The Washington Post (Brulliard, Washington Post, 9/26) reports that a debate between the South African Zulu tribe and the government has arisen over the traditional practice of virginity testing. The virginity tests, usually performed by elderly tribal women, involve inspecting the genitals of girls for torn hymens. Advocates of the practice said the high prevalence of HIV/AIDS in the country makes the testing important because it serves as a "culturally sanctioned abstinence campaign."

Clearly the Government chose individual rights over those which are culturally derived when it banned the practice last year.

Is it me or have the tribal elders missed the point? If the hyman is broken through sexual activity, the "culturally sanctioned abstinence campaign" has already failed and the transmission of HIV/AIDS has already occurred. Its like monitoring the grounds with a Geiger counter to prevent an atomic weapon from being set off.

The problem with these programs is that they conveniently ignore male participation in the activity. If males chose to not participate in sexual behaviors with virgins, there would be no torn hymens. If males would not catch HIV/AIDS they could not pass it to their partners.

There is a cultural basis against females in many societies which subjects them to these types of activities and conveniently ignores their male partners. Paternalism is alive and well. Regulations directed to reducing unwanted pregnancies and or sexually transmitted diseases will fail unless the government and the culture underlying the government recognize that both partners have a responsibility to act appropriately.

Did you know that Mississippi and Florida are the only two states that forbid gays from adopting? I do not do adoptions for personal reasons. Nonetheless, the ban impacts the way I approach gestational surrogacies for single men and women.

Having said that, it appears Florida is moving away from its staunch prohibition against gay adoption. Just recently, a South Florida trial court judge ruled the 31-year-old gay adoption ban as unconstitutional and a gay foster Dad was allowed to adopt the learning disabled boy he's raised for the past 7 years.

The judge ruled that the adoption ban singles that group out for punishment.  The judge stated that "[c]ontrary to every child welfare principle the gay adoption ban operates as a conclusive or irrebuttable presumption that it is never in the best interest of any adoptee to be adopted by a homosexual." As Michael Allen, a constitutional professor at Stetson University in St. Petersburg, stated "Cracks begin to develop in legal doctrine even if it has no effect as precedent and it is not repeated someplace else."

For all you gay, prospective adoptive parents waiting in the wings, I am ecstatic for you.  Co-counsel in this case, Elizabeth Schwartz of Miami, is a friend of mine. Give her a call.

So I was interviewed a while back for The New Atlantis by Cheryl Miller, a respected blogger on reproductive technology issues.  Take a look. 

Monday, August 25, 2008

How did you become interested in reproductive law? Are there many attorneys working in this field?

RT: Generically, most attorneys get involved because they've had some contact with it. A lot of us were adoption lawyers, who may or may not have dealt with infertility issues. I've never had an infertility issue, but some years ago I was helping a group of clients put together an infertility company and as I grew to understand more aspects of infertility, I started dismissing more parts of my practice. Now, I just focus on infertility.

In the state of Florida, there's only about eight of us. Most of them came out of the adoption area, and added this on their practice. Nationally, I seem to run into the same people over and over again.

I'm a science geek. It's interesting being involved in an area where the technology seemingly changes day to day, and by changing, it affects the way that we as attorneys have to look at how this technology is affecting people.

Is there a typical day in your practice? If so, what is it like?

RT: Thankfully, no there's not. Part of the day could be wrapping up a blog entry for my website?I'm looking at something coming out of the news and trying to extrapolate and challenge people to think about the future. Part of it is educational?looking at Infertility Answers and seeing what information could be added to the website. The biggest bloc of time is talking to clients and filling in the gaps with what they might have heard from their agencies and their doctors.

The joke is that we all, in our own ways, become psychologists, in trying to create a reasonably stable, predictable framework for people who have lost control of something that most of the population takes for granted.

How do you find clients? What is your client base like, and has it changed over the years?

RT: The majority of my clients are referred either by agencies that I've worked with in the past or reproductive endocrinologists. I have a wide range of clients. I'm getting more and more people for the U.K. and the European Union, who are fed up with either waiting or with the rather conservative laws. Instead of waiting for three, five, or seven years, they can come to the U.S. and get a process up and running within months.

I've seen an increase over time in singles, be they male or female. For every five single males I'm working with, there might be one single female.

Why is it important to have an attorney?

RT: I think it's foolhardy to move forward with something important as a child and not feel assured that everyone has been represented by an impartial attorney. Conflicts of interest are not taken well by the courts.

We've learned over time and experience, both positive and negative, how to create a larger and larger safety net for intended parents and gestational carriers. The more progressive states have figured this out already and created statutes.

How are laws among states different? Are there advantages to contracting for a surrogate or egg donor in a particular state?

RT: When you have a statutory framework, it removes a lot of the unpredictability in the process that might exist in other states. In Florida, surrogacies and egg donations are based on the intention of the parties?everyone intends for a result to occur. The court can then rely on that intention to give you what you want, for example, a birth certificate with your name on it.

In a non-statutory state?even one where you have a very pro-gestational surrogacy environment like California?you're dealing more with the best interest of the child as the basis for how the courts are going to look at the relationship between the carrier and the parents. When you're an intended parent and you've spent thousands of dollars, you want as much predictability as possible.

If you don't like what's going on where you're at, you vote with your feet. Here in the state of Florida, we can easily assure our clients that they're going to walk away with a birth certificate. But if we take a ride into Georgia, where they go with the best interest of the child standard, that child is not guaranteed to end up in your home.

How do you handle tensions betweens intended parents and surrogates/donors?

RT: There's always tension. I like to say to clients that the relationship over the year is going to wax and wane. Some days everyone is going to be nice to each other, and some days you aren't even going to want to pick up the phone when you know it's the other person. No one really worries about that unless it becomes adversarial. If it becomes adversarial, the team approach kicks in: the agency, the doctor's office, and the attorneys have a role.

What should people look for in a reproductive attorney?

RT: You want to be confident that the person has done this before. I get a lot of, "My uncle did adoptions 20 years ago..." or "My neighbor is a family attorney..." Being down in the trenches?talking to the judges who themselves are learning this stuff, resolving problems that arise in the course of a pregnancy, and going to the conferences?those sorts of things give you the ability as an attorney to do two things. First, it gives you the ability to write up a generic contract. But more importantly, it gives you the ability to anticipate the problems that may arise?either in your state because of the way your laws are set up or between the parties because of divergent personalities.

What's the best part of being a reproductive attorney?

RT: I think the hallmark of this area of the law?which I've not seen anywhere else and just reinvigorates me?you're able to provide an avenue of hope to people who not too long ago had no hope whatsoever. Unlike most areas of law, this always seems to be a regular win-win situation for everyone. The gestational carriers are doing something they absolutely want to do. The intended parents are walking away with the one thing they couldn't have but for the interaction of all the other professionals.

The best part of my week is when a client calls and says, "Hey, we're pregnant. Our due date is such-and-such..." You can hear the gratitude and, more importantly, can actually participate in someone's joy. 

Cheryl Miller

New Atlantis blogger Cheryl Miller is a 2007 Phillips Foundation Journalism Fellow and the editor of Doublethink magazine. She can be reached at cmiller [at] thenewatlantis [dot] com.

Currently, United Kingdom fertility treatments involve transferring two embryos into the womb. Consequentially, 1 in 4 IVF births in the UK results in twins or triplets, compared to 1 in 80 births following natural conception. Eighty seven percent of those IVF related multiples occur in the first cycle of treatment with women younger than 37.

Clinical follow up reveals that multiple pregnancy is associated with miscarriage and death, prematurity and low birth weight in the infant. Further, it can lead to long term health problems for children, such as cerebral palsy, and risks to mothers such as pre-eclampsia, diabetes and heart disease. Of course, a major concern to the government is the increased strain on the health care system from IVF related morbidity and mortality. The obvious response to reduce IVF multiple pregnancy rate is single embryo transfer.

So now the British Fertility Society (BFS) and the Association of Clinical Embryologists (ACE) have issued new guidelines in the journal Human Fertility to help UK clinics introduce an elective single embryo transfer (eSET) policy for IVF treatment. The guidelines also set out that eSET be used for under 37 year old women who are in their first cycle having high quality embryos.

The anticipated problems include a need for maximizing an egg harvesting and frozen replacement program, establishing a standardized set of embryo grading and reeducation to allow patients accept eSET without feeling their chances of success are being compromised.

I have a sneaking suspicion that this paradigm shift will be coming to an IVF Clinic in your area soon.