Workin’ 9-5 With an Escrow Agent

July 8, 2020 | By:

My good friends at Private Label Surrogacy recently asked me to help educate their prospective clients and gestational carriers about escrow agents.  What is it that escrow agents do and why is it important? 

Trust me that you don’t really want me to tell you the specific ins and outs of my day at Stork Escrow unless you want to fall asleep from boredom in the next few minutes.  My life as an escrow agent “workin’ 9-5, what a way to make a livin’” (as Dolly sings it), is not the subject of this blog, nor should it be the subject of any blog because “it’s enough to drive you crazy if you let it”. 

Fortunately for those reading this blog, it turns out the question was more general than asking about the specifics of what I do while I’m ‘waitin’ for the day my ship’ll come in.”  Among other questions (which I will address in another part of this blog series), my friends at PLS wanted to know what the difference is between fund managers and escrow agents and when and why you need to hire one of us. 

Well then, let me discuss “my service and devotion” . . . .

Nomenclature aside, escrow agents and fund managers are (or should be) the same thing: people or companies who are responsible for holding and distributing the money needed for surrogacy and egg donation arrangements.  We exist to protect the people and the money involved in these third-party assisted reproduction arrangements. 

In fact, I opened Stork Escrow with my partner Kelly DuMont to do just that: we “poured ourselves a cup of ambition” to protect the people involved in surrogacy and egg donation arrangements from financial harm.  Kelly and I both had experience managing escrow accounts for third-party assisted reproduction and we had both heard some really sad stories of people losing their life savings from surrogacy and family building scams where money was stolen from the intended parents and the surrogate by people at the agency involved in the surrogacy arrangement.  Kelly and I decided to work together to try and find a better way to protect people from getting hurt financially while they worked to build their dream family. 

How escrow agents or fund managers achieve this goal—safeguarding the money and protecting people from getting hurt financially—is achieved in different ways and it’s sometimes dependent on state law.  To some extent, where your surrogacy is going to take place may dictate some of the terms of your escrow arrangements.

California’s surrogacy statute, for example, has provisions pertaining to who can hold the funds and in what type of an account.  If a licensed and bonded escrow agent is not used, California requires that funds be held in an “attorney trust account”.  There are different types of attorney trust accounts that can be used but the bottom line is that these accounts are only available to attorneys and hold the attorneys to very high standards regarding the management of the funds.  In contrast, some states require that independent or third-party escrow agents hold the money but don’t specify the type of bank account in which the funds must be held. 

New York just passed new surrogacy legislation, the Child Parent Security Act (CPSA) which goes into effect in February of 2021.  The CPSA requires that any party to a surrogacy arrangement deposit the money needed for the surrogacy with an independent escrow agent.  New York feels that an independent third party provides necessary separation from the parties interested in the financial transactions involved in a surrogacy arrangement in order to protect everyone involved.  In this context, the funds must be held by someone who has no relationship to the agency or to the people involved in the surrogacy arrangement. 

Using an independent escrow agent prevents self-interest from interfering in the management of the money needed for the surrogacy journey.  You don’t want it to be all “takin’ and no givin’” like that scam I mentioned.  You want to know that no one is going to be taking your money except to give it to someone who legally is entitled to have it. 

And that is really the answer.  If you want to know what an escrow agent or fund manager is, what we’re supposed to do, and why we exist, that’s your reason:  We are here to protect the money that the intended parents need to deposit to cover the surrogacy or egg donation expenses and we make sure it gets paid to the surrogate or egg donor in accordance with the terms of their respective contract.  Call us whatever you want, escrow agent or fund manager, at the end of the day regardless of our name or title, our job is the same: to protect the financial interests of the parties to a gestational surrogacy or egg donation arrangement

Third party assisted reproduction is a “rich man’s game, no matter what they call it”, and you may be using your life savings to make your family a reality.  You want to know that you are not putting your money into “another man’s wallet”.  

Why do you need an escrow agent or fund manager?  “Well you’ve got dreams [s]he’ll never take away.”

Up next:

Do all escrow providers offer the same fund security?  What are the different types of accounts used to hold funds and does it matter what type you use?  What are the most important questions to ask your surrogacy agency about escrow fund management?

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If you have ever been infertile, Mother’s Day Can Freakin’ Suck.

May 12, 2019 | By:

 

If you have ever been infertile, Mother’s Day Can Freakin’ Suck.   This is a picture of my mom.  She had Stage IV endometriosis (like me), and as a result, only had me.  She wanted more babies but she couldn’t have them and she and my father were TTC before IVF or infertility treatment was an option.  She died a little over a year ago and for some reason this Mother’s Day has ripped-off what my grief counselor calls the “grief-band-aid” on so many different issues.  I miss my mom today in a gut-wrenching, heart-breaking way that maybe I haven’t since she died.  Maybe that is because she suffered from infertility too and we had a special bond on Mother’s Day, understanding each other’s pain even though we both became mothers.  But today, there is a pain and anger in me that I haven’t felt in years.  If I see one more picture of a pregnant belly in my news feed I will scream.  Or read one more comment about the diaper’s women wear after giving birth.  Please stop reminding me of what I couldn’t do!  My grief counselor tells me that losing both my parents (as an only child) within 5 months is called “complicated grief” but she also said that loss of anyone brings up every other loss I have ever experienced, namely all my many, many miscarriages.  That would make it very complicated grief, I guess.  I might have reached a point where I was okay not trying to carry a baby in my belly — losing a baby at 5 months when I was in such fear and denial that I couldn’t even acknowledge I was pregnant — helped me move past the ever-present yearning to feel a baby kick inside me.  But that doesn’t mean that I don’t still hurt as a woman that I couldn’t carry a baby.  I have two beautiful children and should be able to celebrate today.  But I can’t.  I don’t have the one person who understood better than any other how conflicting Mother’s Day can be, in which to share the day, happiness and sadness tied together in a giant ball of conflicting emotions.  My family seems to have forgotten that I needed support today — that I will always need support on Mother’s Day.  I don’t blame my kids for not getting me a card or doing something special for me.  They are too young to understand how complicated this day is for a formerly infertile mom (who just lost her mom), and God-willing they will never understand the infertility piece.  My DH asked what was bothering me and I explained my headspace and then I told him I shouldn’t have to ask for cards or flowers or CHOCOLATE.  Just because our kids are teens doesn’t mean the pain of infertility is any less.  Apparently today, it is quite more, and this is one of the hardest Mother’s Days I have experienced.  I cannot control the internet, all the pictures of newborn babies (Archie’s feet, Amy and Gene), and pregnant bellies.  I can only control my response.  Which will be to stay off my phone, tablet and away from my computer.   My infertility grief-band-aid was ripped off today and it freakin’ sucks.  It doesn’t matter how your infertility resolves.  There always is a little piece of it in your heart.  My mom not being here today makes it harder to push the feelings aside, but no matter how much counseling we get, no matter how many babies we do or don’t ever have, Mother’s Day can be brutal.  Now where the Eff is the Chocolate in this house?

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What you need to know about surrogacy in NY and why you need to know it: Updated.

November 30, 2016 | By:

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!

 

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