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Workin’ 9-5 With an Escrow Agent

July 8, 2020 | By: | Filed under: Egg Donation, Family Building Law, Financing Fertility Treament or Adoption, fund management in third-party assisted reproduction, Gestational Carrier, Gestational Carrier Arrangements, Infertility Awareness, New York Reproductive Law, Reproductive Law, Surrogacy, surrogacy escrow management, Surrogacy in New York, Third-Party Assisted Reproduction, Uncategorized

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: | Filed under: adoption, child free living, Faith and Infertility, I'm Just Another Angry Infertile Woman, In the News, Infertility Awareness, infertility in the media, Infertility on Television, Miscarriage, Peace to Parenthood, Personal Musings, Recurrent Pregnancy Loss, Stillbirth, The Infertility Survival Handbook, The Journey to Parenthood, Thinking Out Loud

 

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: | 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!

 

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I Have A Bee in My Bonnet About Egg Banking

August 2, 2016 | By: | 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. . . .

 

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The Top Ten Things Reproductive Lawyers Can Help You With – Part 2

February 23, 2016 | By: | 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. 

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