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Archive for January, 2012

Infertility Treatment and Insurance — Speak Up While You Can!

January 30, 2012 | By: | Filed under: Announcements, Current Affairs, Financing Fertility Treament or Adoption, Insurance for Infertility, IVF, The Journey to Parenthood

There is an important deadline tomorrow:

Public commentary (from you!!) is needed to demand that infertility treatment coverage be included as an essential benefit under the Affordable Care Act (ACA).  To include your voice and make sure your concerns and needs are addressed contact the Department of Health and Human Services before January 31st, 2012.

The decision to include infertility treatment as a covered essential benefit falls solely in the hands of Kathleen Sebelius, US Secretary of Health and Human Services.  You can email her at

EssentialHealthBenefits@cms.hhs.gov

For more information please read http://myemail.constantcontact.com/Infertility-Matters–Demanding-Essential-Benefit-Coverage.html?soid=1101342191383&aid=B44Urr44QiU

 

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Sentencing of attorneys who plead guilty to baby selling. Is it Enough?

January 27, 2012 | By: | Filed under: I'm Just Another Angry Infertile Woman, In the News, infertility in the media, Infertility on Television, IVF, Parentage Orders, Personal Musings, The Journey to Parenthood, Thinking Out Loud, Uncategorized

I have been following the cases against my former colleagues Theresa Erickson and Hilary Neiman for some time.  I had known for awhile about the investigation but was still stunned when the plea agreements became available to the public and I began discussing the details with colleagues and officials in the Justice Department.  I know stuff like this probably happens more often than any of us care to admit.  It always has and it always will.  What is that expression about there always being thieves and crooks among us??

But my blog today — which is very different than that which I typically post — has more to do with whether the penalty fit the crime than whether what transpired under the direction of TE and with the assistance of HN was right or wrong, or for that matter my level of shock and horror at all of it.  I had at one point read something on the internet that suggested that HN had been sentenced, or was going to be sentenced to 13 years in prison.  I remember discussing the article I read with the women in my office.  I asked them whether they thought 13 years were too few or too many.  It turns out there was no factual basis to the article I was reading, as HN will be serving less than a year in a federal penitentiary and additional time under house arrest.  That is quite a difference from 13 years wouldn’t you say?

I had never made a decision myself about whether 13 years was “just” punishment for the crimes alleged and to which she plead guilty.  Some part of me felt that it wasn’t enough time and some part of me felt it was too much time.  So I let it go, as I was more intrigued by the fact that there were still matters under investigation.

But I have no doubt when I say that less than a year in “Club Fed” is not enough time.  As the Judge Battaglia pointed out (for more see an article in the  http://www.abajournal.com/news/article/former_lawyer_gets_1-year_sentence_in_international_baby_selling_scam/ ), HN doesn’t even appear to understand that what she has done was wrong.  Under the circumstances, then doesn’t it make sense to give someone slightly harsher a penalty to help them internalize that which they have done?  Club Fed is rumored not to be such a bad place.  If I recall, Martha Stewart enjoyed learning how to knit while she served her time.  Given that we are talking about the intentional creation and sale of human life, do we really want to send a message to society that less than a year in jail is sufficient punishment for such atrocious conduct?  I recognize that Judge Battaglia was restricted by sentencing guidelines, but even so, he still had the ability to provide for a more severe consequence for this crime.  House arrest is pretty much of a joke isn’t it?  There are days that actually sounds like a pretty sweet deal if you ask me.  I suppose taking the option out of it may make it different.  It is one thing to imagine what its like and another thing to actually live with an ankle bracelet every day.  Query, if you have a pool in your backyard, are you allowed to sunbathe next to it?  Or is that a violation of house arrest? Let’s be clear, however, we can make brownies, watch TV, read books, surf Face Book, and shop on the internet while under house arrest, things we cannot do at Club Fed.

I am not sure, and will most certainly be giving this more thought, but my gut reaction is that I really think this punishment didn’t fit the crime.  As we await the sentencing of the co-conspirators, I am really curious to see if this notion of minimum and maximum sentences, house arrest, and the reality that people like me (albeit me 11 years ago) — desperate to have a child, unknowing (even as an attorney) of the true bounds of the law with respect to things like surrogacy and egg donation — were intentionally preyed upon.  Babies were intentionally created to be sold to people like me.  It’s gross and inhuman.  And I object to the fact that the people who perpetrated these acts get to make brownies in the comfort of their own home, surf Face Book, and shop on Amazon, and perhaps even luxuriate by the pool in their backyard (seriously, is that okay with the ankle bracelet?  Martha was allowed to garden wasn’t she??).  Isn’t house arrest pretty much the same thing as sending your child to their room for a “time out”?

So I am going to make a pledge to devote more of my time to educating people so they don’t fall prey to schemes like these.  And while I do so, I hope that somewhere a fair justice system will prevail in what remains of these cases.

 

These are the personal thoughts and opinions of this author.

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What you want to know about surrogacy in New York and why you want to know it!

January 25, 2012 | By: | Filed under: Birth Certificates, Birth Orders, In the News, IVF, Parentage Orders, Pre-Birth Orders, Sam Sex Parenting and Reproductive Law, Surrogacy in New York, Third-Party Assisted Reproduction, Uncompensated Surrogacy

I have been watching all the coverage of the birth of Beyonce’s baby and the rumors she used a surrogate, and I have been fielding questions from clients left and right about whether this is true (I have no idea, please stop asking.  This is what I get for engaging in legal debate on FaceBook!).  I do have to say, however, that I am somewhat surprised by the lack of knowledge about surrogacy laws  in New York.  Most people think it is totally illegal under all circumstances; they are wrong.  Most people think no one ever uses a surrogate in NY; that also is wrong.  Most people think it is impossible to find a surrogate in NY; that is somewhat wrong.  Most people that have some understanding about what is permissible regarding surrogacy in New York think that you have to adopt the baby in order to get your name on the birth certificate.  This too is wrong.

So what is the deal with surrogacy in New York State anyway?  Would you be surprised if I told you that one of the most active aspects of my practice involves surrogacy and it all takes place in the Empire State?  Would you be even more surprised to know that it also is one of the more fun things I do and that I love helping people with surrogacy in NY.  It happens to be one of the more time intensive aspects of my work but I get to dust off my old litigation garb and go to Court (in fact I am headed to Court this Friday) which always offsets the time spent drafting papers.  It is one of the aspects of my work that truly blends all aspects of what I love doing as a lawyer.  I get to help people have babies, I get to draft documents, motion papers, and go to Court and talk about esoteric aspects of NY law with judges.  Indeed, the law in NY with respect to surrogacy is getting so well-settled thanks to recently decided cases (to the extent that any aspect of ART law is “settled” or established) that half the time the Judge just wants to engage in an intellectual debate about what the law does and does not provide for and why.  Half the time I think they just want me to explain third-party assisted reproduction, IVF, Embryo Transfer Procedures, and the definition of an embryo, but far be it from me to (a) miss an opportunity to “argue” with anyone; (2) miss an opportunity to educate anyone about what I do; and (3) do anything that stands in the way of helping someone become a parent.  But I digress.

The skinny on making someone else’s belly fat with your baby in the State of New York (and while I mean absolutely no disrespect to gestational carriers/surrogates and am awed by what these women do for infertile women and men, let’s face it, if you can FINALLY have a biological child and can do so without the proverbial bump, this may be a good thing.  Trust me, having been pregnant 9+ times, most of us do not get a cute little bump ala Beyonce although I do like “the glo!”  And for the record I am not talking about using a surrogate for vanity’s sake.  I am talking about long battles with infertility etc).  But I digress again . . . is as follows:

No compensation.

Must have some type of legal document prepared before cycle starts evidencing the parties’ intent as to who will be parents.  This document is not a legally enforceable contract but is useful for many purposes, not the least of which is avoiding later disagreements over how the pregnancy will be handled and establishing intent for purposes of determining parentage (let your lawyer sweat the language in the Court documents but I do think there is merit to including this document when you are requesting a court order to obtain a birth certificate, although some attorneys may disagree with me on this — I haven’t yet had an issue submitting it).

After confirmed conception, sometime in second trimester, you should begin thinking about getting Court Orders determining parentage.  These papers will be filed in Court AFTER the baby is born and depending on who is seeking parental rights it may be Family Court or Supreme Court (but recent case law indicates you could probably file in either Court for either gender parent–I am currently trying for the first time to file the paperwork for both mom and dad in the same court, to date I have always submitted them in different courts.  Like I said, new case law is giving me an opportunity to try and streamline the process).  There is a lot of paperwork to be prepared so be nice and give your attorney a break and give them a head-start.  Please don’t descend upon us the day your baby has been born.  Although, depending on our calendars we will probably try to help you anyway.

Make sure to notify the hospital social work department of what is going on so they are not caught off guard and can assist you with proper legal paperwork at time of birth.

After birth the surrogate (and her husband if she has one) will have to relinquish/surrender/terminate (pick your verb) their parental rights.  They are both considered the baby’s legal and natural parents under New York law until they terminate parental rights and you get your Court Order.  They should execute some additional documents as well, but they exceed the scope of the blog.  A good reproductive lawyer will know what else should be signed at or around the time of birth in addition to documents terminating parental rights.  Please note that, just because the surrogate and/or husband are taking steps to terminate their parental rights does not mean you are adopting your baby.  Nor is there a home study involved in this process as there is in an adoption.

Around this time you get to take your baby home!

Your attorney next files your proceedings in whatever jurisdiction(s) in which s/he has selected for purposes of venue.  Not adoption proceedings.  I call them Parentage Proceedings or Parentage Orders.

It’s a good idea to try and get these papers moving through the court system as soon as possible after birth (doesn’t always happen as soon as everyone would like) and with as much speed as the court system will provide (there are options for making the process go more quickly, so talk to your reproductive lawyer as most of us feel that time is of the essence).

These papers request that the Court declare you to be the baby’s legal/natural/genetic/biological (pick your verb) parent(s), and that New York State replace the original birth certificate that was issued with the surrogate’s name (this must be issued under NY law until such time as the legislature determines whether it can forego this step).  The birth certificate with the intended/biological parent(s) name on it looks identical to the first — no one will know the diff.

You can request to have the first birth certificate with the surrogate’s name on it be sealed.  However, many intended parent(s) feel this is unnecessary as they have no problem recognizing the gift that their friend or family member has given them by carrying and delivering the baby — everyone knows already so who cares whether the birth certificate can be obtained without showing cause to have it unsealed.  But this is a personal issue to discuss with your attorney.

If all goes well, the Court grants your petition(s) and you get the new birth certificate with your name(s) on it.  As noted, the original birth certificate may or may not be sealed.

Depending on where in New York you did all of this will impact how quickly you get the new birth certificate with your name on it.  I have had clients get one in 30 days and others have waited months.  This truly will come down to red tape and papers not getting lost on people’s desks!

Can you find a friend or family member to carry a baby for you?  You would be surprised at how many people do have someone in their lives who would be willing to help you.  One thing I have noticed is that the people who have been more open and out-of-the-closet about their infertility often have more people offering to be a compassionate surrogate than those of us who remain silent.  They can’t offer to help if you don’t know you need it, right??  For the record, we did have a family member who offered to carry a baby for us and while this wasn’t something we were interested in doing (we chose adoption instead), we were both moved beyond words by the fact that she even considered doing it.  You know who you are.  Love you!!

This blog is not intended to provide legal advice.  It is intended to provide an educational summary and overview of what this attorney believes currently may and can happen in the State of New York with respect to compassionate surrogacy arrangements, and in order to obtain a birth certificate for intended and/or biological parents whose child was carried by a friend or family member.  If you are interested in compassionate surrogacy you should speak with an experienced reproductive lawyer or family lawyer with experience with these types of proceedings.

And for the record, I believe Beyonce delivered her baby.

 

 

 

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Making an Egg Donation Cycle Work. A brief look at what you might need to know to increase your chances of success!

January 19, 2012 | By: | Filed under: adoption, Age and Infertility, Announcements, Egg Donation, In-House Egg Donation Programs, IVF, Personal Musings, The Journey to Parenthood, Third-Party Assisted Reproduction, Thoughts on Choosing an Egg Donor, Thoughts on Donor Egg Recruitment

Through egg donation, many infertile women are now able to experience pregnancy: sharing their thoughts, feelings, blood supply and the sound of their voice with their baby, and delivering their child into the world. The success rates offered by many egg donation programs are somewhat staggering, making this a very popular option in family building, especially for women dealing with the NOvary™.

Egg donation is often so successful that some can potentially build an entire family from one egg donation cycle. Of course not every egg donation results in a pregnancy, but more often than not a carefully selected egg donor not only leads to the birth of a child, but will provide a family with extra embryos to freeze for future family building.

Such was the case for my former client Nancy. Her experience with egg donation provides a great example of the types of things someone considering using egg donation might want to take into account as they move forward on their journey to “Mama” (or “Dada”).  Nancy, at the time her journey into egg donation began, was in her early forties.  Like many women today, Nancy had waited to marry until she found the “right guy” and had established her career.  After graduating from law school, Nancy decided that she wanted to put off starting a family until she had paid off her student loans, and had made partner in her law firm.  She felt very strongly that it was important her career and financial life be stable before she became a mother.  When she was 35 she met Daniel, and after dating for a few years they married when she was 38.  Well aware of fertility landmines related to age, she and Daniel  had discussed her desire to become a mother before they got married and agreed to start trying for a baby immediately after the wedding (Nancy, just like me, hoped for a honeymoon baby!).  She was such a planner that before they got married Nancy went to her OB to see if she was facing any age-related infertility issues.  Much to her surprise and relief, after her OB examined her, Nancy found out that it seemed like all systems were good-to-go; she appeared to have a healthy body, good ovarian reserve, and nothing standing in the way of her becoming a mother.  Nancy’s OB recommended that the newlyweds try having unprotected sex for six months and if nothing happened to go see a reproductive endocrinologist (sounds like a good plan to me!).  However, after six months of unprotected intercourse, Nancy and Daniel had not gotten pregnant. Proactive Nancy immediately contacted the reproductive endocrinologist her OB recommended.

The RE Nancy and Daniel saw recommended that they try assisted-reproductive technologies.  Unfortunately after several failed IUI and IVF cycles, Nancy’s doctors told her that her best chances for becoming a mother were through egg donation or adoption.  Although there seemed to be no medical explanation for Nancy’s failure to conceive, their RE didn’t think further attempts using Nancy’s eggs made sense.  Despite her remarkably low FSH and good AMH results, her RE nevertheless attributed Nancy’s IVF failures to issues related to ovarian reserve and her age.  Ironically, after all her efforts to detect infertility, especially age-related infertility, Nancy discovered that she was dealing with the dreaded NOvary™.  (Just as side note, my definition of NOvary™ extends beyond ovaries that refuse to produce eggs because we are too old.  However, in this case Nancy’s confrontation with the NOvary™ did seem to be related to the fact that she was in her early forties and her ovaries were headed into retirement.)

The RE suggested they consider using an egg donor or adopting.

Nancy was at first — like all of us — somewhat devastated by this diagnosis.  She had done everything correctly, ate a healthy diet, exercised her entire life (in fact Nancy had almost become a professional dancer before going to college), she didn’t smoke, took yoga classes, and yet her body still seemed to be failing her.  After discussing the situation with Daniel, Nancy realized that she really, really wanted to experience pregnancy (I can relate to that!), and so they chose to first pursue egg donation.  N&D agreed that they would try egg donation one or two times and if they didn’t conceive a baby through egg donation, they would move on to adoption.

Nancy, however, was not prepared for the overwhelming information and advice she received once she had settled on using an egg donor.  People told her different things:  don’t use an agency, use an agency, don’t use an inexperienced donor, use an inexperienced donor.  Everything Nancy heard seemed to be conflicting and confusing.  Even worse was how overwhelmed she felt when she logged onto various egg donation agency’s databases.  How on earth could she ever select a donor out of the hundreds that seemed to be available?

Her gut reaction was to work with her RE’s “in-house” egg donor program as they would select the donor for her, thus ensuring that she had a fertile donor and, more importantly, Nancy wouldn’t feel she had to cull through profile after profile.  Nancy just wanted someone to make the decision for her so that she and Daniel could move past infertility and onto pregnancy!

After doing her research (if we haven’t already established it, I want to remind you that Nancy is quite the type A person and she is proud of it!  I can relate, as I too am rather Type A) Nancy, however, decided instead to work with an egg donation agency.  Although many “in-house” programs are flexible, Nancy felt that she had more options when working with an egg donation agency.  While Nancy felt that she was giving herself more legwork to locate her own donor and dealing with the accompanying stress, Nancy felt that by working with an agency she had greater flexibility in choosing her donor.  What had first seemed so attractive — having someone present her with an “egg donation goddess” (her words not mine) — in reality turned out to concern Nancy.  By relinquishing control to her RE and his staff, she lost the flexibility to request a donor who had an athletic background (not only a former dancer, both Nancy and Daniel are self-professed exercise junkies, and Daniel had played some serious basketball in college), or to use an egg donor who has an “artistic” personality (the dancing thing turned out to be really important).  She also seemed to have a harder time finding a college educated egg donor through her RE and in the end having a “smart” donor also turned out to be very important to both Nancy and Daniel.  Their RE’s in-house program would be able to provide them with a donor who already had been screened for fertility (a huge plus by many standards) and who physically resembled Nancy and Daniel (another huge plus for most people), but with the in-house program she couldn’t request an “athletic, artsy, super-smart” donor.  Using an egg donation agency gave her the freedom to be more selective than she initially thought she would need or want to be.

Nancy also didn’t have to share eggs with another infertile family which was a requirement at her particular RE’s in-house egg donation program (off topic for a moment:  shared egg donation cycles are a common effort by clinics to help reduce the cost of an egg donation cycle but being “required” to share a cycle isn’t common).  Nancy also realized that working more independently meant she would have greater control over their finances.

With a limited budget because they were also considering the possibility of adoption, most of the agencies she spoke with recommended that N&D select a donor who lived near the clinic she would be using, thus avoiding substantial travel expenses. Using an agency, Nancy also had a greater selection of donors with compensation rates to fit her budget, compared with the fixed rates offered by Nancy’s and many in-house egg donation programs.  By selecting a “local” donor with a lower compensation than that which her RE’s in-house program requested on behalf of its donors, Nancy was able to save a couple of thousand dollars and put it in what she called their “adoption bank.”  It did take more time finding that “artsy, athletic, super-smart donor” than she had anticipated but Nancy felt the time was worth it given that she didn’t think she would know “enough” about her egg donor’s background had she chosen the egg donor recommended by her RE.

One donor Nancy considered, I am going to call her Lucy, was twenty-seven years old, single, had been a dancer in high school and had attended a Seven Sister’s college (rock on to all women’s colleges!!).  Lucy had graduated at the top of her class and was attending graduate school in journalism (did I mention that Daniel is a news columnist?!). Despite Lucy’s outstanding academic credentials, which often result in a higher requested compensation, Lucy’s “requested comp”  (egg donor industry lingo) was on the low side.   Side Note:  The Society for Assisted Reproductive Technologies’ (SART) has guidelines that recommend egg donors receive between $4,OOO-$7,000 per donation.

With Lucy’s dancer’s background and desire to be a journalist like Daniel, Lucy seemed like the perfect donor.  Lucy, however, had no track record donating eggs.  With their tight budget and limited time factors — N&D were also concerned that if they waited much longer their age might preclude them from working with certain adoption programs and they very much wanted to preserve this as a family-building option — Nancy and Daniel instead decided to match with ”Lauren.”  While Lauren also was twenty-seven and had attended college where she played soccer, Lauren had a three year old daughter and had conducted one prior egg donation cycle that had produced a lot of eggs.  Although they didn’t know whether that egg donation cycle resulted in a live birth, Lauren was clearly fertile and was likely to respond well to medication.  To Nancy and Daniel, this made her a better candidate.

Both Lauren and Lucy were requesting $5,000 as compensation for their cycle and lived relatively close to Nancy’s and Daniel’s clinic (no overnight travel was involved).

Once N&D selected Lauren as their donor, the egg donation agency presented them with a list of attorneys to help prepare their egg donation agreement, and it arranged for Lauren to be represented by an attorney as well.  I am working on a blog on egg donation agreements and why you MUST have one so I am not going to go into it in depth here.  I actually had already met with N&D before they got the list of attorneys from the egg donation agency (and my name was NOT on it grrrr), but I did help them prepare their anonymous egg donation agreement with the woman we are calling Lauren.

Once the egg donation agreement was signed, their egg donation cycle got underway. Lauren didn’t produce as many eggs as N&D had hoped; Lauren “only” produced eleven eggs but all eleven fertilized (Side Note: 100% fert rates are not something you should expect, it doesn’t always happen that all of a donor’s eggs will fertilize.  Nancy and Daniel got lucky). Nancy conceived twins from the first embryo transfer (now that is something you should expect and should discuss with your RE if you don’t feel prepared to parent two at once).  After watching the remaining pre-embryos which were not transferred to Nancy’s uterus, the clinic froze five blastocysts.  Off topic again: Nancy’s RE performed a day-3 pre-embryo transfer which, for reasons that exceed the scope of this blog, I am at a loss to explain.  Despite Nancy’s disappointment with the number of eggs retrieved, I would have thought the clinic would have done a day-5 or blastocyst transfer??

Nancy and Daniel are very happy and currently are considering whether or not to use their frozen pre-embryos.

If you have any thoughts or comments to add about your experience, please feel free to share them.  This blog is designed to help people achieve success in egg donation and if there’s something you think might help someone, go for it!

p.s. I don’t know whether any of this sounded familiar to you, but I did think that Nancy’s and Daniel’s decision-making process and the issues they faced, particularly those Nancy faced, were typical and helpful enough that I wanted to share them.  Nancy and Daniel’s story is discussed in much greater detail in my next book if you want to learn more about what they went through when finding their donor and negotiating their egg donation agreement.  More details about pub date to follow (I am under an editorial deadline which is a good thing because it means this thing will finally be finished!!!  I’ve only been working on the book for three years.  Enuf is enuf!).

 

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