Friday Legal Updates™ – Embryo Mix-Ups, India Surrogacy, Lesbians Settle Lawsuit, Indiana Triplet Update & Texas Gay Divorce

TGIF, fellow bloggers and readers. We have more information on the embryo mix-up case, as well as a new development in India with Baby Manji and the Louisiana clinic that mislabeled embryos. Happy reading!

California – the lesbian couple who sued the clinic in San Diego for refusing IVF treatment based on their sexual orientation has settled. According to a joint statement, the defendants are “sincerely sorry that Ms. Benitez and Ms. Clark have felt this way, and have never meant to treat Ms. Benitez with disrespect.”

“Defendants want all of their patients, including those who are lesbian and gay, to feel welcome and accepted in their medical practice, and are committed to treating all of their patients with equal dignity and respect in the context of the highest quality of medical care.”

Benitez sued, and the case went all the way to the state Supreme Court, which ruled last year that Benitez was entitled to be treated like other patients with her same health problem, and that constitutional protections for religious liberty do not excuse unlawful discrimination.

“I didn’t look for this fight, my doctors forced it on me,” said Benitez, now a mother of three.

“We felt helpless, humiliated and trapped, and it’s been a long, hard fight to get to this point,” she said. “But we know we’ve made a difference in the law that will help people in California and hopefully, across the country. We are very proud of that.” Bravo!

http://www.sandiego6.com/news/local/story/Lesbian-Denied-Infertility-Treatment-Settles/F7HIH7njS0a9PyEYC2lBNw.cspx

Indiana – A 62-year-old New Jersey man who adopted twins born to a surrogate mother in Indiana must go through the adoption process again, Indiana’s Supreme Court ruled.

Reaffirming its earlier decision, the court said child-welfare officials in New Jersey must determine whether Stephen F. Melinger can

provide a safe and stable home for the twins, Kathy Zee and Karen Zaria Melinger, who were born in April 2005, the Indianapolis Star reported Thursday.

The girls, now 4, can stay with Melinger in New Jersey while he goes through the adoption process again, the Star said.

The court expressed concerns about false statements by Steven Litz, a lawyer who represents Melinger and owns a firm that solicits clients and surrogate mothers on the Internet.

provide a safe and stable home for the twins, Kathy Zee and Karen Zaria Melinger, who were born in April 2005, the Indianapolis Star reported Thursday.

The girls, now 4, can stay with Melinger in New Jersey while he goes through the adoption process again, the Star said.

The court expressed concerns about false statements by Steven Litz, a lawyer who represents Melinger and owns a firm that solicits clients and surrogate mothers on the Internet.

During adoption proceedings, the high court found, Litz had told a Indiana, court Melinger lived in Indianapolis when in fact he had lived in Union City, N.J., for 10 years. Litz also had indicated the surrogate mother was inseminated with sperm from Melinger and another donor when Melinger actually did not donate sperm, the court found

http://www.upi.com/Top_News/2009/10/02/Ind-high-court-orders-review-of-adoption/UPI-98341254467851/

Texas – A Texas judge has cleared the way for two Dallas men to get a divorce, ruling that Texas’ ban on same-sex marriage violates the constitutional guarantee to equal protection under the law. District Judge Tena Callahan’s ruled Thursday that the court “has jurisdiction to hear a suit for divorce filed by persons legally married in another jurisdiction.”

Texas Attorney General Greg Abbott has argued that because the state doesn’t recognize gay marriage, its courts can’t dissolve one through divorce. Voters approved a state constitutional amendment banning gay marriage in 2005.

Abbott says he’ll appeal the ruling.

“The laws and constitution of the State of Texas define marriage as an institution involving one man and one woman,” Abbott said in a written statement. “Today’s ruling purports to strike down that constitutional definition — despite the fact that it was recently adopted by 75% of Texas voters.”

http://www.usatoday.com/news/nation/2009-10-01-texas-gay-divorce_N.htm

Embryos Mix Up Updates – Ohio & Louisiana – Updates on these cases, as well as a response by the Ohio clinic and the ASRM.

A Lafourche Parish (Louisiana) couple said that Ochsner Hospital Elmwood can’t find four embryos that its fertility clinic froze more than two years ago. Kim and Abraham Whitney “hoped (that one of) these embryos would be their future child and a sibling to their only child,” said their attorney, Melanie Lagarde, who earlier this month filed suit on behalf of the Whitneys against Ochsner and the embryologist they believe was responsible.

This is the second class-action lawsuit filed against the clinic in recent months. In July, a St. Charles Parish couple, Heather and Duane Hebert, filed suit after a pair of embryos they had frozen also disappeared.

The Heberts were also notified that, even if genetic testing could determine which embryos were theirs, they would not be able to implant them because the Food and Drug Administration found that required screenings for sexually transmitted disease were not done prior to freezing, the lawsuit stated.

The clinic in Ohio responsible for the embryo mix-up between a Metro Detroit couple and a Toledo couple is promising it will “never happen again,” the attorney for the clinic announced Friday.

“This has never happened to this medical practice before, and they are working day and night so that it will never happen again,” Paul Manion, a Detroit attorney, said in a prepared statement.

Manion declined to name the clinic. But he said an unfortunate mistake had been made and, when it was discovered, the families were immediately notified.

Mixups Increase Scrutiny of Fertility Clinics

The ASRM has voluntary guidelines for its members and, a few years ago, enacted a policy to discipline members who don’t play by the rules. However, the group has long argued for autonomy to police itself.
However, in a statement released today, ASRM executive director Robert W. Rebar said:

“Even with these efforts, the incidents reported this week make it clear that there is still work to do. As the leaders in reproductive medicine, we will redouble our efforts to develop systems that will assure our patients and the public that these kinds of mistakes will not happen.

“The time has come for policy makers to sit down with the leading experts in the field to explore ways we can codify our standards to give them additional regulatory teeth.

“We will lead an effort involving our members, representatives of patient groups, policy makers and other stakeholders to work together to come up with solutions.”

http://www.nola.com/news/index.ssf/2009/09/oschner_lost_embroyos_couple_s.html

http://www.detnews.com/article/20090925/METRO/909250423/Clinic-s-attorney–Embryo-mix-up–will-never-happen-again-

http://www.wjla.com/news/stories/0909/663365.html

http://latimesblogs.latimes.com/booster_shots/2009/09/my-entry-1.html

India – First, the Health Ministry in India send ART bill to law ministry for vetting. The Bill is expected to find its way to the Union cabinet soon for its approval once it gets the Law Ministry’s nod.

The Bill is being introduced to regulate thousands of infertility clinics that have mushroomed in the country over the past several years. The Bill will define the establishment and functioning of these clinics.

Senior Health Ministry officials confirmed that the Indian Council for Medical Research (ICMR) has finalised the redrafting of the Bill and the ministry has sent the Bill to the law ministry for its opinion. After getting the approval from the Union cabinet, the Bill be introduced in Parliament for final seal of approval before implementing it in the country.

Sources said that the ministry had incorporated several changes in the final draft as it had received a large number of suggestions and comments from foreign countries, embassies, legal institutions, international institutions, experts and others on the draft bill. The government had late last year published the draft bill and had invited suggestions and comments from the public on the proposed bill. The Bill, drafted by an 11-member expert committee appointed by the health ministry, proposes to establish a National Advisory Board and state Boards to regulate and supervise the establishment and functioning of the infertility clinics in the country.

The bill, once it gets the Parliament nod, will provide for a national framework for the regulation and supervision of assisted reproductive technology (better known as infertility clinics) and matters connected therewith or incidental thereto. Apart from putting strict parameters for the establishment of an infertility clinic, the Bill also defines the minimum requirement regarding staff in an infertility clinic and minimal physical requirements for a clinic.

Again, still no laws in India, so parents beware. Plus, a suit has been filed to stop baby Manji from leaving the country. The Jaipur bench of Rajasthan High Court on Tuesday issued notices to the union and the state home departments asking them to produce the Japanese surrogate baby Manji in court within four weeks and explain why the baby was being allowed to be taken to Japan. A division bench of Justice R C Gandhi and Justice Guman Singh issued notices citing ambiguity regarding surrogacy in India. The baby is at present in a Jaipur hospital under the supervision of her Japanese grandmother.

The notice was issued on a habeas corpus petition filed by a Jaipur-based NGO, SATYA, alleging that in the absence of any surrogacy law in the country, the surrogate child born out of the sperm of a Japanese father could not be kept in the custody of her Japanese grandmother, Emiko.

http://www.pharmabiz.com/article/detnews.asp?articleid=51896&sectionid=

http://timesofindia.indiatimes.com/news/city/jaipur/Suit-filed-to-stop-Manji-from-leaving/articleshow/5079415.cms

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