine months since

she’d gone through a failed embryo

transfer

she thought she was being asked to come

in for routine testing

but was met with a room full of doctors

lawyers mental health professionals that

told her

there had been a mistake

her embryo had been transferred to

another patient and her genetic son had

been born

in new york one of the twins

a judge in new york determined that the

birth parents were not the legal parents

the children instead

the woman in california and her husband

were legal parents to one of the twins

and another couple entirely were legal

parents to the other twin because they

were the genetic parents

but a similar thing happened in italy

with the exact opposite result their

two embryos were transferred to the

wrong patient and a judge determined

that the birth parents were the legal

parents the children

and the genetic parents

had no legal rights at all to their own

genetic children

it’s time for the law to change

here in colorado

our lone egg and sperm donation statute

has the language a wife with her

husband’s consent

it’s a little offensive to us liberated

women

but also doesn’t include single parents

by choice or lgbtq parents

it also doesn’t include those who donate

their embryos or those who receive

embryos to have a child

what can we do besides advocating for

better laws

we can think carefully about our own

reproductive material

every adult knows that they should have

a will

even if they haven’t done it yet

a will lets those we leave behind know

what to do with our assets and our

possessions

but most wills don’t include an

invaluable asset

our reproductive material

and that leaves loved ones confused and

facing inconsistent laws

for instance

in 2019 a west point cadet named peter

zhu was in a tragic ski accident

his family begged the hospital and then

a judge to let them retrieve his sperm

they explained to the judge that their

son had always wanted to have children

and moreover it was a vital cultural

importance them to continue their family

line

the judge was persuaded

he issued the order to allow the sun’s

sperm to be retrieved and later used for

conception purposes

but here in colorado

the law

is not the same

in the last few years at least twice

it’s happened where a man was taken to

the hospital before his death and the

request by a spouse to have his sperm

retrieved was denied

because he didn’t have a consent on file

with the hospital

but in another case where a man died

suddenly and was taken to the coroner

his spouse’s request to have a sperm

retrieved was granted

because the coroner is not subject to

the same policies and procedures

as a hospital

so

if you think

you might allow

someone to have a child with your dna

after your death or you don’t want them

to

tell them

write it down

grab a napkin put it on a napkin

send a text no matter how strange that

text may look

it happens more often than you think

we think more carefully about organ

donation

but this is just as important

i bet you didn’t think you need to

include this in your will

the world has changed

the technology is here and it will only

keep advancing

and this isn’t the only area where

technology is outpacing the law

we need to challenge ourselves to think

carefully about what these innovations

mean to ourselves

to our families to our children

and to future children

whether they’re genetically related to

us or not

thank you

[Applause]

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you