November 30, 2016 | By: Liz | Filed under: Birth Certificates, Birth Orders, Egg Donation, Gestational Carrier Arrangements, New York Reproductive Law, Parentage Orders, Personal Musings, Pre-Birth Orders, Reproductive Law, Surrogacy, Surrogacy in New York, Third-Party Assisted Reproduction, Uncompensated Surrogacy
The other day I had the privilege of visiting clients who had just come home from the hospital with their newborn. It was a compassionate surrogacy and it was time for everyone to sign papers either terminating parental rights or seeking to establish them. It was a unique situation – and one that brought tears to me eyes repeatedly while I was there (okay so I am a Crier and I am Proud of it). In this case a grandmother had carried her grandchild for her daughter and son-in-law. The emotion (and tears) behind this child’s birth is the subject of another blog. The conversation we had while everyone was signing their papers and I was furiously stamping everything with my notary stamp is, however, the subject of this blog. We were talking about how they got started on this monumental journey and a blog I wrote about Beyoncé and NY surrogacy. In that blog, I gave an overview of some aspects of surrogacy laws as they pertain to New York State. Having reviewed that blog, it occurs to me an update or clarification might be warranted. If nothing else, I have changed how I practice and establish parental rights and my blogs should reflect that change, yes? I have posted other blogs on surrogacy which discuss NY laws so this blog should be read in conjunction with the Beyoncé post from 2012 and my other blogs related to surrogacy.
Despite the estimable efforts of some of my colleagues to get NY to update our legislation, we still can’t do the paid surrogacy thing in NY. In order to enter into a surrogacy arrangement in NY a friend or family member has to carry the baby for you out of her love and affection for you. This is called “compassionate surrogacy” and it is indeed, a compassionate act for someone to carry another person’s child without financial remuneration. If you don’t have someone who is willing to carry your baby out of their love and affection for you, you have to go to another state which permits compensated surrogacy. You shouldn’t have too hard a time finding a surrogacy friendly state as NY is among only a couple of states which have “surrogacy unfriendly” laws. And by the way, when I say “unfriendly” I would like to remind you that entering into a contract for surrogacy in NY, or facilitating a compensated surrogacy arrangement in NY, are not just acts which are against the public policy of the State of NY, they are potentially criminal acts. Yes, let’s insert the word felony in there for some greater clarity. Fun times.
But we have compassionate surrogacy and NY’ers can even have a traditional surrogate carry a baby out of her love and affection for the intended parents (traditional surrogates use their own eggs to achieve a pregnancy and a lot of states do not permit traditional surrogacy). There are real options for achieving a family when you are medically or socially infertile and live in NY. Provided you have someone willing to carry that baby without compensation (get the theme here?).
So let’s say you have someone willing to carry your baby for you. Let’s now assume you have or can create embryos using your eggs and your husband’s sperm (I will discuss what happens when you can’t). You hire an experienced reproductive lawyer to draft a document prior to the transfer of your embryo to the surrogate’s [compassionate] uterus which outlines your (the intended parents’) intent and the surrogate’s intent (and her husband if she has one), that she will carry your baby out of her love and affection for you, and that she has no intent to parent the child. In this document outlining your intent, your reproductive lawyer also will address the laws of the State of New York and who will be deemed a parent, and at what point in time they will be deemed a parent, or you will be deemed to be the parent (dang that’s a lot of deems). And that is as far as I go with my discussion of this document evidencing pre-conception intent, as the document itself will vary among the reproductive lawyers you may hire (and whose surrogacy practice is, by law, limited almost exclusively to compassionate surrogacy).
This Completes Step 1 = You now have a pre-conception document outlining the everyone’s intent for the compassionate surrogate to carry baby for the intended parents, and for the intended parents to be the parents. Many reproductive lawyers in NY call this document a Memorandum of Understanding (or MOU for short).
Then your surrogate gets pregnant from the embryo created using your egg and your husband’s sperm (or from donor gametes). What happens now? Again this will vary based on individual attorneys but typically during the pregnancy, if your surrogate is married her husband can take steps to terminate any parental rights NY law will assume he has by virtue of the fact that he is married to your surrogate at the time your child is conceived and born. In this case, typically the surrogate’s husband isn’t listed on the first birth certificate; it will be issued with just her name on it (attorneys do things different ways so do discuss this part of the process with your own attorney). If your surrogate isn’t married, then bio dad’s name can be placed on the first birth certificate with the surrogate’s name. This makes life a lot simpler for everyone, but this can only happen when your surrogate is not married. However, it is only AFTER your baby is born that your surrogate can take steps to terminate her parental rights. NY will deem your compassionate surrogate to be your child’s mother, notwithstanding the lack of any genetic connection to your child (well except for the grandmother who just delivered her grandchild and who, of course, is genetically related to the baby she carried). Indeed, because she cannot terminate her parental rights until after your baby is born, under the current NY laws, your surrogate’s name will have to go on the first birth certificate issued for your baby by the State or City of New York.
After the baby is born you can go to court and seek an order declaring you and your husband (if your surrogate is married) to be the genetic and legal parents of your child. This is often called a “post-birth order” of parentage. Once you have that court order, NY or NYC will issue a new birth certificate with your names on it. (Please see my discussion of Queen Bee regarding whether or not that first birth certificate gets sealed). I have been having quite a bit of success recently getting post-birth orders quickly. It used to be that I had to go into different courts – now I usually just go into one court and have a hearing to establish the intended parents’ parental rights and terminate the surrogate’s presumptive parental rights. I have had hearings that lasted a total of 10 minutes. Anti-climactic to say the least.
Now, to be fair, some of my colleagues go into court before the baby is born to start the process of establishing and terminating parental rights. Everyone has their own way of doing things, but the bottom line is that whether I go into court before or after your baby is born, or both before and after your baby is born, your surrogate’s parental rights cannot be terminated and your parental rights cannot be established until after the baby is born. That is until the NY legislature decides to move into the 21st Century with the rest of us.
If you have to use donor egg, donor sperm, or your surrogate uses her own egg, the non-biological parent cannot get a post-birth order in NY. In this case, where someone else provided gametes (egg or sperm), a step-parent or second-parent adoption must be conducted to establish the non-bio parent’s parental rights. The bottom line is that in NY, if you lack a genetic connection to your child, you will need to enter into some kind of an adoption process to be named mom or dad on that birth certificate.
This Completes Step 2 = establishing and terminating parental rights either through court proceedings which are completed after the baby is born and/or through adoption proceedings (depending on who has a genetic relationship to the baby).
And at some point thereafter you will receive a new birth certificate with your names on it!
August 2, 2016 | By: Liz | Filed under: Current Affairs, Egg Donation, Embryos, Financing Fertility Treament or Adoption, Frozen Embryos, IVF, Personal Musings, The Journey to Parenthood, Thinking Out Loud, Third-Party Assisted Reproduction, Thoughts on Choosing an Egg Donor
I really shouldn’t be here right now. But there is too much laundry, too many emails, and too many dishes to attend to not to choose to procrastinate right now and get some stuff off my mind. I have had several conversations Today (yes this one specific day on which I am writing) with people entering into “fresh” egg donation cycles and who have debated using or tried using an egg bank. And when I say “fresh” egg donation cycle I mean that they are using an egg donor who will donate all her eggs from one IVF egg donation cycle to the intended parent(s). They have chosen not to use an egg bank. One couple tried using a known donor, then went the egg banking route and are now almost broke and using an egg donation agency and a (wait for it) “fresh” donor. One intended parent was convinced by her IVF Clinic not to waste money on an egg bank and instead choose to use a “fresh” (as in not frozen egg) donor. The others weighed the pros and cons on their own. I also have had the opportunity to discuss it with owners of egg donation agencies (of which, arguably, I am one) and an IVF physician who thinks egg banking and selling eggs is the next best thing to Viagra and sliced bread.
While I recognize the benefit egg banking has for women undergoing medical treatment which may render them infertile or otherwise potentially impair their fertility, or for those who choose to bank their own eggs for their own future efforts at conception, I am NOT a fan of egg banking. So extreme has become my position on this matter than I am working with colleagues on a professional article on the risks women and intended parents are facing by not being properly informed about egg banking.
I get the appeal egg banking presents. It’s faster and easier than using a fresh donor, and very much like the sperm bank experience in terms of selection, anonymity and being one more step removed from the genetic progenitors giving your child life. For some people, I suppose, an egg bank makes alot of sense. But for me, it’s a waste of time and money, risks the future of your family in ways that an egg donation agreement with a fresh donor can provide you (and the donor) protection, and potentially runs afoul of the public policy of most states, insofar as most egg banks provide “x” number of eggs for a set fee and then if you need extra eggs you can “buy” them for “x-thousand” of dollars per egg. Has anyone other than me reviewed the documents egg banks present to consumers and comment on the fact that it is illegal to sell genetic material? And hey, what about the fact that when you have to buy those extra eggs . . . had you used a fresh donor, you might have received the same number of eggs, or more, for an almost equal cost (my client who went through a known donation, an egg bank and is now using an agency would argue the agency was cheaper from the get-go) and without having purchased human tissue (you know human tissue, like a kidney?)??
And what of the success rates? I have yet to see consistent data coming from within my industry that tells me that frozen eggs result in the same number of live births as result from using a fresh egg donor. Egg banks certainly don’t seem to offer the possibility of having frozen embryos from which you might conceive a full genetic sibling. Fresh donor cycles often result in leftover cryopreserved embryos which can be used to conceive additional children. It doesn’t happen for everyone, but it happens for many.
I think the technology is promising. But unless you need to preserve your fertility, I don’t think it is all that it is cracked up to be. And who wants to buy a cracked egg anyway?
I don’t have a lot of time tonight, the dishes smell and the laundry is over-flowing out of three laundry baskets, but I wanted to start this dialogue. I am so sad for my clients who have wasted time, energy, and money not getting pregnant using egg banks.
In the immortal words of Linda Richmond (from SNL) Talk Amongst Yourselves . . . and let me know your thoughts. . . .
February 23, 2016 | By: Liz | Filed under: anonymous sperm donation, Birth Certificates, Birth Orders, Current Affairs, Egg Donation, Embryo Disposition, Embryos, Family Building Law, Frozen Embryos, fund management in third-party assisted reproduction, Gestational Carrier Arrangements, infertility in the media, known sperm donation, Parentage Orders, Pre-Birth Orders, Reproductive Law, Reproductive Lawyers, Same Sex Parenting and Reproductive Law, Surrogacy, surrogacy escrow management, Third-Party Assisted Reproduction
So in Part 1 we discussed some of the agreements you might need to enter into when building your family through third-party assisted reproduction and how my colleagues and I can help you with them. Now let’s take a look at some of the more obscure but equally important issues that might come up.
back to our top ten list:
(6) Using cryopreserved embryos in the event of a divorce or after a death. Do you know whether you can use frozen embryos after a divorce or separation? Did you know that this is one of the hottest legal issues in third-party assisted reproduction law (Hello Sofia!). What if you want to conceive a child using frozen embryos after your partner dies? Will you be a legal parent? Will your child be entitled to inherit from your partner’s estate, or your partner’s social security benefits? These are some of the most complicated and cutting-edge issues in reproductive law and you don’t have to be Sofia Vergara to regret not having had a thorough discussion with an attorney before you make decisions (or have a pre-conception embryo disposition agreement prepared or even just check off a box on a clinic consent form) that has the power to change your life plans. And heck, just look at Sherri Shepherd and her battle not to have child support obligations. That case just turns my stomach.
(7) Managing money in a surrogacy arrangement: You may be spending over $100,000 in connection with your surrogacy or receiving tens of thousands of dollars in compensation as a surrogate. Do you know where the money is being held? Do you know how and when it is being paid and what documentation, if any is being provided to support the payment? What happens if your agency goes under and the escrow account was held by the agency? Are independent escrow managers necessary and when should you retain one? Do the state laws which govern your surrogacy arrangement provide special rules for how and where money must be held? How do you know if your money is safe?
(8) Doing a home insemination: It may be a more affordable way to conceive your child (and more intimate as compared to the stirrups in your doc’s office), but will you have a legally recognized family if you do a home insemination? Did you know that in some states a doctor must perform the insemination in order to terminate the sperm donor’s parental rights and ensure that the intended parents are deemed legal parents?
(9) Getting your birth certificate: How and when can you get a birth certificate with the intended parents'(s) name(s) on them? Can you get them before the baby is born or only after birth? Do you need to do a second or step-parent adoption? Is the law in the State in which your baby will be born uniform throughout the State or does it vary County by County or even Judge by Judge? Do you know what you need to do, where you need to do it and when you need to do it in order to obtain a birth certificate for your child with your name on it? One of my colleagues has a fairly famous quote from an interview he gave about the fact that the ease with which he can or cannot obtain parentage orders sometimes comes down to the button he pushes in the elevator in the courthouse. Are you walking into a courthouse like that? Do you have any alternative?
(10) Understanding the impact of changing laws: Third-party assisted reproduction is a new and emerging area of the law. Some states have statutes governing egg and sperm donation, and surrogacy, others have only case law (or judge made) law. Some states have statutes or laws which are unfavorable and others have laws which are favorable to different types of third-party assisted reproduction. Some states have outdated laws that may change in the near future. Other states have laws which may be unconstitutional given recent decisions from the United States Supreme Court, but the state may not yet be complying with or adhering to new and evolving constitutional principles. When and how will these evolving laws impact your family building and the recognition of your family, as a family? And as long as we are discussing the status of various state laws, doctors (as much as we love and need them in this process) don’t always fully understand the laws, especially the nuances with which my colleagues and I have become familiar. Just as I would never try and tell my clients what their latest blood test results mean, and my clients should not listen to me with great seriousness when I put on my honorary lab coat, they shouldn’t listen to their doctor’s advice about what they can and cannot do to build their family. Sure, get her opinions on what options you have, but check with someone who actually practices reproductive law before you cross a type of third-party assisted reproduction off your list because your doctor tells you that option isn’t available it to you.
My colleagues and I can help you answer most, if not all of these questions. We can help you make smart (or smarter) choices as you begin the often complicated process of building your family using donor gametes like egg, sperm, or embryos, or with the help of a gestational surrogate. We can protect you in almost all of the scenarios and situations discussed in this top ten list. Reproductive lawyers are here to help you become a parent and help make sure that your legal parent-child relationship and family are recognized by the government and other people who might try to challenge your status as a mom or dad. It’s that simple. And it’s that important.
February 10, 2016 | By: Liz | Filed under: anonymous sperm donation, Birth Certificates, Birth Orders, Current Affairs, Egg Donation, Embryo Disposition, Embryos, Family Building Law, Frozen Embryos, Gestational Carrier, Gestational Carrier Arrangements, In the News, infertility in the media, Infertility on Television, Insurance for Infertility, IVF, known sperm donation, New York Reproductive Law, Parentage Orders, Personal Musings, Pre-Birth Orders, Reproductive Law, Reproductive Lawyers, Same Sex Parenting and Reproductive Law, Surrogacy, Surrogacy in New York, The Journey to Parenthood, Thinking Out Loud, Third-Party Assisted Reproduction, Uncategorized, Uncompensated Surrogacy
Sometimes when I tell people what I do for a living they look at me like I have two heads.
Reproductive Lawyer? What’s that???
In this day and age when celebs like Sofia Vergara and her Ex are all over the news fighting over which one of them is going to get to use their frozen embryos, I am really surprised that so many people have no idea what it is that reproductive lawyers do. Or more to the point, why reproductive lawyers are not only helpful, but often play a critical and essential role for individuals and couples building their family through third-party assisted reproductive arrangements like surrogacy, egg, sperm, and embryo donation.
So what is it that we do for our clients? How is it that we play such an important but poorly understood role in the formation of our modern families? Here, in no particular order, is an overview of the top ten things reproductive lawyers can help you with as you begin to build your family through third-party assisted reproduction. Now these may not be humor-worthy of top ten list legend David Letterman, but for anyone going through third-party assisted reproduction or considering it, this is an important list:
(1) Reviewing your agreement with your surrogacy or egg donation agency (sometimes called a service agreement): If things go south with your relationship with the agency this is the document that is going to be your agency’s safety net and the document you will look to in order to seek a refund of all or some of the money you paid. Shouldn’t you know your rights and the agency’s obligations and responsibilities before you sign an agreement and work with the agency?
(2) Reviewing your surrogates insurance policy: What if it doesn’t cover a surrogacy pregnancy? What options do you have to avoid a potentially catastrophic financial liability?
(3) Preparing contracts for you: Egg, sperm, and embryo donation agreements (anonymous or known), and gestational surrogacy agreements are all critical documents in protecting your family in the future and protecting you and your donor/surrogate during the IVF process and/or pregnancy. Understanding the role this agreement plays in third-party assisted reproduction and the necessity for having them drafted is far too often overlooked. How do you make sure your sperm donor is really a donor and not something more (like a parent)? When does your egg donor relinquish parental rights? What happens if she changes her mind about donating? How and when can you use any leftover frozen eggs or preembryos? What happens if you and your surrogate disagree over something really important like selectively reducing the pregnancy?
(4) Using boilerplate contracts with your agency, or contracts you find on the internet: Do they really protect you and what issues might arise if you use one? Did you know that you are probably violating copyright laws by using one? Did you know you cannot be forced or compelled to use an agreement provided by an agency and that you have the right to use an independent lawyer?
(5) Entering into a known sperm donation agreement (with a friend or a Starbucks Sperm Donor): What do you need to know about these sometimes very dicey situations? What makes them so risky and how can you avoid those risks? What can you do to protect yourself whether you are the intended parent or the sperm donor? How can you protect yourself from a known sperm donor asserting parental rights or an intended parent trying to impose parental rights, custody or child support obligations? Does a sperm donor need to be worried about the State asserting a claim that he has child support obligations? Good intentions aside, everyone thinking about this form of family building is (in my humble opinion — IMHO) a fool for not consulting with an attorney before entering into this type of family building arrangement.
These are just a few of the important ways reproductive lawyers can help you through the obstacle course of third-party assisted reproduction. We want to help you make smart future-thinking decisions and ensure that everyone has their rights protected as they intend them to be and as they move forward through this process.
Up Next in Part 2 We Explore:
(6) Planning for Divorce or Death.
(7) Managing money in a surrogacy arrangement.
(8) Doing a home insemination:
(9) Getting your birth certificate:
(10) Understanding the impact of changing reproductive laws:
June 16, 2015 | By: Liz | Filed under: Current Affairs, Embryo Disposition, Embryos, Frozen Embryos, In the News, infertility in the media, Infertility on Television, IVF
Frozen embryos have been in the news quite a bit recently. There is the Sofia Vergara/Nick Loeb embryo battle. I don’t think anyone could have missed the media coverage on that story. Then there is a case in Illinois involving embryos created before a woman, Karla, underwent chemo therapy and which embryos represent her last chance to have a genetic child. The man, Jacob, who agreed to help her create the embryos (and allowed his sperm to be used for purposes of fertilizing her eggs) no longer wants her to use the embryos to have a genetic child. This case also is getting a lot of media attention. And there are a host of other cases which have not been talked about in the media but which are winding their way through the court system. There is a lot to learn from these cases and a lot to think about. And I mean think about NOW, before your IVF cycle starts, and cerainly before you break-up, separate, or get divorced. I know none of us want to think about unpleasant things when we are trying to get pregnant, but this is one of those times when advance planning might be a better idea than telling yourself something like this would never happen to you. Assisted Reproductive Technology (ART) is a lot to deal with no matter what but, as in most cases, ignoring this issue is likely to make things worse, not better.
I remember that when I was presented with consent forms at my IVF Clinic, and I tried to read and digest what the forms meant, the last thing I cared about was what would happen to my embryos at some random point in the future. I ignored issues that I found unpleasant. If it didn’t involve a potential positive pregnancy test, my head went deep into the sand. However, as I did more and more cycles, I started to care more about my responses on the forms. To be honest, it was really only because I became more concerned about what would be happening to “my” embryos under various circumstances which did not involve my uterus. As I became more familiar with the process of ART and IVF and more invested in the outcome, I started to think of the embryos less in the abstract; the embryos became more a part of me and thus I became more invested in how they might be “used”, other than to get me pregnant. But never in a million years did I think about what would happen to frozen embryos if my DH and I got divorced. For that matter, none of the health professionals at my clinic discussed issues regarding the disposition of these embryos in the event we got divorced. Perhaps this issue wasn’t on the radar way back in the dark ages of infertility treatment (when I did my IVF cycles), but it is on the radar now and people are definitely fighting over who can use the embryos after they separate or get divorced.
In retrospect — and hindsight really is 20/20 — I know that if I had separated or divorced with frozen embryos that I would have fought to the proverbial death to be able to use those embryos, regardless of what anyone else might have thought or felt about the embryos. So I get why people fight over this. And as a lawyer helping people understand the legal issues involved in assisted reproduction, one of my jobs is to educate people about what can happen if they later disagree about the who, when and where of embryo disposition.
The cases which have been litigated and those which are winding their way through the court system, unfortunately are inconsistent in their decisions. That is, some courts enforce consent forms, some enforce oral agreements, some enforce the rights of the person who doesn’t want the embryos used, and some courts might be said to have enforced the rights of the embryo (IF embryos can be said to have rights, and I am not going down THAT path in THIS blog). So what can we do? We can read those consent forms for one thing. We also can discuss this issue with our partners.
Reproductive law has one common theme, it looks to the parties’ intent at the time ART is used to create an embryo to decide who is supposed to be a parent, and under what circumstances the embryos can be used by those parents if they are no longer in a relationship. If a court is going to be looking for evidence of our intent about whether we can use a frozen embryo against the wishes of our partner after we break-up, then it behooves us to figure out what that intent is. Sadly most of us do not have the financial resources to fight a battle like Sofia Vergara’s. But in our minds and hearts, we all have as much at stake as do Karla and Jacob in the Illinois case. And while all of us might want a baby now, Sofia Vergara and Jacob (just to name two) provide ample evidence that what “all of us” want now may not be what we “all” want in the future.