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