Archive for March, 2014
March 31, 2014 | By: Liz | Filed under: Birth Certificates, Birth Orders, Gestational Carrier, Gestational Carrier Arrangements, Parentage Orders, Pre-Birth Orders, Questions about the Office, Sam Sex Parenting and Reproductive Law, Surrogacy, The Journey to Parenthood, Third-Party Assisted Reproduction
Sometimes I feel like people don’t get what I do for a living. At parties when someone asks me what I do and I tell them I am reproductive lawyer, I get a blank stare and an “uh huh” response. I then explain that I am a lawyer that helps people have babies. I may get a smile but I usually can tell that my fellow partygoer remains confused. He or she will often ask me a question about adoption, assuming that I am an adoption attorney. I next explain that while adoption law is part of my job, with my specific area of practice most of the time the adoption is just for one parent in a same-sex relationship who is seeking to establish parental rights after a surrogate birth. If I am really lucky I get to talk about third-party assisted reproduction and all the ways people can have babies these days–and all the risk that comes with this technology. And I am not talking about medical risks, or the risk of not getting pregnant, as third-party assisted reproductive technology (“Third Party ART”) is unbelievably successful. I am talking about the risks presented by the laws that may apply to these family building arrangements. Most people have no idea how complicated these laws are and how important my job can be to help ensure that all the work doctors are doing to help people become a family, results in a legally-recognized “forever” family.
And it is not just my fellow partygoer who fails to understand the importance of what I do with respect to Third-Party ART. Many doctors have no idea the complexity of the legal landscape their patients may be facing. So when Gay Parents to Be in partnership with RMA CT recently contacted me and told me about an upcoming event it was having with the Triangle Community Center in Connecticut, and that they needed a reproductive lawyer to help round out the panel, I jumped at the opportunity. How could I not participate when asked if I could help explain why a reproductive lawyer needs to be a part of a patients’ ART team, and why what I do really matters? Would I help? No brainer, just tell me where to go and when to be there.
Saturday, April 5th 12pm – 2pm
Triangle Community Center
618 West Avenue, Norwalk CT
I often think that although we are all blessed when we become parents, those of us who faced challenges in becoming parents are more appreciative of our children and our family. There are simple and seemingly insignificant things that couples that conceive without jumping through hoops take for granted, like the birth certificate with their name on it. For those people who may have to spend tens of thousands of dollars and most certainly need a team of doctors and nurses and other reproductive angels to have a baby, that birth certificate is the symbol or proof of their victorious transition to parenthood. The birth certificate is often the one document that says “forever” family more than any other.[i]
While Third-Party ART, like surrogacy, is helping more and more people achieve their dream of having a family, it also raises more and more legal issues about how we protect that family. My job often boils down to making sure that birth certificate is an “untouchable” document and to do that I need to be involved in the process just as early – sometimes even earlier – than the medical team. Preparing the legal landscape ahead of time is just as important as preparing a surrogate’s uterine lining. Just as a reproductive endocrinologist is going to monitor hormone levels and the thickness of a surrogate’s uterine lining in preparation for embryo transfer, one of my roles as a reproductive lawyer is to make sure everything that the medical ART team is doing to create this family, will be legally protected.
Most people entering into surrogacy arrangements understand that they need a contract with their surrogate. What they often fail to understand is that the contract isn’t just about addressing the relationship with the surrogate or the financial commitments being made to her. That surrogacy agreement is going to lay the foundation for obtaining a birth certificate and sometimes having the wrong wording, or not having specific wording in a surrogacy agreement can prevent the birth certificate from ever being issued, or being issued with the right people’s names on it. Although many states have statutes or cases that specifically provide mechanisms for obtaining this birth certificate, in far too many states the complexities regarding the establishment of parentage is far more complicated and/or downright tricky. Although a state may be “surrogacy friendly” the laws in that state may vary county-by-county and even judge-by-judge. Even more, as the country becomes friendlier to marriage equality, and state laws are becoming more progressive, the definition of what a family is may now include three parents, or “intimate partners” who share parenting responsibilities. It is this ever-changing legal landscape applicable to Third-Party ART that makes addressing the legal side of these family building plans essential.
As one of my colleagues has [not so] facetiously said, sometimes whether or not you can get a birth certificate comes down to which elevator button you are pushing in the courthouse. I am really thrilled that I am going to have this opportunity to explain what I do, and hopefully ensure that more people who are considering entering into Third-Party ART arrangements understand how reproductive lawyers can help them, when we can and should be helping them, and helping ensure that when it is time for them to get their birth certificate it (hopefully) doesn’t come down to which button they are pushing in the courthouse elevator. And if it does come down to elevator buttons, that there is confidence that the attorney who has been hired to press the elevator button can successfully navigate the legal landscape necessary to obtain that birth certificate.
[i] This blog does not address issues regarding the enforceability of birth certificates for same-sex couples.