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

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.

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.

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!).

The article was in the October 10th/17th edition of Newsweek, “You got your sperm where?”  The discussion in the article focused on how people are finding sperm donors (SD for short) through the internet (the “virtual” donor).  The article described one donor-recipient match and donation that was initiated through web contact and fulfilled via a donation made in a Starbucks bathroom in NYC.  Major yuck factor to that one.  Seriously, have you been in a Starbucks bathroom recently?  The line outside the bathroom will give you an indication of how actively they are used (hopefully not all for sperm donation purposes), and thus how potentially grimy they are.  I have a pretty high threshold for gross bathrooms and overall I think Starbucks does a good job keeping its bathrooms clean.  However, with the high traffic many of these bathrooms experience, you have to assume that they are crawling with germs.  And if you are trying to have a baby, at least to me, public bathrooms and sperm donation don’t make a great combination.  But to each his or her own, I suppose.

The thing that really got me, aside from the fact that this was taking place in Starbucks, was the lack of thought people were giving to what they are doing.  It’s one thing to go on a blind date with someone you met on an internet dating site.  To conceive a child from an online site — one that is not run by a sperm bank — seems a wee bit more frightening than agreeing to meet your average Tom, Dick or Harry for dinner or drinks.

One of the reasons people seem to be turning to online sources is to avoid the anonymity of sperm banks.  There is a sperm donor registry that is designed to help families created through anonymous donation, match the SD’s with the children conceived from the donations and to help children/adults conceived through sperm donation find their biological father.  The appeal of finding a random guy from whom you will receive donated sperm, and with whom you can establish some kind of non-anonymous but also non-parent-child relationship, is appealing to many people.  I get that.  No problem there.  Except, I don’t know, maybe some legal issues surrounding that lack of parent-child relationship. . . .

Known sperm donation agreements are some of the trickiest agreements a reproductive lawyer can draft.  I am always extremely careful when I draft them.  Why you ask?  Because, even though the goal of the agreement may be to avoid having the SD be liable for child support or retain any parental rights to the child conceived through the donation . . .  courts overturn them with surprising frequency.  All it takes are a couple of birthday cards signed “love Dad” and a court may well determine that, notwithstanding my carefully drafted known sperm donation agreement, the SD does indeed have parental rights, is liable for child support, and the child may even be able to inherit through “donor dad’s” estate.  Did any of us intend for that to happen when we sat down at the table to discuss what they wanted the agreement to accomplish?  No.  My clients usually want to have a friend donate sperm so that they can have a child (alone or with a partner), and have the comfort of knowing who the person is that is donating his genetic material.  All those “what-if” and “what is he like” questions can be answered later by the existence of a specific known SD.

If the SD and the recipient mom don’t want to have a parental relationship — for example two women in a relationship who intend to parent a child together but don’t want to use an anonymous sperm donor, and would like a close friend of theirs to donate his sperm (think along the lines of a well-known singer and her partner and another very well known male singer) — the sperm donation agreement becomes a critical component for recognition of the intended family unit.  The sperm donation agreement establishes what everyone intends to happen, and what everyone intends to be their respective rights and responsibilities in the future.  These intentions are set forth in writing prior to the conception of a child.  Most of the case law in the US that involves third-party assisted reproduction (including known sperm donation) looks to the parties’ intent at the time the child is conceived.  Provided that everyone sticks to the terms of the agreement, usually a good sperm donation agreement will be upheld if ever there are arguments, disagreements, or when and if someone suddenly wants something that was NOT intended when the agreement was drafted.  The thing is that just a few real-life events can cause that sperm donation agreement, and the parties’ intention, to come into question.  A court could decide that while the parties may have written down and signed an agreement that said one thing, their actions reveal a contrary intent.  Actions frequently speak louder than words when it comes to known sperm donation arrangements.

So let’s get back to the people who donated and received the sperm at Starbucks.  Do you think they took the time to consult a reproductive lawyer?  Did they consider what the consequences would be 10 years down the road if suddenly one person decided they wanted a different type of relationship or needed child support?  It didn’t sound like it from the article in Newsweek.  While their intent may have considered the prospective best interests of the child — having a person that the child could one day meet or speak to and thus avoid identity issues that plague many children conceived via anonymous sperm donation (thus giving rise to the donor registry I mentioned) — the reality of what they were doing and the lack of awareness of the long term ramifications are mind boggling.

According to the article, one man who is donating sperm through online forums, is asking the recipient to scream “make me pregnant!” or something like it during intercourse.  Let’s agree to not discuss the fact that they weren’t using medical professionals or a home insemination kit.  The statement the recipient is being asked to state in and of itself could be interpreted as an expression of their mutual agreement and intent to parent a child, TOGETHER.  Did the recipient of this sperm intend for this man to be the FATHER of her child?  I don’t believe she did.  Or did she?  Did the SD?

And hey, are we doing background medical checks of any kind?  Does anyone know if the people donating or receiving the sperm are healthy or otherwise able to parent a child?  What if the SD has an infectious disease?  What if the recipient is an ax-murderer?  Odds are they aren’t anything other than people with good and honorable intentions.  But if the law comes down to intent, don’t we owe it to the child to express that intent?

The internet is a wonderful place and it is a frightening place.  We all have heard horror stories stemming from internet match-making.  Let’s not add conception of a human being to those horror stories.  For anyone considering this type of sperm donation, and apparently there are plenty of people doing it, or even those seeking to enter into a known sperm donation with the assistance of medical professionals, do me a favor:  Find a reproductive lawyer or a family lawyer and talk about how you want to protect your family!

Maybe I am over-thinking this. Maybe it’s not different than someone who goes to a bar knowing she is ovulating, with the intent to hook-up with some guy and hope she gets pregnant.  At least the people going to Starbucks theoretically know each other’s real names and have some information about each other, and both know that a child is being conceived. Good intentions and lack of (legal) judgment aren’t a crime.  Then again, apparently Law & Order made an episode about this subject (maybe not involving a Starbucks sperm donor) and I would love to watch it.  I wonder what issues the writers of Law & Order found to address?

And really, I am just totally dumbfounded by this, someone donated his sperm in a Starbucks bathroom?  Wow.  What’s next? A mile-high  club for sperm donors?

The book is “Baby Proof” by Emily Giffin (author of Something Borrowed, recently made into a movie with Kate Hudson).

Written in the first person, the author is struggling through marital problems and decisions about whether or not to have a child.  As she is trying to sort out her own issues, her sister is going through treatment for infertility.  Author Emily Giffin does an amazing job of both describing the issues a person faces when contemplating living a life without having children (and the condemnation that may come with that decision).  And she does an even better job describing what her sister is going through and issues involved with egg donation and the dreaded NOvary, fears about birth mothers, open adoption — heck she even accurately addresses the differences between embryo donation and embryo adoption and the misuse of terminology . . . .  Seriously, you cover that one accurately (as did Ms. Giffin) and I HAVE to put you on the Stork Lawyer’s recommended reading list!!

Baby Proof is a great read and one that very clearly articulates the very complex landscape of third party assisted reproduction and adoption.  I tend to be really harsh and judgmental when it comes to reading other people’s — especially fertile people’s — interpretation of my world (both the part I live on a day-to-day basis and the part I work in) and my hat’s off to Ms. Giffin!  Baby Proof is politically and legally correct down to its core and it is still a fascinating read.

Baby Proof gives us a multi-faceted view of  the myriad of complicated emotional and legal issues faced by infertile couples and singles.  If you are going through infertility don’t be afraid to read this book.  It’s not preachy, critical, judgmental, hurtful, or voyeuristic.  Baby Proof looks at the issues infertile women face every day and with the precision of a plastic surgeon and her scalpel, the author manages to peel apart the very delicate skin (issues) involved when you’re dealing with ovarian reserve issues, third-party assisted reproduction, adoption, as well as the concerns women face as their biological clock ticks away and they lack a partner to help make a baby.

It’s a fun read and manages to be educational at the same time.  I totally was caught off guard.  I thought this was going to be some light chic lit for summer vaca.  Was I ever wrong!  For the first time in a very long time, I wound up thinking and marveling at the ability of someone who doesn’t live my life to totally understand my life.

I may know that she interviewed a reproductive lawyer but I still have to believe that she knows more about this topic than what one can learn from spending an afternoon being educated by someone like me.  I can’t help but think she must have more insight into infertility than just an interview would bring.  I mean she really GETS IT.  I tend to think that you can only understand this pain if you’ve lived it.  Granted the character in the book is going through a life crisis and is incredibly intellectual and so these issues are discussed through a filter of self-analysis . . . but even that, the self-analysis part of it, leads me to wonder if there isn’t some personal connection to infertility that I am unaware of.  Maybe I will re-read the acknowledgment section?  Maybe I missed a thank you to someone who shared their heart.  But if I didn’t miss it, then this is one book that understands the infertile woman (and maybe will help people find their way through their infertility to consider an option of family building that without this book they might not have understood or considered).

It’s been a long week and I am brain dead.  I hope I made the point I wanted to . . . I don’t typically think that it’s possible to understand what we go through and I don’t typically find that people get the legal issues involved in what I do everyday.  You know I analyze every movie and magazine article looking and hoping to find an accurate portrayal of the path to parenthood when you’re not a fertile person.  Did I finally just find one??

I think so.  Maybe I won’t just re-read the acknowledgments. Maybe I will re-read this book.  This might be a first.

Thanks Emily.  You done us proud.

I have to say I have a little bug up my arse today.  I just finished writing an article for the American Bar Association’s Family Advocate magazine, talking about why you need to draft egg donation agreements and what you need to include in them.  I also have been working on the same issue in my e-book.  But what’s really got me peeved is the amount of explaining I have to do with potential clients, or just people calling for a consult, about why egg donation agreements are so important.

In two words: parental rights.

I don’t know whether it is agencies trying to save their clients’ money or whether its clinics trying to make things easier but let me tell you that the consent forms you sign at your clinic doesn’t provide you and your soon to be larger family in the event your child gets sick and you need medical information from you donor (just one of the many benefits that can be addressed in an egg donation agreement).  And any representation that anyone makes to you about someone living in a “donor friendly” state thus you don’t have to be worried about parental rights, is only 1/4 correct.  If you are lucky enough to live in a state with an egg donation statute that is a huge plus, but I bet you anything that statute says something about the fact the someone, preferably you and your donor, sign some document stating that this statute is going to apply to your relationship and your donor isn’t going to have any rights or responsibilities with respect to any child conceived from your donation.

And even if the statute doesn’t require a legal document, egg donation agreements state the parties’ intent throughout the agreement and the law in the United States pretty much consistently relies on the parties’ intent as they enter into third party assisted reproductive arrangements, so statute or no statute, having a legal document that addresses your intent is critical.

There are ten key points on which you want to express your intent.  Other than parental rights, can you guess what the other nine might be?

This is your baby folks — or this is a baby you don’t want to have responsibility for if you are an egg donor.  This is a family and this is the rest of your life.  Why wouldn’t you take the time to at least speak with a reproductive lawyer in your area about whether the steps you are taking are sufficient to protect you and your family, or you from having an unwanted family?  One of my clients and I had this discussion one day.  Their agency was telling them that they didn’t need an egg donation agreement and that it was a waste of money and time.  Once I explained my top ten reasons to have an egg donation agreement, my former client was speechless for a few minutes.  And then he responded with:  ”when you put it that way, it seems like it’s kind of a no-brainer. . . . ”

I understand — all reproductive lawyers understand how expensive this process is and how overwhelming it is.  We all want the same thing for you.  A protected family or lack thereof.  If you can’t afford our fees, most of us will try and work with you but in the grand scheme of things what you spend on your egg donation agreement is pennies compared to what you are spending on the rest of the process and if you look at its value over time, well in the words of my former client, I think it’s a no brainer.

So anyone want to take a shot at the other 9 things on my top ten list?  Egg donation agreements run about 30 pages.  What the heck do we put in the agreement that could possibly make it so long?

Thanks for listening to me vent.  I look forward to posting a link to the article I wrote for the Family Advocate and I look forward to the publication of my e-book where I answer all these questions.  But in the meantime, feel free to ask me about it.  It’s your family or someone else’s . . . you should know what you might be missing.

p.s. this post wasn’t proofed so please forgive typos.

Well that has all changed.  Last weekend I was watching a movie with my DH (Dear Husband).  He had rented the film and I had agreed to watch it (despite an initial lack of interest) because the main character was played by Katherine Heigl, who is as we know, an adoptive mom.  Not only do I love her films in general but I always am willing to watch a movie where the actor is in real life a parent through ART (assisted reproductive technologies) or adoption.  And I am especially interested if the film involves parenting or the formation of a family.  Putting aside a desire to escape my life and enjoy the movie, I always wonder whether the actor’s personal experiences with infertility, ART or adoption will influence his or her choices as an actor.

To be honest, when DH proposed watching this film I had no idea what it was about.  I was inclined to pass as I had a vague recollection that the film had not been a tremendous success at the box office.  But when I heard that Katherine Heigl (who ranks #2 behind J.A. as one of my favorite female actresses) was one of the lead actors, I caved.  And what a good decision that turned out to be!

The movie in question is “Life as We Know It” starring KH and Josh Duhamel (JD).  You can check out a trailer at http://lifeasweknowitmovie.warnerbros.com/dvd/

In this movie KH and JD play the close friends of a couple who pass away, and who name KH/JD as their baby’s legal guardians.  Romantic comedy aside, the movie is a fantastic and very realistic portrayal of the Leap, and how the relationship between the parents can change.  As I was watching this movie, both my DH and I were struck by how much the movie reminded us of what it was like to suddenly go from being wanna-be parents to BOOM being parents.

I think the movie really resonated for me because I am an adoptive parent who had very little notice of our pending adoption and I had never really focused on what it would be like to be a parent (let’s face it I spent the entire time wanting a baby and never realistically envisioned what it would be like to have the baby and be a mom).  Once the movie really gets past the characters’ acceptance that they are now parents, there are some very insightful moments about the reality of being a parent and how different that reality is from your expectations.  Whether or not you take a baby care class as part of your adoption plan, I highly recommend this film because I think that it really shows you — and in a humorous, light-hearted manner — what you are in for when someone hands you that baby!  From changing that first poopy diaper, to installing baby gates and midnight runs to the pediatrician, I think that Life as We Know It is a great primer for prospective parents through adoption or assisted reproductive technologies like gestational surrogacy.

Most people who have gone through infertility tend to have blinders on about the reality of parenting.  Whether you only have 24 hours notice or ten months to prepare for your baby’s arrival, this film has some very poignant moments about what the transition feels like and what surprising issues parenting can present us with.  Best of all it’s fun to watch.  It is a surprisingly good romantic comedy, Josh Duhamel is total eye candy (and I won’t hold it against my DH that he thinks Katherine is eye candy too), and it’s sweet, has a happy ending and all that stuff.  So if you are on your way to parenthood after experiencing medical or social infertility, I think this movie is a Must See.

And not to totally discredit my intelligence, my DS (Dear Son) has turned me on to SpongeBob SqaurePants.  I had the unexpected pleasure this week (while cleaning up a child’s puke) of watching an episode of SpongeBob involving a baby scallop and SpongeBob’s experiences as a new parent.  This episode of SpongeBob presents a similarly hysterical and informative perspective of what the Leap is like to being a full time SAHM.  I can’t remember the title of the episode off the top of my head (I will check the DVR and post the name of the episode if I can find it), but suffice it to say that I could relate to SpongeBob’s adjustment to caring for a baby all day and all night while Patrick (his best friend) goes off to work every day as they simulate and satirize what its like to be new parents.

I totally and completely remember that in the beginning of my “maternity leave” I had a rough time.  By Wednesday night when DH walked through the door, I was an exhausted mess.  Thursday night, when DH returned from work and walked-in the door, I handed over DS and went upstairs to have a good exhausted-woman-cry-in-the-shower.  By Friday night, I was prepared for the hand-off at the door, and upon hand-off I bolted out of the house to have coffee at Starbucks (decaf of course b/c I was breastfeeding).

So what am I getting at?  ”Life as we know it” as parents is very different from life as we know it while waiting for the Stork.  I don’t really care whether or not you are taking baby care classes or infant CPR (although I think both are excellent ideas) because the reality of life as a new parent is vastly different than anything we can ever learn in school.  As infertile prospective parents we tend to be so focused on our goal of becoming parents that we lose sight of what we are in for when we are parents.  It is a transition the likes of which you just can’t understand until you are living it and why I call it the Leap.  Life As we Know It and even (surprisingly) Master SpongeBob, have nailed it on the head and I highly recommend watching them (when I find out the title of that SpongeBob episode, I will post it and maybe you can find it somewhere and watch it).  Both are totally and completely worth watching.

p.s. please note that I am not complaining about being a parent.  I love every minute of this crazy, full-catastrophe life I am living! I want more kids and my attitude now is much more about enjoying and being mindful of the joy in this experience.  I am just saying that these movies can help prepare you for the full-catastrophe aspect of parenting.

p.p.s.  If you have any other movies that you think are good to watch as prospective parents, post them here.  Maybe we can start a list of “Movies to Watch During the Wait”!!

To think about everything that I should be doing in the office but can’t.  To think about everything that I need to be writing:  my e-book on egg donation is pretty much finished but I haven’t had time to input the final edits or to speak with my design and production team about getting it ready for the marketplace; I have an article on egg donation and surrogacy contracts that is due to the American Bar Association in a matter of days; I have to talk to my publisher about revising The Infertility Survival Handbook; I want to write a blog about a RESOLVE event I co-hosted on March 24th at Bis.Co.Latte Cafe in NYC regarding the legal issues egg and embryo donation; and oh yeah I am supposed to be teaching a class on third-party assisted reproduction at a law school and I have to prepare the syllabus (that one may not happen).

To think about all the contracts that I need to draft and edit for clients.

To think about the new series of blogs I am working on (perhaps it too will become an e-book?) on the mind-body connection in dealing with and resolving infertility.  Thanks to a Facebook friend, I discovered a wealth of information on something called “Conscious Conception.”  I have a ton of research to do on Conscious Conception, it is a seed germinating in my mind and something I very much want to talk about.   Just this morning I was staffing out work in the office and we got into a long conversation about how much I believe faith plays in people’s ability to deal with and overcome fertility.

And yet, all I am capable of on this gorgeous sunny day is to THINK about the overwhelming amount of things that are filling my proverbial plate.  I am utterly and completely without the ability to deal with any of it today.  For today my goal is to be able to breathe.  One of the fundamental things in life which I must attend to if I am going to get back to these things, yes?  Yet, instead of recognizing the very important need to take care of my own health, I have been beating myself up for my inability to do my work.  I feel like I am drowning, literally and figuratively.

It was only upon stumbling across an issue of the Wellesley Alumnae Magazine and its cover article about “When Life Doesn’t Measure Up” and reading about how, when and why so many of my fellow Wellesley sisters feel like failures, that I realized that I feel like a failure for having pneumonia and not being able to do my work.  And with that thought, I was off and running on a journey of self-analysis that of course brought me right back to the world of fertility and the feelings of failure that come with it.

Apparently, my college magazine conducted some kind of a poll asking graduates to discuss their feelings about their satisfaction with their life and feelings of inadequacy, failure, or success in a variety of different contexts.  I don’t recall receiving a questionnaire in the mail or an email like this — must have missed out on contributing my own thoughts to this very profound poll.  The reasons women gave for feeling like a failure were incredibly diverse.  And yet, despite the very diverse reasons or situations my Wellesley sisters gave when describing their own issues with failure, including dealing with chronic illness, the article did not mention infertility or an inability to have children (or the choice not to have children) as raising issues of failure.  Certainly, someone among the thousands of Wellesley graduates has experienced difficulties conceiving and must have felt like a failure.  I did.  I do.  Why didn’t someone else talk about it?  The Dixie Chicks talk about it in their song “So Hard” . . . a ballad that haunts me every time I hear it.  It’s all about the feelings of failure and loss we have when we can’t conceive.  One out of every 8 Americans is dealing with infertility.  Why didn’t the Wellesley College Alumnae Magazine talk about it?  Especially at an all women’s college, you would think that a topic like infertility and failure related to something so integral to being a woman would be recognized and not continue to be shrouded in secrecy. The article talked about the shame my sisters felt about their various failures, the secrecy that surrounded them but infertility was not among them.  What gives?

The secrecy and shame surrounding infertility is pervasive.  Just as for my sisters who are wrestling with their own failures of a different nature, the article pointed out that all of them felt better by talking openly in the article about failure and its impact on their self-perception.

Indeed, the magazine itself was often a cause for Wellesley alumnae to feel failure.  By hearing about the success stories profiled in the magazine many women admitted that they felt that they had let down the school or that they failed to measure up to the “Wellesley standard” of being or becoming another Hillary Clinton.  The article concluded with the following statement:

“But maybe what we don’t know is what failures happened to those women before they became household names that eventually brought them to the point of celebration.  And until we hear those stories, too, we can’t begin to make new templates for success that acknowledge the inclusion of failure as part of a life well-lived.”

And this leads me to the following conclusions:

Until we hear stories about our feelings of failure and inadequacy arising from our infertility, and our subsequent success at overcoming them, we cannot begin to make those new templates for success that acknowledge how much stronger or sensitive we have become as a result of our infertility.

Until we hear stories about our feelings of failure and inadequacy arising from our infertility, we cannot begin to find faith that our own journey will end in success.  We need to be inspired by the success of our sisters (and brothers) who have gone before us and achieved that which we long for — a baby — even if that success means embracing an alternate route to parenthood such as surrogacy, egg or embryo donation, or adoption.

It is, as my Wellesley sisters say, in embracing the loss in which we gain the faith to succeed.  I wish there was no stigma to being infertile but I must confess that the lack of mention of infertility in this article really drove home for me the sense of the overwhelming stigma with which we live.  I have a serious issue with the Wellesley Alumnae Magazine for not bringing to light a discussion of how failing at something as intrinsic as becoming a mother can be so devastating to our sense of self-esteem, to our marriages, and to our sense of failure as a woman.  (I cannot fathom that not one woman responded to that poll and didn’t mention infertility and if that was the case, I am even more troubled by the statement that makes regarding how much we hide about our infertility).

Learning from others who share their own shame or other sense of failure about something with which we are all supposed to be able to do — conceive, carry and give birth to our children — is what will carry us through.  For others it is not necessarily biological or medical failure but a sense of frustration at being unable to conceive because we lack the essential components — we are socially infertile.  And learning from others who find ways beyond our social infertility will give us ideas and strength for achieving that which our sexual orientation precludes us from obtaining.

And as the wheels started turning and hit overdrive as I considered the article and my own sense of failure because I have pneumonia and am unable to work (and am thus letting down my clients to whom I truly want nothing more than to help have a child), and considered once again the stigma with which we live, I couldn’t stay silent.  I pulled out my laptop and curled up in bed to “think through” this article and my situation and put together the pieces of this puzzle.  My blog will now not only be devoted to discussing the concepts behind Conscious Conception, but it will be devoted to de-stigmatizing this disease.  I know there is a Wellesley sister out there somewhere who is struggling to defeat the NOvary™ or endometriosis, to locate a birth mother, to navigate the increasingly complicated red tape of Ethiopian adoption, or to find a way to establish the fact that she and her partner are both the legal mothers of the child one of them delivered and which they intend to parent together.

So in my failure of having pneumonia, new ideas and inspiration have been born for my blog and thus my day has turned into one of celebration.  And I ask you to please not be silent.  I took the pledge with RESOLVE not to remain silent and today my failure in being human and having pneumonia has given me an idea of how I can fulfill my pledge to RESOLVE.  My blog is a safe place where I hope to support people walking with me on this path, and to provide the occasional nugget of legal or medical information to move us another step forward on the path to parenthood.  And thus I ask you to talk about your shame.  Talk about your sense of failure.  Talk about your frustration, your anger or confusion. (And if you are a Wellesley alumnae, help me convince them to let me write an article about infertility).  Share your story here wherever you may be in your journey.  And I will try and find people to share with you how they conquered the NOvary, endometriosis, found birth mothers, survived the red tape of Ethiopian adoptions, or proven their joint parentage.

Because I know that if we continue to be silent and give in to this crazy stigma, we will never know what failures happened to those women (and men) among us before they became mothers (and fathers), and that eventually brought them to the point of celebration.  And until we hear those stories we can’t begin to make new templates for success that acknowledge the inclusion of infertility as part of a life with children.

And now for some random FAQ’s and reminders:

Yes, you can establish your parentage if you are a same-sex couple and one of you has a baby.  Depending on where you live the mechanisms for doing this will vary.  In some states you can file a legal action to have your parental rights established, in other states you may need or want to adopt (even if you are not married).  In some States and in some circumstances you may need or want to do both.

If you have a functioning uterus, egg donation is perhaps the most successful route to pregnancy for women who have issues with the NOvary™.  At many clinics, with a properly screened egg donor, live birth rates per egg donation are in the 60% range.  Yes, you read that correctly, you could have a 60% chance of conceiving a baby using an egg donor.  And among those that conceive using an egg donor, the rate of twin conceptions is in the 40% range (making a strong case for single embryo transfer).

If you are considering adoption but have financial concerns or are worried about wait times, relinquishment risks, or red tape, embryo donation is a rapidly growing path to parenthood.  Using embryos donated from another family who has cryopreserved embryos which they no longer wish to use to build their own family, you may have a 40% chance of conceiving a child.  In addition to the affordability of embryo donation and the high success rates, you have the opportunity to carry the child, control the uterine environment, and may have the ability to conceive more than one child (this will depend on the type of embryo donation you enter into, as well as the number and quality of the embryos donated to you).

If you don’t have a functioning uterus, gestational surrogacy is another option for becoming a parent.  Using either your own gametes (genetic material), or an embryo created from egg or sperm donation (or sometimes both), another woman can carry a child for you and you will have all legal and parental rights upon that child’s birth.  Surrogacy laws vary by State, and it’s far from inexpensive, but when done correctly, surrogacy is a wonderful means of building a family.

And let’s not forget what is now almost considered boring: IVF.  If you have a viable uterus, eggs and/or sperm but for other reasons have difficulty conceiving on your own, with the assistance of In Vitro Fertilization, your chances of conceiving get better every day.  With the improvement of the culture medium used to nourish embryos, together with advances in reproductive medicine, some families will have as high as a 70% chance of conceiving.  Although the vast majority of families using IVF will need more than one attempt before conceiving, this is a technology that should not be ignored.

Other things to consider are:

PGD, (Preimplantation Genetic Diagnosis).  This enables you to select only those embryos that appear chromosomally normal for embryo transfer in an IVF cycle.  For older infertility patients, those with a family history of hereditary illness, or those with recurrent pregnancy loss, PGD can increase your chances of conceiving a healthy baby.

ICSI, (Intracytoplasmic sperm injection).  This is where doctors inject the sperm into the egg to help facilitate fertilization.  For families with male factor infertility this can help side-step problems with sperm that might prevent it from fertilizing an egg.

DNA Fragmentation Assay.  This is a test performed on sperm to determine whether the sperm are chromosomally normal.  Although there is a large range of “grey area” where it is unclear whether the sperm are going to cause problems with conception or pregnancy loss, this is proving to be a very important aspect in solving cases of recurrent pregnancy loss, IVF failure, or otherwise diagnosing “hidden” infertility issues.

Blood Clotting Disorders and other immune issues.  Do you have unexplained pregnancy loss or IVF failure (with an egg donor)?  Go get a work-up from a hematologist or other doctor specializing in diagnosing harder to find infertility issues.  Sadly many physicians routinely overlook or discredit the influence or impact of blood clotting and/or immune issues on the ability of an embryo to implant in the uterus, or to the ongoing development of a baby.

Are you going to stay silent, or are you going to talk with me here about what you are feeling, what you are trying to do to overcome your infertility, or what you did that helped you overcome it?  Speak.  If not here, then find somewhere.  Please.

Today is the birthday of one of my children.  For privacy reasons I am going to call him James, but that isn’t the name we gave him.

On this day several years ago my husband and I, and our son, were racing in our car to meet a birth mother who was in labor.  I had been talking with this birth mother for many months and we had a solid and even loving relationship.  I felt a special bond with her and I was thrilled when she invited me to attend her baby’s birth.  Unfortunately, my husband and I just missed James’s birth, but we were there with his birth mother within hours of his arrival in this world.

While nurses frantically attended to James’s birth mother due to complications from his birth, my husband and I sat on a couch in the family area of the maternity center and held our new son.  Aware of my plans to breast feed James, a breast feeding specialist came by to help me get James settled and contentedly nursing.  Later that evening the social worker from our adoption agency arrived and after getting checked out by the attending pediatrician and approved for discharge, the social worker went in to sit with James’s birth mother and discuss whether she was ready to sign her relinquishment forms.

Every state law varies as to when a birth mother can sign these documents — most states require that birth parents have to wait a day or even more after the baby’s birth before the birth parents can sign the appropriate legal documents.  Under the laws of the state that was governing our adoption, James’s birth mother could sign her relinquishment papers at any time after he was born.  She had a relatively short period of time after signing them in which she could choose to parent and after that period of time her parental rights (and those of James’s birth father) would automatically be terminated.  She could also choose to appear in court before the time period had ended and relinquish her parental rights even earlier.  We had discussed it many times and she had decided to appear in court; she didn’t want to feel the pressure of waiting for the days to pass before the adoption was irrevocable.

After what seemed like an endless visit, our social worker came out and told us that James’s birth mother had signed the papers and we could go home with James that night!  We were told his birth father had already signed the papers earlier that day. Elated but still nervous, my husband packed up our things and collected our older son’s toys off of the floor where he was playing, while I finished breast feeding.  I visited with James’s birth mother and we said a very tearful goodbye.

Exhausted from a long drive and a very emotional day, we drove to our hotel now a family of four.  The next several days were a blur while we waited for ICPC approval to drive home.  When you adopt a child from a state that is different from where you live, The Interstate Compact on the Placement of Children (ICPC) requires that both the state in which the child is born and the state where you live approve the adoption; each state reviews all of the requisite paperwork to ensure that it complies with the law and once you have approval from both states you can travel home.  It seemed like we were in a state that had a very slow ICPC office.

Anyone who has gone through it knows that living in a hotel with a newborn while waiting for ICPC approval is excruciating.  We filled the days with a visit to a local pediatrician, introducing our older son (still an infant himself) to his new brother, meeting James’s birth grand parents, and with me learning to juggle breast feeding two babies.  Several days after bringing James home, while we were getting up in the morning and getting organized for another day of waiting for ICPC approval, the phone rang.  My husband and I both jumped for the phone assuming it was our social worker calling to tell us we had received approval to go home.  We were not so lucky.

She was instead calling to say that James’s birth mother had changed her mind and chosen to parent.  She wanted James.  His birth father still supported the adoption plan but wanted to support the mother of his son.  He thus advised our adoption agency that he too was choosing to parent.

Devastated and frightened, we spoke with the attorney from our adoption agency to review our legal options.  The good news was that the laws of the state governing our adoption were very favorable to adoptive parents.  Some states automatically return a baby to its birth mother or father when she/he chooses to parent and the adoptive parents face an uphill battle to regain custody and adopt the baby.  It was the reverse for us.  If we chose to fight to keep James, his birth parents were facing an uphill battle to prove that they would provide a safe and loving home for James.

After talking about it with our attorney and our social worker, and having a long heart to heart conversation, my husband and I agreed that we wanted to honor James’s birth mother’s decision.  Although we were heartbroken beyond measure, we knew in our hearts that this was what was best for James.  I packed up a small bag of things that James liked and that would smell familiar to him.  I breast fed him one last time and told him how much we loved him and that he would always be a part of my heart.  Crying, I tucked him into his car seat and my husband handed the bag and the car seat to our social worker.  She too was crying.

And James went back to his birth family.

No longer restricted by ICPC laws, we immediately packed up the car. The drive home seemed endless.   I sat in the back seat with our other son, unable to think.  The entire car ride I don’t think my husband or I said a word to each other.  We weren’t angry, we were just very, very sad.  I saved a small photo album of pictures of all of us, and a box with some of the clothes he wore when he was with us.  When I got home and walked through the front door carrying an empty car seat instead of two full car seats, it hit me and it hit me hard.  I started grieving at a depth I didn’t even know existed.  There were a few days that I don’t know how I survived.  I think that had we not already had a child I wouldn’t have been able to deal with the loss of James.  It didn’t matter that I knew we made the right decision, it still felt like he had died.  That is, and was, the only way I could deal with my feelings.  For me, James died several days after he was born and every year on his birthday and on the day “he went back” I have hidden under the covers and grieved.

A few years ago I accidentally found out through our adoption agency that “James” is doing well and is living with his birth mother.  But that wasn’t MY James.  It was someone else’s child they were talking about.  My husband asked me if it made me feel better to know that he was safe and loved, and to be honest, it didn’t.  It didn’t make it better.  Sure I was glad he was healthy and happy but it wasn’t MY child who was healthy and happy.  MY child had died.  Even though we never regretted our decision, it still felt like he had died; and a piece of me died with him.

This year, however, for reasons I am at a loss to explain, it isn’t as painful as it used to be.  I woke up knowing exactly what day it is but the grief was not overwhelming.  I didn’t want to hide under the covers.  In fact, I wanted to go straight into my office and help someone have a baby, TODAY.  People have been telling me for years that it would get easier and I never believed them.  But they were right, finally the day has come when it is easier to bear his loss.

I sent my husband a text message a little while ago wishing James a happy birthday and then I kissed my daughter and my other son.  And I went on with my day trying to help someone get closer to being a mother or father.

I did not know much about relinquishment and revocation rights when I started pursuing adoption with my husband.  I knew that there was always a risk a birth mother could choose to parent — and for what it is worth, I have since learned that more than 98% of birth mothers and fathers who choose to parent, do so before the adoptive parent takes the baby home.  But I didn’t know that then and it wouldn’t have stopped us from taking James home from the hospital.  At the time, his birth mother seemed resolute in her decision to place James for adoption and that is all that I thought mattered.

I also didn’t know the importance or nuances of the laws regarding revocation of consent.  I am glad our adoption agency found such a good attorney for us, one who advised us regarding the advantages of using the laws of the state where we lived to govern the adoption rather than the laws of the state where James was born.  Although the outcome would have been the same, we would not have had any choice to fight for James had we used the laws of the state where he was born.  (For reasons other than those surrounding relinquishment and revocation, James’s birth mother elected to use the laws of the state where we lived rather than where she planned on delivering. Typically it is the birth mother’s choice as to what law will apply to your adoption plan).

I never thought I would need to take advantage of those laws, but when faced with the enormous decision of whether or not to fight for James it was comforting and important for us to know that while prospective legal proceedings would be taking place, James would live with us (his birth mother and father would be given regular visitation), and unless they had a very compelling case we were told we had a very good chance that a  Judge would determine that James would stay with us, forever.

Do I recommend going into your adoption with a contingency plan for what would happen if you were in my shoes?  Absolutely not!  Statistics and my own experience as an adoption attorney all indicate that what happened to us won’t happen to the vast, vast majority of adoptive parents.  But I did do something stupid in not knowing more about adoption and how the laws in various states would impact potential adoption plans.  It is really important to know when and under what circumstances a birth family can choose to parent, when the adoption becomes irrevocable and even more important for many prospective adoptive parents, how long it is before a birth parent can even sign the documents necessary to relinquish their parental rights.  If you know this information in advance, you might choose not to advertise in a state where the laws require you to wait a longer period of time for the relinquishment documents to become irrevocable, or choose to advertise in a state where relinquishment documents are irrevocable upon signing.

Knowledge and information are power.  If you are pursuing a domestic newborn adoption, find out about the laws of the states in which you are advertising or those of the states in which you live and where the birth parents live.  Talk to your adoption professional about what your options are at various points in time and think about what you can handle emotionally.  For most prospective adoptive parents, there has already been a period of infertility treatment and loss that has taken place before their adoption journey starts.  You may need to factor in what you’ve already been through when you are thinking about this stuff.  And please keep in mind that sometimes you don’t have a choice and you have to use a particular state’s laws.  But most adoptive parents don’t think about this first and don’t know what their rights are or what they could be if they made certain decisions.

I am always saddened by stories I hear of people being involved in adoptions where they had no awareness of the legal issues presented by the location of the birth parents, or of the legal implications presented by a birth father situation or the existence of multiple potential birth fathers.  Do your research before you start out or while you are going through the process.  Initiate conversations with the adoption professionals you are using as you are making decisions and taking steps along the path toward adoptive parenthood.

My husband and I were very lucky that our agency had selected such a good attorney who made some very good and practical decisions that benefited both James’s birth mother and us as we embarked on our adoption plan together.  It probably wouldn’t have changed anything had we not been so well-informed but I am glad that we did have all the information to make an educated decision.

James is where he belongs, safe in my husband’s and my heart and a very special scrapbook.  And there is a very happy little boy somewhere celebrating his birthday with his mother, just as it was, and is meant to be.  Happy birthday baby!