When IVF ends up in Court

Currently there is a case before the Family Court concerning a millionaire businessman who donated sperm to a former girlfriend to enable her to conceive a child.

The dispute surrounds whether or not the father should have "access" to the child.

The case is awaiting final hearing.  In the interim period, it is reported that the child will see his father for two hours, twice per week.

This case reminds me of one I had in my pre-collaborative days.   A male couple agreed to assist a female couple to conceive a child and sperm was donated by one of the males.   Unfortunately, the relationships between parties broke down.  My client came to me wanting to take her son overseas to see family, but was unable to do so without the sperm donor's permission as he was listed on the birth certificate. Litigation was commenced...

I can't help but wonder how these two cases might have had difference outcomes if a collaborative process was adopted.

In both instances, the donors and mothers were friends (hence the donation!)   As a result of their dispute, any hope of friendship is likely lost.   The child may be faced with acrimony between the mother and the donor for years to come (let's face it - litigation rarely fosters better relationships between parties....)

Had they engaged in a collaborative process, they could have approached this in a way that was respectful to each other and worked towards the best outcome for all of them - first and foremost, the child.

Perhaps a child specialist, working as part of the collaborative team, in private, could have been the one to tell the parties of the psychological damage the child could suffer and help them work towards a solution, rather than that evidence being aired in a courtroom and reported for the world to read.

Perhaps they might all still be friends - or at least have a co-operative or civil relationship....

13 things kids want parents to know after separation

1. We need to know you love us, will protect us, and won’t leave us.
2. Help us get organized for going back and forth. Be patient.
3. Listen to our questions and opinions even if you don’t agree.
4. Accept that we need a lot of time to adjust, even when we don’t show it.
5. Keep you conflicts and dislike of each other out of sight and earshot.
6. Keep us out of the middle of your problems. We are just kids.
7. Don’t ask us to spy, pass messages, or listen to you put-down the other parent.
8. Give us a chance to talk with kids who are also going through this.
9. Help us express our feelings and learn how to manage them.
10. Give us space and time to grieve the loss of our old life at our own pace.
11. Confide in people your own age. We are not your substitute spouse.
12. Tell us we aren’t at fault for your problems. We can’t fix them either.
13. Show us its OK to love and want to be with both of you.

Copyright: Isolina Ricci, Ph.D. Exerpted from “Divorce from the Kids’ Point of View” NCFR Report, December 2007.

We recommend Isolina Ricci’s website and books "Mom’s House, Dad’s House" and "Mom’s House Dad’s House for Kids".

Divorce or Separation - Collaboration vs Litigation

	Collaborative	Litigation
Who controls the process	You and your spouse control the process and make final decisions	Judge controls the process and makes final decisions
Degree of Adversity	You and your spouse pledge mutual respect and openness.   You agree not to fight	Court process is based on an adversarial system
Cost	Costs are manageable, usually less expensive than litigation; team model is financially efficient in use of experts	Costs are unpredictable and can escalate rapidly including frequency of post-judgement litigation
Timetable	You and your spouse create the timetable	Judge sets the timetable; often delays given crowded court.  Can be delays in receiving judgment even after your case is tried
Use of Outside Experts	Jointly retained specialists provide information and guidance helping you and your spouse develop informed, mutually beneficial solutions, based on what is best for your family	Separate experts are hired to support the litigants’ positions, often at great expense to each
Involvement of Lawyers	Your lawyers work toward a mutually created settlement	Lawyers fight to win, but someone loses
Privacy	The process, discussion and negotiation details are kept private	Dispute becomes a matter of public record and, sometimes, media attention.  Even if names are removed sometimes it can be easy to tell who it is because of the facts of the case
Facilitation of Communication	Team of Collaborative Practice specialists educate and assist you and your spouse on how to effectively communicate with each other	No process designed to facilitate communication
Voluntary vs Mandatory	Voluntary	Mandatory if no agreement
Lines of Communication	You and your spouse communicate directly with the assistance of members of your team	You and your spouse negotiate through your lawyers
Court Involvement	Outside court	Court based