Fertility Clinic Makes Expecting Mother an Accidental Surrogate

Couples all over the nation find that they are unable to conceive naturally and must turn to fertility clinics for help. No couple expects that when they learn they are going to have a child, it’s not going to be their own! This was the sad reality for Carolyn and Sean Savage of Sylvania, OH, as reported by the New York Post.

After many miscarriages and heartbreaks, the Savage’s finally turned to in-vitro fertilization in 2009. Carolyn soon learned that the process had worked, but was told that it would be her last pregnancy due to prior complications.

Nearly 100 miles away, Shannon and Paul Morell of Troy, MI were also employing in-vitro fertilization as a means of adding an addition to their family. They would soon receive the devestating news that their embryo’s had successfully been implanted… but within Carolyn Savage.

…they got an urgent call from their fertility doctor.

“Yes.”

“I’m so sorry, Shannon, but there’s been a terrible incident in our lab,” he said. “Your embryos have thawed.”

But it didn’t end there.

“Your embryos were transferred to another woman,” the doctor said.

Shannon was stunned. “Is she pregnant?” she managed.

“Yes.”

Shannon, whose maiden name was Savage, had lost her embryos to Carolyn and Sean Savage. The lab accidentily filed the Morell’s embryo’s in Shannon’s maiden name, and provided them to another couple.  Carolyn Savage had been robbed of the chance to ever carry her own child again.

Having also been informed of the mix up, Carolyn Savage was presented with two options: she could terminate the pregnancy or carry the child to term and give it to it’s biological parents after the birth. Due to strong religious beliefs, Carolyn decided to carry the baby to term and return it to it’s parents afterward.

The Morell’s and the Savage’s agreed to a formal meeting April 27, two months into the pregnancy. Carolyn and Shannon agreed to remain in contact throughout the pregnancy and decided upon the name, Logan, once the baby boy’s gender was confirmed.

On September 24, 2009, baby Logan Savage Morell was born at Mercy St. Vincent Medical Center in Toledo. Shannon and Paul drove to the hospital immediately after hearing that Carolyn was in labor, still saddened that another woman was giving birth to their baby boy.

“I wouldn’t say jealousy, but there was sadness that I couldn’t be there for my son and experience the first moments of his birth. And there was guilt that another woman was happy to go through a C-section for me,” Shannon said.

The arrival of baby Logan presented many emotions for both the Savage and the Morell families. The Savage’s made it clear early in the pregnancy that they expected nothing more than a few updates throughout Logan’s life.

“Of course, we will wonder about this child every day for the rest of our lives, and we have high hopes for him,” Carolyn said. “But they’re his parents, and we’ll defer to their judgment on when or if they tell him what happened and any contact that’s afforded us.”

CNN interviewed both Carolyn and Sean Savage; the couple revealed their feelings regarding the entire experience.

Since Logan’s birth, the families have remained in contact. Over Christmas, the Morell’s and baby Logan made the 100 mile journey to visit the Savage’s so that baby Logan could finally be introduced to his surrogate family.

Shannon Morell acknowledges that the Savage’s will always have a role in Logan’s life.

“I think for the rest of his life, he should always acknowledge [Carolyn], on Valentine’s Day, Mother’s Day. He should always think of her because if she hadn’t done the right thing, he wouldn’t be on this earth,” Shannon said.

The couples hope to one day be able to explain the complicated story of how Logan came into his wonderful existence.

So what happens now? The Savages’ still have five frozen embryos; unfortunately, Carolyn will be unable to carry another child. The couple is looking into a gestational carrier in hopes to still make an addition to the family.

In-vitro fertilization has led to over 40,000 successful live births since it’s first record of success in 1978. When learning of success, can you even imagine the emotional effects of being told that your success will result int he birth of someone else’s child? What further actions can be taken to prevent these ghastly mix ups?

Fetal Pain and Suffering: New Nebraska Abortion Law Sparks Debate – When Does a Fetus Feel Pain?

An online article posted yesterday in NewScientist raises some interesting issues that will no doubt be the subject of much debate in days, months and years to come – does a fetus feel pain and if so, when? The true focus of this article was the recent (April 13, 2010) passage of new legislation in Nebraska, which essentially prohibits abortions after 20 weeks.  Ostensibly, Nebraska has become the first state to ban abortions on the basis that fetuses feel and appreciate pain.

The law, according to a report in LifeSiteNews.com, goes into effect on October 15, 2010, and has, at a minimum, the following legal implications:

Abortionists who break the law would face a Class IV felony charge, which carries a penalty of a five year maximum prison sentence, $10,000 fine, or both. Women who obtain abortions of their unborn children would face no criminal penalties.

The bill would allow women and even the fathers of aborted unborn children to sue and seek damages from abortionists who violate the law.    

I say “at a minimum” since there are other civil law implications arising from  the rationale behind this legislation. One of those issues often litigated throughout the various courts of the United States is a parent’s right to sue for conscious pain and suffering for fatal or non-fatal injuries to a fetus.  That analysis is beyond the scope of this blog. What is of present importance is the so-called ‘science’ behind this legislation and the response of the scientific community that may well have far-reaching implications in the field of civil litigation.

Before engaging in this discussion, note well: it is not my intention (or desire) to become embroiled in the abortion issue.  That is not what we do in our firm.  It is the state of  science that intrigues me in terms of how that may have relevance to what we do – litigate civil cases involving matters such as fetal death in utero or death or injuries sustained by fetuses due to the negligence of third persons (e.g. medical malpractice, catastrophic automobile accidents and the like).

Apparently, the ‘scientific basis’ for this Nebraska legislation is the research of Kanwaljeet “Sunny” Anand, a professor at the University of Arkansas for Medical Sciences.  Dr. Anand testified in 2004 on the federal partial birth abortion ban.  He provided his opinion testimony that after 20 weeks gestation, an unborn child would experience “severe and excruciating pain” from an abortion.

Dr. Anand’s opinions are not without numerous critics.  What is significant, however, is that even many scientists, who challenge Dr. Anand’s opinions that 20 weeks of gestation is the point at which a fetus can feel and appreciate pain, do accept the proposition that there is a point in the life of fetus where they can and do appreciate pain and suffering.

Dr. Mark A. Rosen, the Director of Obstetrical Anesthesia at UCSF’s Fetal Treatment Center, in 2005 co-authored an article in JAMA (abstract) that some refer to as the ‘seminal review on fetal pain.’

One of the opinions expressed in that paper defines what is at the center of this discussion – what is meant by ‘perception of pain’?

Pain perception requires conscious recognition or awareness of a noxious stimulus. Neither withdrawal reflexes nor hormonal stress responses to invasive procedures prove the existence of fetal pain, because they can be elicited by non-painful stimuli and occur without conscious cortical processing.

In the NewScientist posting, Dr. Rosen provided rebuttal statements to the premise inherent in the Nebraska legislation that fetal pain occurs at 20 weeks of gestation.

Dr. Rosen states, “The first brain pathways associated with pain perception “are not complete before approximately 29 weeks of gestation”, so although fetuses develop brain wiring from about 23 weeks onwards, the connections are not there to enable them to experience pain.”

Whether it is at 20 weeks or 29 weeks, one common principle exists – according to a number of scientists, there is a point prior to birth that a fetus can appreciate pain from a medical-scientific standpoint – the ‘wiring’ is in place. If this is true scientifically, how does this affect the right of recovery by a parent or the estate of an injured fetus in those jurisdictions permitting conscious pain and suffering damages for injuries to a fetus?

For instance, if a fetus is at 35 weeks gestation and by all other accounts is totally viable with ‘the wiring in place,’ does that fetus and/or the parents have a claim for conscious pain and suffering should injury to the fetus occur?

Does any jurisdiction recognize the right of a fetus to recover for injuries sustained in utero?  Absolutely – it just depends which jursidiction(s) you are considering.  For example, the District of Columbia, in 1946, was the first jurisdiction to recognize the right of a fetus to bring a separate cause of action (Bonbrest v. Kotz). This was an action for damages being brought on behalf of a fetus allegedly injured ‘in the process of being removed from its mother’s womb.’ “Under the civil law and the law of property, a child en ventre sa mère is regarded as a human being from the moment of conception.”

In 1984, the D.C. Court of Appeals, relying in large part on Bonbrest, stated:

Although this court has never considered this question, we note that every jurisdiction in the United States has followed Bonbrest in recognizing a cause of action for prenatal injury, at least when the injury is to a viable infant later born alive.

Note the key conditions: “…when the injury is to a viable infant later born alive.

This posting is already perhaps too long – this topic is multi-faceted and more the subject of a treatise, white paper or a law review article, not a blog.  What is apparent (at least to me) is that this new Nebraska legislation will undoubtedly rekindle the fires of fascinating litigation about fetal rights, fetal and parental causes of action and fetal pain and suffering claims. Stay tuned – there will undoubtedly be much more to come.

Obstetricians’ Opinions Divided Over Umbilical Cord Blood Banking: Some Doctors Refuse to Cooperate

Earlier this week, ABC Australia posted a fascinating report on a modern practice by parents paying significant sums of money to store  (or bank) their baby’s umbilical cord blood.  While cord blood has been used widely by patients (not related to the donor) in other medical settings such as bone marrow transplants, this new practice is designed to help the donor babies later in life for treatment of conditions that they hope science will discover meaningful solutions for in the coming years.  According to the report, “The hope is that the young, versatile stem and immune cells in the blood could eventually be used to repair damage caused by anything from cystic fibrosis to a heart attack with no risk of rejection.”

What is occurring, however, is that not all physicians are accepting of this concept.

The subject of this news story, a West Australian mother, Barbara Ayling, has cerebral palsy.  This is one of the conditions that parents and researchers are hoping will prove to be treatable through stem cell research using umbilical cord blood.  Ms. Ayling and her husband had made arrangements to have their baby’s cord blood stored through the age of majority.  The plan went awry when the obstetrician who agreed to participate in this collection and storage process was unavailable and the delivery was performed by a different doctor who refused to carry out the procedure.

“It’s a choice that I have the right to make. Apart from anything else, I’m spending a phenomenal amount of money to do this,” Ms Ayling said.

“I’ve made a very informed decision and I would have liked that to have been more respected.”

The doctor declined to be respond when asked to do so by the station.

Further details about this banking program were provided by an online video.  The reporter asks her audience the opening question: “How much would you be willing to pay to guarantee your child access to a yet unproven but potentially life-saving cure for potential disease?”  It turns out that at least in Australia, that price tag varies between $3,000 to $6,000.  Unfortunately for some, this ‘investment’ in their child’s future health went the way of many investments – it tanked when the company storing the blood went out of business.

It is clear that this practice is not restricted to Australia.  More to the point, there are a number of companies in the United States ostensibly offering parents the same banking of their child’s umbilical cord blood.  For instance, a company called Alpha Cord, which according to its website has been in business since 2002, promotes the fact that it is different from other cord blood banking operations in the United States since it provides parents with an additional layer of security for their investment.

In the unlikely event the bank you’ve chosen should dissolve, we will move your cord blood to another licensed and accredited facility in our system. If you bank directly, there is typically no automatic or seamless provision for an adverse event such as this. (Source Alpha Cord website’s FAQ’s)

Alpha Cord provides its site’s visitors with videos about the process, purpose and benefits of storing a baby’s umbilical cord blood cells.  The benefits range from future transfusion needs to potentially successfully treating later disease and/or injuries.  Alpha Cord advises that currently hundreds of thousands of parents have elected to store their baby’s cord blood.  In its comparative pricing chart, it compares its reduced price (ostensibly due to networking discounts) and parents are offered a geographical locator for participating banks and then an online calculator with options for how many years one may want to store their child’s cord blood.

60 Minutes Picture of Keone Penn cured by stem cell treatment

For example, if a parent were to store their child’s cord blood in Utah, the initial fee would be $775; whereas, storage in Chicago, New Jersey or Colorado would cost $1,395.  Annual storage fees for Alpha Cord are $115 with a 20 year storage plan amounting to $2,180.  If you would like to get a ‘comparative shopping list,’ Alpha Cord provides such a chart.

Given the unwillingness of the Australian mother’s obstetrician, parents planning to utilize this service might be well advised to confirm that their obstetrician and those who might be covering for him/her are on board with the collection process.  If  you have had experience with this or similar programs but have encountered resistance by your obstetrician or hospital, sharing your experiences might be of great value to others considering banking of their child’s cord blood.

Study: Screening Tools Accurately Identify Postpartum Depression – Focus Group: Urban Minority Moms

In a study led by the University of Rochester Medical Center and published online by the journal Pediatrics, researchers have determined that there is a high degree of accuracy in making the initial determination of postpartum depression (“baby blues”) in urban, minority women when using three depression screening tools.   This research was funded by the National Institute of Mental Health 

This study is reported in a recent article posted in Medical News Today.

Many women experience the so-called “baby blues.” When the feelings persist or worsen it may be clinical depression. The symptoms include insomnia, persistent sadness, lack of interest in nearly all activity, anxiety, change in appetite, persistent feelings of guilt, and thoughts of harming oneself or the baby. Postpartum depression affects up to 14 percent of new mothers in the United States, with higher rates among poor and minority women.

These screening tools have previously been evaluated but this is the first time they have been tested with a group for whom there is not much data – low-income women, especially African-American women, said Linda H. Chaudron, M.D., associate professor of Psychology, Pediatrics and of Obstetrics and Gynecology.

The three screening tools being evaluated were the Edinburgh Postnatal Depression Scale, the Beck Depression Inventory II and the Postpartum Depression Screening Scale.  By clicking on any of the links we have supplied to these tests, the reader can readily see just how simple they are and how quickly they can be administered (as reported – 5 minutes or less).

These screening tests are just that – screening mechanisms.  Healthcare providers dealing with new mothers should be mindful of using these tools and thereby be in a position to help these mothers during this difficult time in their lives.  This is not something restricted to obstetricians  – it is for all healthcare providers who come in contact with any new moms, whom they suspect may be suffering from “baby blues.”  Don’t assume all is well on the home front – ask!  It won’t take much time, but it could provide much needed help for your patients.