The latest scientific technology that allows human embryos to be frozen and used years – even decades — after fertilization to produce offspring is raising legal questions about the rights of all involved.
Among the many questions that have been recently considered is whether a child born by in vitro fertilization (IVF) can be the beneficiary of court-ordered child support, especially when the father isn’t informed of the pregnancy. So far, trial court rulings in many states have been inconsistent on the matter, leaving it likely that the issue will be taken to higher courts.
The question came up in a recent Connecticut case, part of what lawyers say is the beginning of a growing number of frozen embryo-related litigations. Cases of first impression on the subject of reproductive law have been considered recently in Pennsylvania and Massachusetts courts as well.
As IVF procedures are becoming increasingly common, and the rate of divorce shows no signed of ebbing, the issues presented in Caroland Lewis v. Aaron Lewis will continue to be relevant in the foreseeable future, said Jon T. Kukucka, of Budlong & Barrett in Hartford. “I think as more people get this type of treatment, and the number [of embryos] are stored for a period of years, you’re likely to see these legal issues being raised again,” Kukucka said.
The Lewises marriage was dissolved by the Superior Court in 2008. As part of the divorce agreement, the parties agreed that embryos that were created and stored frozen during the marriage would be destroyed.
But after the marriage ended, Caroland Lewis had one of the embryos and a child, also named Aaron, was born on April 29, 2011. Afterwards, she filed a motion with the court asking her ex-husband for child support payments. The adult Aaron Lewis responded by seeking to have his ex-wife sanctioned for contempt of court. She used the frozen embryo to become pregnant without his approval, Lewis argued, and therefore, he could not be financially responsible.
Lewis, who is blind from a gunshot injury that occurred several years ago, is a pastor and runs a nonprofit to raise awareness about the dangers of street gangs. He was ordered to pay about $332 a month in child support, even though he relies on Social Security disability income, in the amount of $1,700 per month.
Lewis appealed the child support award of Family Court Magistrate Harris Lifshitz, arguing it was unjust and in violation of an agreement he had with his ex-wife that the embryos would be destroyed.
Kukucka and three others from his firm, including a clerk and two lawyers, agreed to handle Lewis’ appeal to the Superior Court of the family magistrate’s decision. “It was a pro bono matter, we were referred to the case through Greater Hartford Legal Services,” Kukucka said.
At first, Kukucka said, it appeared that the frozen embryo issues in the case have been precedent-setting in the state. Kukucka and his colleagues, Campbell Barrett, Laura D’Addabbo, and Felicia Hunt, began preparing arguments. All of the issues, including their client’s position that child support should not be awarded because of a violation of the agreement that the embryos would be destroyed, “were briefed in advance,” he said. They were prepared to argue the child support order was not legal, because their client was not aware of the steps taken to start the pregnancy.
But there soon appeared to be factual problems with their client’s story, which pushed the legal argument to the background. Kukucka explained that in the appeal of a magistrate’s order, new evidence can be considered, unlike a typical trial court appeal.
Caroland Lewis, who was represented by the Brown Paindiris & Scott law firm, presented evidence that her former husband had actually gone to the doctor’s office with her when the embryo was implanted. “His testimony was that he went with her to contest the bill,” Kukucka said, but that didn’t convince the judge.
As a result of that testimony, Superior Court Judge Leslie Olear found the evidence presented “clearly proved that the plaintiff by his actions consented to and participated in the implantation process.”
Olear acknowledged in her decision that both parties “knowingly acted contrary to the terms of the court order [agreement to destroy the embryos] and doing so was not appropriate or advisable.” But there was nothing unlawful in the actions of Caroland Lewis, Olear said.
Kukucka said based on the overwhelming evidence that Lewis was aware the embryo was going be used by his ex-wife to produce a child, including testimony from his mother, there was no reason to appeal the decision.
Even though in the Lewis case, Kukucka said, “the court was able to avoid the issue” of what a father’s rights are with regard to frozen embryos being used without their permission, “it’s just a matter of time before another court” addresses that type of claim.”
Kukucka said the fact pattern in the case, a divorced couple who has an agreement to destroy a frozen embryo ends up having a child, is a “relatively rare” event. But still, he said, with reproductive technology, more people are using in vitro fertilization.
Last year, the Massachusetts Appeals Court looked at a similar question regarding child support following use of in vitro fertilization. The court ruled that a man whose estranged wife conceived twins through IVF would have to pay child support, even though the children were not his, and even though the couple had a signed agreement that he would not be financially responsible for the children.
In its decision, which upheld a 2009 family court ruling, the appelas court ruled that because Chukwudera Okoli gave his consent to Blessing Okoli’s in vitro fertilization with donated sperm and eggs, he is the legal father of the children born in 2003. The court said the signed agreement was invalid.
Connecticut lawyers said that in addition to divorce, one growing topic in the realm of frozen embryo law has been the question of death benefits.
Steve Rubin, an estate planning lawyer in Cheshire, said the patchwork of decisions in state courts across the country will likely wind up with the Supreme Court weighing in on the rights and responsibilities of surrogate parents and sperm donors.
Child support is hardly the only issue in question. In his practice, the biggest concern Rubin hears from clients who have used in vitro fertilization is whether special language must be used in wills and trusts to ensure such children can inherit money.
Under the common law, traditionally, “children born out wedlock were considered filius nullius, or children of no one, and as such could not inherit from either parent’s estate,” Rubin said.
Another question that comes up in estate planning matters, is who will pay for storage of frozen embryos, if one or both parents die. “We haven’t had a lot of case law in these areas yet, so there really is a lot of gray area in the law,” Rubin said.
The legal system has not yet established a set of clear standards on how to handle such cases, and the results have been mixed. “We’ve got a patchwork of laws,” Rubin said.
Back in July, a federal judge made a direct appeal to Congress, seeking an amendment to the Social Security Act that might unify the way survivor benefits are distributed in courts across the country. As it stands, children who were conceived in vitro after the death of a parent can collect benefits only if they qualify for them under the intestacy laws of the state in which the parent died, the U.S. Supreme Court decided in a case that it remanded to the U.S. Court of Appeals for the Third Circuit last year.
On remand, the Third Circuit ruled that twins born 18 months after the death of their father in Florida would not be eligible to collect Social Security survivor benefits. That ruling is a reversal of what the same three-judge panel of the court had ruled in its initial opinion in 2011.
Rubin said it will be a matter of time before the courts sort out the legal issues involving IVF children. “The courts of all states will have to reach some kind of agreement,” he said, “as to what the rights are for parties in frozen embryo cases, from the child to the parent.”