Last month’s legal update focused entirely on events happening here in the United States.  This month’s legal update looks out to the Middle East, India, and Canada.

Recently, a Canadian couple tried to return to Canada after a trip to India to pick up their twin children born to an Indian surrogate.  The couple, both doctors, had contracted with a woman in India to carry children conceived from the couple’s own ova and sperm.  In order to obtain travel documents for the twin children, the Canadian couple visited the Canadian High Commission in India.  Medical officials back in Canada urged the Canadian High Commission to “fast-track” the paperwork so that the new parents and children could return home quickly.  Against the wishes of those medical officials and the new parents, the Canadian High Commission ordered DNA tests.  The DNA test results showed that the twin babies were not related either to the Canadian couple or to the Indian carrier.  There is no further information available at this time about how this mistake came about or the identity of the twin children’s genetic parents.  The Canadian couple left India without the twin children and the twin children may spend their childhood in an Indian orphanage.

Homosexual individuals and couples living in Israel are increasingly entering into surrogacy arrangements with surrogates outside their country in order to build their families.  Currently, these intended parents look primarily to India and the United States for their surrogates.  In response to this trend, the Israeli Interior Ministry has issued a set of guidelines establishing a process by which these new parents can re-enter Israel with their newborn children.  In the case of same-sex male couples, these guidelines allow the biological father to be declared the legal parent and the other partner, the non-biological parent, to complete an adoption in Israel in order to be recognized as a legal parent.  A DNA test must be completed on the baby prior to re-entry into Israel.  In the United States, no court order is necessary to have the DNA test administered.  However, in India, an Israeli court order is necessary for the DNA test to be performed, causing many children and their new parents to remain stuck in India for a period of time after birth.

Until recently, Dan Goldberg was living in Mumbai and caring for his twin sons, Itai and Liron, who were born to an Indian surrogate in March of this year.  The necessary DNA testing was delayed preventing Mr. Goldberg from obtaining health insurance for the children or returning with them to Israel.  In an interview, Mr. Goldberg expressed concern that he had not been able to have the children vaccinated and, without insurance, could not afford the cost of regular medical check-ups for the newborns.  Moreover, his extended and unanticipated stay in India had depleted his savings and left him asking strangers for financial assistance.  Over the course of four years, including two failed in vitro fertilization procedures, he had spent more than $45,000 in an effort to create his family.

Mr. Goldberg was one of several homosexual couples and individuals who experienced difficulty obtaining cooperation from the Israeli Family Court in Jerusalem.  In particular, several men filed separate appeals after one judge, Judge Philip Marcus, refused to issue the orders for DNA testing.  Judge Marcus stated that he lacked the authority to issue such orders.  In Mr. Goldberg’s case, he filed an appeal with the Jerusalem District Court.  The District Court agreed that Judge Marcus had authority to issue an order for a paternity test, appointed a guardian for the twin children, and referred the case back to Judge Marcus.  Judge Marcus then asked the Jerusalem District Attorney’s Office for its opinion as to whether any legal obstacles existed which would prevent him signing an order initiating DNA testing.  The District Attorney’s Office replied that no legal obstacles existed.  Judge Marcus relented and, after several months of waiting, Mr. Goldberg has been able to return home to Israel with his twin children.

In another story out of Israel, nine couples were informed by the Assuta Medical Center in Tel Aviv, Israel that a power outage at the facility resulted in damage to the couples’ fertilized eggs.  The damage was severe enough that the fertilized eggs cannot be used.  The power failure was caused by an independent electrical engineer who was conducting a test of the facility’s power system.  The power failure occurred at Assuta Medical Center’s campus in Ramat Hahayal which was opened a year ago and is considered by many to be the most luxurious private hospital in Israel.

Finally, this month’s legal update ends with some good news for infertile couples living in the Province of Manitoba, Canada.  Effective October 1, 2010, the government in the province is offering a forty percent tax credit for eligible fertility treatments that cost up to $20,000 per year, or a maximum annual credit per couple of $8,000.  Combined with previously existing tax credits, couples in Manitoba could have up to two-thirds of their fertility treatment expenses reimbursed to them. 

By: Melissa B. Brisman is an attorney who practices exclusively in the field of reproductive law and is considered by her peers to be a leader in her profession.  Ms. Brisman’s experience and qualifications are unparalleled.  She employs an experienced and qualified staff of legal and administrative professionals and is licensed to practice law in Massachusetts, New Jersey, New York and Pennsylvania.  Ms. Brisman has a practice, Melissa B. Brisman, Esq., LLC, located in Montvale, New Jersey, offering a full range of legal services in connection with gestational carrier arrangements, ovum, sperm, and embryo donation, and adoption.  In addition, Ms. Brisman is sole owner of Reproductive Possibilities, LLC, an agency that facilitates gestational carrier arrangements, and Surrogate Fund Management, LLC, a company that manages escrow in connection with reproductive arrangements.

By: Lauren Murray is an attorney licensed to practice in New York and New Jersey.  She is an associate at the firm, Melissa B. Brisman, Esq., LLC, and focuses her practice solely on transactional and litigation work associated with reproductive law.  Ms. Murray can be reached at .