Friday Legal Updates: Italy, British Columbia & Colorado – IVF & Its Consequences

Colorado – Amendment 62 causes concern for fertility doctors:
This November voters will have another chance to decide on an amendment that aims to define when life begins.

Amendment 62 is the second ballot initiative of its kind in two years.
But this time around opponents say the wording is just too vague.
A yes vote on amendment 62 will determine human life is created at conception and should have the same rights and protections as anyone that’s been born.

Supporters of the measure took to the corner of 12th and north Sunday.
While opponents haven’t been as vocal, many say the proposal is even more controversial this time around because it’s missing the word fertilization.

People in the medical community say it would present a road block for fertility doctors and patients, especially in the cases of in vitro fertilization where a woman’s eggs are fertilized inside a lab.

According to a new poll 50% of Colorado voters are still undecided on amendment 62.

Italy – The Italian Supreme Constitutional Court, which has one of the most restrictive laws regarding assisted fertility, is considering a review of the 2003 law. A referendum on the assisted fertility law was held in 2005 and although more people voted in favor of repealing the measure, a quorum was not reached and the vote was not valid.

Ignazio Marino, an MP in the opposition Democratic Party (PD) and chairman of a parliamentary commission reviewing the national health sector, said “the law was passed six years ago for purely ideological reasons, without taking into account the needs of unfertile couples, women’s health and possible advances in medicine. Today there exists a possibility to re-examine this law.”

The Constitutional Court was asked to give its opinion by a court in Florence which is hearing a case brought forwards by unfertile couple who demand to have access to assisted fertility therapy and not be forced to go abroad.

British Columbia – A couple from British Columbia, who discovered that the fetus their surrogate was carrying was likely to be born with Down syndrome, they wanted an abortion.

The surrogate, however, was determined to take the pregnancy to term, sparking a disagreement that has raised thorny questions about the increasingly common arrangements.

Under the agreement the trio signed, the surrogate’s choice would mean absolving the couple of any responsibility for raising the child, the treating doctor told a recent fertility-medicine conference.

Dr. Ken Seethram, revealing the unusual situation for the first time, said it raises questions about whether government oversight of contracts between mothers and “commissioning” parents is needed.

A bioethicist who has studied the issue extensively argues that contract law should not apply to the transaction, unless human life is to be treated like widgets in a factory.
Prof. Guichon speculated that courts likely would not honour a surrogacy contract, drawing instead on family law that would require the biological parents to support the child.

It appears no surrogacy contract has actually been contested in a Canadian court, however, leaving the transactions in some legal limbo.

Dr. Seethram’s presentation to the Canadian Society of Fertility and Andrology conference suggested the accord signed by the three in B.C. may have undermined the surrogate’s right to make decisions in a “non-coercive” environment. The surrogate, a mother of two children of her own, eventually chose to have the abortion, partly because of her own family obligations.

A former surrogate who helps parents and mothers make such arrangements said the parties should agree on what they would do if defects are discovered during pregnancy, ensuring they have the same views on abortion. If a dispute still arises, however, parents ought to be protected, said Sally Rhoads of”The baby that’s being carried is their baby. It’s usually their genetic offspring,” she said. “Why should the intended parents be forced to raise a child they didn’t want? It’s not fair.”

In some U.S. jurisdictions, in fact, parents can even sue a surrogate to recoup their payments if the woman insists on going ahead with a pregnancy against their wishes, Ms. Rhoads said.

Disputes are rare here, but she said it is usually surrogates who end up feeling most aggrieved. She recalled one case where the mother conceived twins, the parents asked for a procedure to reduce the number of fetuses to one, and the whole pregnancy was inadvertently lost. In three other Canadian cases, surrogates are now raising the babies after the commissioning couples got divorced and backed out, Ms. Rhoads said.

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