Last week, following significant controversy, the Senate confirmed Sarah Pitlyk as a federal judge for the U.S. District Court for the Eastern District of Missouri. Before being confirmed, Judge Pitlyk had a prestigious career which included a Yale law degree, a Fulbright Scholarship, an appellate clerkship (with now Supreme Court Justice Kavanaugh), and work in BigLaw.
However, Pitlyk’s career has also involved work directly opposing assisted reproductive technology (my particular specialty of law). Pitlyk was Special Counsel for the Thomas More Society, which has actively labored to oppose surrogacy, as well as in vitro fertilization (IVF) generally, arguing that cryopreserved embryos should be fully recognized as human life. Although Judge Pitlyk was representing her client at the time that the Thomas More Society made these arguments, Judge Pitlyk has publicly indicated she shares the beliefs of her former employer regarding assisted reproductive technology, and full legal personhood for embryos.
Understandably, her nomination did not go unnoticed. Pitlyk was unanimously rated “unqualified” by the American Bar Association for her lack of trial experience, and specifically, because her legal experience had not included ever trying a case, examining witnesses, picking a jury, or participating in a criminal matter. Unsurprisingly, opponents of Judge Pitlyk’s nomination thought that not having these experiences would be problematic for a trial court judge.
Separately, a number of organizations connected to fertility issues — including both RESOLVE: The National Infertility Organization and the Academy of Adoption and Assisted Reproduction Attorneys (AAAA) — opposed Judge Pitlyk for her stance on assisted reproductive technology.
Margaret Swain, who is an AAAA representative attorney, argued that Pitlyk’s “writings appear to be based on ideology and misinformation.” Swain explained that AAAA strongly opposed the lifetime appointment on a federal court of “a person who holds views not based in science or law, and who would prevent those with infertility from receiving care they need.” Swain also explained that Judge Pitlyk’s writings had leveled insults at families who do go through surrogacy by implying that those families were creating a diminished respect for motherhood and the bonds between a child and mother.
How Much Does Pitlyk’s Confirmation Matter?
During her confirmation process, Judge Pitlyk committed to keeping her personal beliefs out of the cases she decides. And while, frankly (or at least hopefully), it’s unlikely that any specific federal judge — particularly trial court judges, who are bound by appellate and Supreme Court precedent -– will set policy on these issues. Nevertheless, there is cause for concern, (1) because cases of first impression do, occasionally, reach a federal court, and (2) because ART law is still in development, and in some cases, there might not be much to go on besides a judge’s “personal beliefs.”
We have seen a number of issues arise when a judge’s personal beliefs clashed with assisted reproductive technology-issues and the law was less than clear.
An Orphaned Child. One of the more striking cases on the topic is that of Baby Jacob, the surrogate-born child of Jay Timmons and Rick Olson. Timmons and Olson had been through the surrogacy process before with their two daughters, and were not expecting complications in the surrogate’s home state of Wisconsin. While Wisconsin does not have specific statutory protections for surrogacy, a state supreme court ruling had recognized surrogacy agreements as legitimate, and Wisconsin judges had historically granted parental rights to the intended parents in a surrogacy arrangement without issue.
Unfortunately for this family, their case was appointed to an anti-surrogacy (or perhaps, more accurately, anti-LGBTQ) judge named James Troupis. Despite the case being uncontested –- all the parties agreed Timmons and Olson were the child’s parents -– Troupis severed the gestational carrier’s presumed parental rights and refused to grant Timmons and Olson parental rights. This left Baby Jacob with no parents — an orphan.
Only after a painful year, and half a million in legal bills, was the case resolved when Troupis stepped down from his judgeship to run for office. The case was then reassigned and resolved with the legal acknowledgement of the fathers’ parent-child relationship.
Anonymous Sperm Donor Deemed Legal Parent. In another distressing case, two years ago a Mississippi state court judge determined that the nonbiological mother of a child born to a same-sex married couple that turned to anonymous sperm donation to conceive was not a legal parent of the child. Instead, the judge ruled that the anonymous sperm donor the couple used was a parent of the child. Therefore, the judge determined, the child already had two legal parents (the biological mom and the anonymous sperm donor), and therefore the nonbiological parent — who had raised the child for the past five years — had no legal rights to the child.
Fortunately, like with Baby Jacob, the situation was eventually remedied. The following year the Mississippi Supreme Court reversed the ruling, granting nonbio mom legal recognition and rejecting the anonymous sperm donor as a legal parent to the child.
Those two examples were before state court judges, not federal court ones, where ART cases are more likely to arise. However, we are certainly seeing assisted reproductive technology cases heading to federal court -– including Pavan where the US Supreme Court found Arkansas’ unequal treatment of same-sex couples using assisted reproductive technology unconstitutional. And the current complicated Teuscher case -– where the seemingly innocent action of a mom to a child conceived from anonymously donated sperm, reaching out to the donor’s relative who was matched to her daughter through a home DNA test, has caused an intense lawsuit -– is in federal court.
I congratulate Judge Pitlyk on her appointment to the federal district court. Obviously, becoming a federal judge is a great honor. I also appreciate her promise to fairly adjudicate the cases before her, without resort to letting her personal beliefs affect her decisions. If she is confronted with a case touching on surrogacy or other assisted reproductive technology issues, let’s hope that the law is sufficiently clear to allow Judge Pitlyk to follow through on this commitment.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.