So I wanted some inspiration from song writers and I typed in an artist that usually has some words of wisdom for me. The song that popped up when I entered the artist (who shall remain nameless) was all about love and family. And so was the next, and the next, and the next, and the next.  Every song that has followed as I have typed and deleted, has been about love and family.  I didn’t pick that initial track or any that have followed it but clearly the Universe was telling me I am on the right track to have chosen to stop my day and talk about what it means to be infertile at the holiest of holy days for those who are struggling to conceive.

I have wanted to write all week and have been suffering from horrible writer’s block.  My colleague Amy Demma pushed me (check out her blog http://www.eggdonationtoday.com/).  My clients asked me.  My meditation quieted my mind so I could figure out what I wanted to say.  Even if only to myself.  And the music is telling me to share this with you.  To share something very profound that happened to me recently and has changed, finally changed how I feel about Mother’s Day.  And no, it’s not about my children.

How many times today have I been asked what do I want for Mother’s Day?  Countless.  I have not had a single response over these many years than to ask that I be permitted to wear my pj’s all day and not have to face the world (sound familiar?  I think I’ve said the same thing all but two years out of the last 15).  But as I sat down to write this, I realized something. I finally got my Mother’s Day present, a little early.  And no it’s not my children.

My infertility has changed my life but it hasn’t changed me.  I have wonderful new people in my life because of my infertility.  I have a wonderful RE with whom I still stay in touch after 10 years and who held my hand through what were then the darkest days of my life. I have a new career that I love and that revolves around my barren uterus. I have published two books, one of them a best-selling cult classic that 8 years and 9 printings after its initial publication still moves people to write me letters, send me facebook messages, or email me how much my words helped them get through what were their darkest days.  But Mother’s Day still sucked.  Having children did NOT make Mother’s Day better for me.

I just underwent a transformation of epic proportion and that’s where we start this blog.  I thought my infertility transformed my life.  The new friends, the career.  Nope.

I am talking about a different kind of transformation.  And that’s not to say my infertility didn’t transform me.  It was a f@##&^%g  awful gift but man what a gift it was.  And what gifts it gave me.  And no I am not talking about my children.

The gift I am talking about is how my infertility started to open me up.  To learn to open up to me.  To realize me.  It was the first of what became a series of events that have shown me who I am and who I want to be.  And no I am not talking about being a mother.

I recently went through another experience that was almost as painful as my miscarriages, my HSG, my laporoscopies, my countless IVF cycles, and the despair and fear that I felt throughout that time.

And in the middle of this more recent experience, I let go.  I didn’t give up.  I didn’t surrender.  There was nothing defeating about the letting go.  In fact it was completely the opposite of all the negative emotion I felt during my infertility.  I sat still after a meditation in which I had begged and pleaded for someone or something to help me take away this pain, this constant pain and ache I felt in my heart.  In my soul.  And as I sat in the stillness there was a voice.  A Voice that told me I didn’t have to feel pain.  I had never had to feel pain.  I didn’t have to feel sadness.  I had never had to feel sadness.

I questioned this voice.  Not feel sadness when I lost a child growing inside me?  Not feel sadness when a birth mother requested her child be returned to her?  Not to feel sadness that I still haven’t had a baby grow inside me?  Seriously?

The lawyer in me came out and argued with this Voice but the lawyer, she did not win.

There was the understanding that I can have a barren uterus and find happiness in this moment, in every moment.  There was the understanding that I could choose to live through what I was going through fighting, crying, screaming, and arguing.  Just as I had through my infertility.  I could choose to live through my current experience resisting it.  I would probably make lemonade  out of what I had been going through.  I could create another best-seller perhaps?  I could knit another afghan?  I could develop another business?  The options were endless for fighting my way through the experience and even put a smiley face on the end result.  But the realization was that it wasn’t worth the fight.  Why was I fighting?  There was no more trying to make lemonade out of lemons for me.  There was the simple reality that lemons exist and that it is okay.

So I sat there mulling over this concept.  Call it Acceptance.  Release.  Trust.  And I realized that I hadn’t accepted my infertility.  I hadn’t released my demons.  They still ruled me.  My current experience was controlling me.  I was not controlling it.  Suddenly my world was upside down.  I had everything I ever wanted.  I HAVE CHILDREN.  I am a MOTHER.  And I wasn’t happy.  The Voice was telling me how unhappy I was and how pointless and needless it was to be unhappy.

What?

No, I argued with the Voice, I wasn’t happy because of my current situation.  I was justified.

No.

No shouted the Voice.

The Voice laughed at me.  I was speechless.  Now for those of you who know me, me being truly speechless is a rare event.  A very rare event.

So I sat in the speechlessness.  I decided to listen to the Voice and not argue with it.  I figured that anyone who can render me speechless is worth listening to.

When was the last time you were ever truly happy it asked me.  Do you even know what happiness is?

I did know what happiness was.  Through meditation I had felt it.  Through meditation I had felt joy.  Pure unadulterated joy.  yes.  Yes.

I then told the Voice I know what feeling it is to which you refer.

And then it hit me. Or should I say it washed over me.

I didn’t have to wait for anything to happen to feel that joy.  If I could feel joy in meditation, I could feel joy or happiness in any minute of any day and in any situation.

I could have felt happy while waiting for my children instead of frustration, anger, and all that pain.

I could choose to feel happy now instead of dreading what was going on around me.  I had control over how I felt.  I had control over my thoughts.

And that’s when the Release came.  The feeling of utter calm, serenity and peace.  I have never, EVER felt that before.  Not even as a child.  Not even holding my children.  This was something so completely and utterly NEW.

And I suddenly trusted that was going on around me was okay and I would be okay and it would be okay.  I realized it was okay that I had been angry. It was okay that I had judged myself for being angry.  It was okay to have a barren uterus.  It was okay.  Everything was okay.

It was all gone.  Everything.  No hurt.

No I hadn’t taken any drugs.  No I wasn’t hallucinating.  I am not sure whether it was the result of my meditation or whether it was the culmination of years of anguish but I suddenly no longer wanted to feel anything other than what I was feeling in THAT moment.  I didn’t have to fight to feel this.  I didn’t have to “win” to feel this.  I didn’t have to have a baby to feel this. I could simply choose to FEEL this.  Feel Happy.

So where am I going with all this?  Mother’s Day is a sacred day for a woman.  Any woman.  A woman with children wants to celebrate.  A woman without children wishes she could celebrate.  A woman who chooses not to have children wants to celebrate other mother’s on mother’s day.  This Sunday is ALL about being a mother and if you aren’t a mother on Sunday when you want to be, the pain is overwhelming.  It is.  Really it is.  Or is it?

It doesn’t have to be.  Can you try to let it go?  Can you try to break through to a slightly better feeling place?  I know you can’t jump from where you are today as you fight with a NOvary.  But you can choose to let go of the emotion you are feeling right now and find a feeling that is just a little bit better than where you are.  You could even choose to stretch a little further and trust that there will be a happy ending and you don’t have to make lemonade to have the happy ending.  You can just trust that the happy ending is coming and then let it come.

Know that YOUR Mother’s Day is coming.  I promise.

One day this holiday isn’t going to hurt.  You aren’t going to want to curl up in your pj’s and escape.  And you can even let THIS Mother’s Day be the first time it doesn’t hurt.

I have been to hell and back, just like you.  I was going through hell again and I was able to just let it all go.  Let it all go and feel the quiet, the stillness, and the peace wash over me.  From there came the better feelings and then the joy.  I smile now.  Every day I smile. I laugh.  I used to have a constant scowl.  Now people don’t recognize me when they see me.  Even my mother didn’t recognize me after this . . . this release.

I am today a different person than I used to be.  I can’t change the past and I don’t want to.  But I can change today and tonight and this weekend.  I can change this Mother’s Day.  I can be happy this Mother’s day.  For the first time.  The Mother’s Day demon is gone.  In fact they are almost all gone.  And those that aren’t gone are being released one by one.  Because once you figure out how to release and accept what is going on, how to allow things to unfold around you with excitement instead of fear, the demons don’t have a chance.  I am not saying that once you find how you can release and accept what is going on you’re going to get pregnant or adopt tomorrow .  I am saying none of it will matter.  Because you will know in your heart that your Mother’s Day is coming.

Just like I know that this Mother’s Day, I am going to stay in my pj’s.  And I am doing it because that is what makes me Happy.  I am going to lie still and listen to my children’s laughter and probably some fights and tears too.  And I am going to know that whatever is going on it’s going to be okay.

Do I still want another baby?  OF COURSE.

Do I still want to TRY to have another baby?  OF COURSE.

But I am not sad.  I am not fighting.  I am not angry.  I am not feeling any of those horrible emotions that have been eating me up since . . . since that first HSG?  I am content.  I am free.  I am okay.  I am okay if I don’t even feel a baby kick inside me.  I never thought I would ever, ever be able to say that.  But it’s true.  I have every desire and expectation that I can have whatever I dream about, whatever I want.  But I don’t have to fight to get there.  It will come when it’s time.  And if it doesn’t come?

It’s okay.

And what about the Voice?  That was me.  The Voice is me.  The real me.  The me who knows more than I do.  There’s one inside you too.  Go find her.  Grab her.  Hold her.  Thank her.  And then celebrate your FIRST Mother’s day with her.  She’s a pretty awesome person.

She’s you!

Love,

Liz

p.s I am not proofing this post as I believe that if I proof it I will change it and it won’t be honest anymore.  I am not perfect.  I make mistakes.  I makye typos.  And that is okay too.  And by the way it’s okay if you can’t be Happy this Mother’s Day.  Just try to find a better feeling.  Anything better than what you feel right now.  Because that is the beginning of finding your path to acceptance, peace and happiness.

Happy

Mother’s

Day

to YOU!

So here I am with this beautiful picture and I am wondering why I don’t advocate for non-gestational breastfeeding anymore?  Maybe it’s because at the seminars I have attended and at which I was asked to speak on the topic, very few women attended (this particular seminar always seems to be offered at the very end of a very long day and I would bet a lot of money that if they held the seminar at an earlier time the attendance would be better).  Maybe it’s because of my own guilt that I didn’t nurse longer?  Last summer I read a great book called The Milk Memos which I gave to a client who did breast feed her child after a surrogate birth.  The Milk Memos is more about the transition back to work when you are nursing, but a lot of the issues that come up are issues that are faced by non-gestational breast feeders and I found it really helpful – albeit several years after the fact.  After I finished the book I was really angry at myself that I stopped nursing when I did.  At the time I stopped, I was going to have surgery that would have required me to “pump and dump” for at least two weeks and I hated pumping (“pump and dump” is an expression that refers to pumping breast milk which you then, for any number of reasons, have to throw out).  A combination of the thought of pumping day and night just to maintain my supply until I was no longer taking medication that made my breast milk unsafe for her to drink, and the fact that I would be dumping the milk . . . I don’t know I guess I just decided it wasn’t worth the bother.  I also thought it would be rather cumbersome and painful to try and pump after having had back surgery.  It turned out to be a big mistake and one that I am reminded of daily by my DD (dear daughter).  So here I am this morning, mesmerized by the picture which is reminding me of what a beautiful experience breast feeding can be and I realize what a disservice I am doing by not advocating for NON-GESTATIONAL BREAST FEEDING!

Most people don’t even know that you can do it, or that it can be successful.  I think the general assumption is that even if you make milk, you won’t make enough milk to fully meet a baby’s needs so why deal with the hassle?  But even when you don’t make a lot of milk and have to use a nursing supplement of some kind (either a Lact-Aid^® or an SNS, or formula in a bottle), the physical closeness provided by the experience is incredibly rewarding and some would say important enough not to ignore.  Even more so when the baby didn’t get to spend the previous ten months in your belly hearing your voice every day and bonding with you before birth.  There are studies that show that if a baby is put on her mother’s chest within minutes after birth and stays there for as little as 20 minutes, that the baby can learn to identify her mother’s smell, thus beginning the bonding process.  I believe that for those of us who can’t be in the delivery room we can still achieve the same instinctive bonding through breast feeding, even if it starts days, weeks, or months after birth.  Another point is that many of us can be present at delivery (more likely in a surrogacy arrangement than in an adoption) and could ask to have the baby similarly placed on our chest immediately after birth in order to facilitate this immediate bonding.  There are also studies about how important touch is to a baby’s neurological growth and development.  “Kangaroo care” is routinely used in NICU’s to help at-risk newborns.  Thus, the physical closeness and skin on skin contact provided by non-gestational breast feeding can only be a positive for the baby.  And the bonding it provides to us moms isn’t insignificant either.

I had horrible post-adoption depression with both my kids.  I think one of the things that snapped me out of it was the ability to snuggle and hold them so close to me.  I was scared to bond with my each of my babies because I was afraid someone would take my baby away from me.  It also was very surreal and I couldn’t wrap my brain around what was really happening after all those years of infertility — it was such a huge leap to suddenly be a parent, I didn’t know what to do emotionally.  But having this baby at my breast, looking at me and touching me, forced me to face facts, face my fears, and move past them.  It also helped me heal from all the years of IVF and miscarriages.  All the parts of me that were broken, the sense that I had lost the essence of being a woman, disappeared when I had a baby at my breast.  Breast feeding did more for my destroyed self-esteem than years and years of therapy.  I felt whole in a way that I don’t think I ever would have been able to achieve if I hadn’t breast fed.

So there you have it.  A quick little piece of my mind about why women who are having babies without a birthing experience can and should consider breast feeding their baby, or as the case may be in a surrogacy, babies.

How you do it as an entirely different discussion.  I wrote about it in The Ultimate Insider’s Guide to Adoption (Warner Books 2006), and I will post a blog about how to go about inducing lactation.  But for today, I am enjoying the bliss that this picture evokes in me, and has made me realize that I should be encouraging my clients and other women who want help doing this to DO IT!  And for what it’s worth, I so loved breast feeding that – and I am not kidding – I very much want to have another baby JUST so I can have this experience again.  If I am blessed with another child, you can bet that I will do it for as long as humanly possible.

How beautiful is this?

I want to know what ACID or other hallucinogenic drug was put in the water of every member of every state legislature (heck let’s add congress) which are either proposing or passing amendments which declare that preembryos  are to be afforded the same legal status as a  full-grown-eighteen-year-old-human being , defining how many times a man may masturbate in furtherance of the donation of his sperm , or defining who can prescribe oral contraceptives, like someone’s boss.

I’d like to propose an amendment to the food and drug law which declares that any person consuming this “acid” or other hallucinogenic drug whether voluntarily or involunarily, be sentenced to life without sex and life without children (the logical result of forced abstinence).

It’s been a long day and I am tired so perhaps I don’t make a coherent point; although I am drafting a more detailed legal explanation of this stuff, (are you familiar with my blog, you know the one you are reading right now and the one the ABA likes well-enough to deem one of it’s top “blawgs”–although maybe not so much after I post this little explanation), but in the meantime,

Doctor’s, paging all doctors:  do you realize that with the passage of these “personhood amendments” it is inevitable that the following sentence will one day be uttered : “OOPS I dropped the petri dish, guess I better call my criminal defense lawyer because I am guilty of negligent homicide!”

Guys, Men, Boys, are you out there?  Do you really like the slippery slope you are on here?  Right now we are just talking about masturbation for purposes of sperm donation but how far off are we — with passage of a law like this — from saying that masturbation ain’t okay because . . . (let me tell you your freedom of religion clause does NOT go here).

Ladies, girls, women, babes, let’s be real now . . . we all take them at one point or another.  One study I read said that more than 90% of women of reproductive age take oral contraceptives at some point in their reproductive life.  I personally thought this was an issue long ago resolved by the US Supreme Court but I guess it’s an issue again and now our boss gets to decide whether our insurance will pay for them (by the way, they ain’t cheap when you are paying out-of-pocket).

Seriously, where has MY America gone?  We are suddenly on this slope which has the potential to erode personal, sexual and reproductive freedom in ways never before imagined.  I have to believe the founding fathers would have objected to the masturbation thing.  Why is no one saying anything about this?  I have not heard one peep from a doctor who is now liable for all the little lives in cryopreservation in their fertility clinic in Oklahoma.  Docs, don’t turn to us lawyer’s for too much sympathy — where was your voice in the debates against this law?  I didn’t hear you in New York and now we are dealing with this stuff here.  New York, one of the States I am proud to live in because of its progressive stance on same-sex marriage.  Wow, never thought of this before . . . assuming the slippery slope (that is such a poor metaphor, I am sorry but it is a legal term of art) gets really slippery and this bill passes, then how far away is the State from telling us when and how we can have sex, yet another issue that I thought the US Supreme Court resolved.  My wonderful progressive state may not be so progressive.  Not so much.  No.

Why aren’t people speaking up?  Don’t you get how dangerous these statutes/laws are?  Every day we are dialing back United States laws by decades . . . what’s next equal protection?  No birth control seems like an equal protection issue to me, sounds like there are some potentially serious issues are facing us.  SPEAK UP.

Please join me:

“I’m mad as hell, and I’m not going to take it anymore!”

I guess you can ignore me if you’re not worried about being guilty for killing preembryos, in jail for masturbating too many times, or pregnant because you couldn’t afford to pay for your oral contraceptives that your boss wouldn’t cover under your health insurance.

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.