Archive for the ‘Current Affairs’ Category
February 15, 2013 | By: Liz | Filed under: Current Affairs,Deadly Silence,Faith and Infertility,infertility in the media,Infertility In The Movies etc.,Infertility on Television,IVF,Miscarriage,Peace to Parenthood,Personal Musings,Recurrent Pregnancy Loss,Stillbirth,The Journey to Parenthood,Thinking Out Loud,Third-Party Assisted Reproduction
The shrowd of silence around stillbirth and pregnancy loss finally is being lifted. Someone is making a documentary about miscarriage, recurrent pregnancy loss, and stillbirth. This morning I watched the trailer of “Still” a documentary devoted to raising awareness of the pain of the loss of a pregnancy, a child born too soon, or a stillbirth. I think “Still” may focus more on stillbirth or pre-term delivery, but some of the articles I read as I researched its production indicated that the documentary intends to address recurrent pregnancy loss and/or miscarriage more than is touched upon in this trailer.
As I watched the trailer I was reminded of a long call I had with a new client this week. It is rare that I have a client who has a similar background to my own experience with infertility. Like me she has experienced 12 unexplained pregnancy losses (although I sort of stopped counting about a year ago when I went through it again . . . something about hitting the number 13 and I really decided it didn’t matter how many I had, I have had enough, one is enough). Only in addition to experiencing a number of first term (non-chemical) pregnancy losses, my new client also lost pregnancies in the second trimester and near the beginning of the third trimester. We had a lengthy conversation about how isolating it is, how lonely it is, how there is no person other than your partner or spouse who “gets it” (and even then sometimes perhaps they don’t totally get it because it isn’t their body), and how the silence that surrounds pregnancy loss can engulf one’s life, one’s existence. Our call also reminded me of a blog I posted about a gravestone I once saw that marked the death of fetus. As I commented in that blog, it wasn’t a pro-life stunt. It was a family who had been given permission not only to mark the death of their baby while in utero (or loss of their pregnancy) but to recognize all those other families that have suffered the same pain. In silence.
Reproductive medicine has provided so many advances to assist infertile couples in achieving their dreamed of family but recurrent pregnancy loss remains largely unexplained. While theories abound, there are far too many of us who don’t know why this happens to us, repeatedly. Reproductive medicine and reproductive law now give us the option of having our biological child carried by someone who is likely to deliver that child when we can’t. Indeed, the option to use a surrogate after experiencing pregnancy loss is perhaps the driving force behind at least half of my clients who come to me to assist them with legal agreements as they begin their journey using a surrogate. As is the case with the call and the client I just mentioned.
As many of you know, in the absence of an explanation of why my babies die, I was too frightened that a surrogate might lose my child. I couldn’t ask another woman to risk experiencing the pain I have dealt with so many times. Adoption was always something my husband and I had wanted to pursue so when we were faced with the [dreaded] conversation where our doctor told us we were out of options other than surrogacy or adoption, it was a no-brainer for us. It was going to be adoption. And as one of the women in the trailer for “Still” points out, I wouldn’t turn back the clock or make different decisions; because without those pregnancy losses I wouldn’t be parenting the two beautiful children I have now. I cannot imagine a life without these particular little souls in it. It seems like a heartbreaking price to pay but as I told my new client, one day when this is all over and you are holding your baby in your arms, it will make sense and you will know that but for all that came before (all 12 of those horrendously difficult pregnancy losses) this little baby wouldn’t be yours.
But as she journeys toward that day where she hopefully does feel that sense of peace and gratitude for the child in her arms, she is left with a huge void. She has no one to talk to. I had no one to talk to. Even my best IVF friends didn’t understand how I felt. Excuse me: how I FEEL. I still feel pain on a day that one of my longtime friend’s celebrates, the day she heard the heartbeat of each of the babies she was carrying. I don’t begrudge her that joy. I celebrate with her. But for me, inside, it always is a reminder of the miscarriage that I experienced just a few days earlier. My client and I share a special bond, one of knowing what each carries inside her and the thoughts that creep into our mind throughout the day. Thoughts that largely go un-shared with anyone.
Will “Still” do justice to this topic, to this diagnosis, to the countless women and men who have endured the loss of a life growing inside them or one that came into the world far too early to survive? I think so. I hope so. Because I would like nothing more than for women like me who are going through what I went through, women like my new client, to have a voice in the reproductive community. To have doctors pay attention to our kind of infertility. To have better resources and support groups. To just plain have a voice to express their pain. Amazing options for family building notwithstanding, the pain associated with recurrent pregnancy loss, miscarriage, and stillbirth shouldn’t continue to be shrouded in silence.
And so today I thank the people behind this documentary entitled “Still”. THANK YOU for initiating a dialogue that is long overdue.
And one final note, to all those physicians who have dedicated their careers to exploring the mystery of recurrent pregnancy loss . . . THANK YOU.
If you would like to watch the trailer click here
January 8, 2013 | By: Liz | Filed under: anonymous sperm donation,Current Affairs,Financing Fertility Treament or Adoption,In the News,infertility in the media,Infertility on Television,Insurance for Infertility,known sperm donation,Personal Musings,Same Sex Parenting and Reproductive Law,Thinking Out Loud,Third-Party Assisted Reproduction
The perils of known sperm donation are reasonably well known. For those who read this blog you know all about my concerns about the Starbucks’ Sperm Donors. Alas now sperm donors are hitting Craigslist and probably other help wanted sections in newspapers and magazines. The same issues I discussed with those gentlemen engaging in a little afternoon delight in the bathroom at Starbucks and delivering their sperm donation to the recipient waiting outside the door also apply to those gentlemen responding to any other help wanted ad. As recent publicity surrounding a gentleman in Kansas reveal, even those with the best of intentions who attempt to protect themselves legally may still be deemed a daddy when all they wanted was to do a good deed. Indeed, William Marotta, our Craigslist donor du jour, has acknowledged that “no good deed goes unpunished”.
For those of you unfamiliar with the case (and I cannot imagine there are many of you who don’t know about it, because news of this case managed to reach me under the rock inside the cave in which I dwell), a little over three years ago Mr. Marotta responded to a posting online in Craigslist by which Angela Bauer and her then-partner, Jennifer Schreiner, were looking for a sperm donor to help them conceive a child. I have yet to learn all the gory details (that cave is pretty deep and news is slow to filter under the rock) but I gather that William, Angela and Jennifer entered into a written contract pursuant to which William, with the permission of his wife, agreed to donate sperm to Angela and Jennifer. William declined to accept any money in exchange for his donation. As purportedly stated in the contract — and let me be clear that I have not read the contract — William specifically stated that he had no intent to be a parent of the child, or have any involvement in its life whatsoever. Angela and Jennifer were to be deemed the legal and natural parents of any child conceived from William’s sperm donation. Angela and Jennifer also specifically agreed to assume all financial responsibility for the child and to hold William “harmless” from any claims against him for child support or other financial assistance for the child. In short, the contract stated that William was never to have any financial responsibility for any child born as a result of his sperm donation. (Just to make my life easier as I type, lets call Angela and Jennifer the “Moms”).
My devoted blog followers all know by now that the laws surrounding third-party assisted reproduction largely revolve around people’s intent at the time they conceive a child. Even with the existence of a statute governing third-party assisted reproduction, it is prudent to explicitly state that intent in a legal contract between the parties to any third-party assisted reproductive arrangement such as that entered into between William and the Moms. Cudos to William and the Moms for having the foresight to sign a contract stating that none of them had any intent for William to be “dad” and that the Moms would hold William harmless from any claims for financial support for the child. That “hold harmless” provision is further evidence of their desire and intent to have complete and sole responsibility for financial matters pertaining the the child. One major problem, however, is that (according to an NBC report), it appears that the contract they used to ensure that William wouldn’t have parental rights, was found on the internet. I am not sure that William and the Moms had legal counsel as part of this process.
My devoted blog followers and/or anyone who has called my office with a contract they found on the internet and wish to have me review in connection with their plans to build their family, know that I feel that contracts found on the internet are nasty little buggers that get everyone into more trouble than they avoid, and I won’t touch one. Putting aside copyright violations (btw, when we reproductive lawyers draft these contracts we retain a copyright in them so any time someone uses one of them they are — in addition to risking their family status — violating federal copyright laws), template contracts found on the internet simply are not specific enough to address the nuances of reproductive law. Case in point, William and the Moms.
My devoted blog followers and/or clients also know how anal I am and that I make sure that when drafting a contract of this nature — typically called a Known Sperm Donation Agreement — any applicable state statutes are mentioned in the contract. I also like to mention the terms of the statute and make sure that everyone is following the proverbial letter of the law. This is where we run into some problems as Kansas has a statute governing sperm donation, and William and the Moms didn’t follow the letter of the law. Regardless of where and how William and the Moms found this contract, they didn’t address a provision in Kansas’s statute on artificial insemination which provides that the parties to the sperm donation must have a licensed physician perform the insemination in order for the sperm donor to avoid having parental rights.
I have never fully understood why these statutes (and New York has one) require a physician to do the insemination. I suppose it could be because when these statutes initially were drafted, home insemination kits weren’t available and legislators wanted to dissuade people from having the sperm donor personally inseminate the intended mother, especially if the intended mother is married to a man other than the sperm donor. Anyone remember the scene in The Big Chill where Kevin Kline’s character gets down and dirty and does the deed with one of his and his wife’s best friends, played by Mary Kay Place, in order to help Mary Kay Place’s character conceive a child?? I suppose the whole infidelity thing combined with the desire to drive revenue to physicians led legislators to the notion that only a doctor should perform an artificial insemination. But times have changed and now you can find a home insemination kit on the internet. The primary demographic to which the home insemination kits are marketed are lesbian couples, just like the Mom’s at issue in the Kansas case which we are discussing.
Why are home insemination kits so popular you might be asking? Well, for those of you fortunate enough to have all the working parts necessary to conceive a child without assistance from fertility doctors, being gay does not meet the definition of infertility and the insurance requirements necessary to obtain coverage for artificial insemination. LGBT families have something called “social infertility.” Whether or not you like or agree with the term “social infertility”, due to their sexual orientation, the Moms were/are infertile insofar as they lack the healthy sperm necessary to fertilize their eggs. The Moms needed a sperm donor and it happens to be that cryopreserved or frozen sperm isn’t that cheap, and the processes involved in an “artificial insemination” (or to correct and update the terminology an “Intra Uterine Insemination” or “IUI”) ain’t cheap either. Without insurance coverage, the average IUI cycle can cost a coupla thousand to even a few thousand dollars. Enter the home insemination kit which costs under $50 including shipping and an otherwise healthy socially infertile woman has access to technology that will enable her to conceive albeit without the missing sperm. As we’ve discussed, Craigslist, Starbucks, and online forums have become common ways for women like the Moms to locate sperm without the cost of using frozen semen. Added in is the benefit of being able to meet your sperm donor and be able to provide your child with some background regarding one of his or her progenitors. Times certainly have changed and the law, certainly in Kansas, has not kept pace.
Speaking of times-a-changing, the “child” to whom William contributed his genetic material is now a three year old little girl and the Mom’s have since separated. Due to an illness, one of the Mom’s had to apply for state financial aid and Kansas got a little nosy and demanded that the Moms reveal William’s identity before it would provide any financial aid. Upon learning of the situation and William’s identity, the Kansas Department for Children and Families decided to go after William for $6,000 in child support together with imposing an ongoing obligation to provide support. William can’t afford any of this and justifiably is fighting Kansas’s claim.
The whole thing is wrong and is a glaring example of good intentions gone awry, lack of education and awareness of reproductive laws as they pertain to things like sperm donation, the failure of state legislatures to keep pace with societal changes, and the frickin’ frackin’ fiscal cliff. I understand that Kansas is broke but I would much prefer that it spend state resident’s tax money going after all the “dead-beat dads” who are intentionally leaving their children to starve. Dads who intended to father a child — and who may well have conceived that child or children through a physician-assisted artificial insemination or other third-party assisted reproductive technologies — and then post-divorce abandoned their financial obligations to that child or children. Why are we going after a man who never intended to be a father and did his best to help women who did want to be mothers? Especially when the mothers want to be financially responsible for their child but due to medical circumstances beyond their control cannot cover all of the costs associated with child-rearing and are forced to seek financial assistance from the state. Financial assistance, I might add, to which a single mother who knows nothing about her child’s biological father would be entitled.
So here we are with a legal battle being fought by good people with good intentions but who made a mistake. I understand Kansas has a right to seek child support from a genetic parent, but in this instance, that genetic parent should be standing in the shoes of an anonymous sperm donor. But for the fact that the Moms didn’t use a doctor when they conceived this child, William wouldn’t be in this mess. To many people it seems like an awfully unjust and harsh response by Kansas. Sadly for the Moms they don’t live in a state which might have permitted one of them to adopt the child in order to assure both parents full parental rights, or which otherwise recognizes same sex relationships such that both of the Moms could be listed on the child’s birth certificate and further be considered the legal and natural child of the Moms’ relationship. Steps which would not only have protected their parental rights in a same sex relationship but would have protected William from this mess. If both of the Moms were recognized here there wouldn’t be a need to find William. Sadly Kansas is not an LGBT friendly state. Combine that with the facts of this case and many people wonder if the Moms aren’t being singled out as a result of their sexual orientation.
Would the single mom to whom I just referred, who doesn’t know details about her child’s father, be similarly pushed into identifying him in order to be entitled to financial assistance from the state? Somehow I don’t think so. Somehow I think that a single mom would have gotten the financial aid more easily than this now single Mom who conceived her child while in a same-sex relationship. Is that which is taking place in the State of Kansas a violation of the Moms’ rights under the Equal Protection Clause of the United States Constitution or otherwise discriminating against them? One could certainly make the case (and hopefully someone is making the case) that but for the fact that they were involved in a same sex relationship at the time this child was conceived, and but for the fact that they didn’t have the financial resources to be able to access affordable infertility services that they might not be in this predicament.
As for William, he is the poster man for someone doing a good thing but not crossing all of his “t’s” and dotting all of his “i’s”. Had he known about the requirement that the Moms must use a physician to perform the insemination and/or insisted that they use a physician before he would consent to the donation, he might not be where he is today.
But that doesn’t make what Kansas is doing okay or even justified. I’d really much prefer they go after some of the dead-beat dads out there who owe the mother of their children a heck of a lot more money than is at issue in this case. Seriously folks, let’s get our priority’s straight.
Let’s go after legitimate law breakers before we go after good people who made a technical error. So what if the doctor didn’t pull the plunger on the syringe? Give me a break.
Tags: Artificial Insemination, discrimination, home insemination kit, Intra Uterine Insemination, IUI, Kansas, known sperm donation, known sperm donor, LGBT, reproduction, same sex parentage, sperm donation, sperm donation statute, sperm donor
December 7, 2012 | By: Liz | Filed under: adoption,Check This Out,Current Affairs,Egg Donation,Financing Fertility Treament or Adoption,In the News,IVF,known sperm donation,Personal Musings,The Journey to Parenthood,Third-Party Assisted Reproduction,Thoughts on Choosing an Egg Donor,Uncategorized
Every once in a while I have true conflicts between my self as a former infertility patient and my career as a reproductive lawyer and adoption attorney. A couple of years ago, I wrote a law review article on the disposition of frozen embryos, and whether or not talking about embryo adoption was legally correct whether the better, more appropriate terminology was/is embryo donation. There are hundreds of thousands of frozen embryos in cryopreservation in this country where the intended parents of those embryos no longer wish to use the embryos for their own family building. These embryos are often referred to as “leftovers” a term which somewhat disturbs me but is strictly speaking, accurate. These embryos are “leftover”, after a family was created through IVF and now remain in a state of frozen suspension. Many of those embryos could be used to help build another family, and be donated to an infertile couple. There was some confusion as to whether these embryos should be placed for adoption or donated in a similar manner to egg and sperm donation and I wanted to resolve that confusion — at least for myself. I ultimately drew the legal conclusion that the term embryo adoption isn’t really accurate because there isn’t a human being to adopt. I could go into a lengthy analysis of how I came to that conclusion but your eyes would roll back in your head and you would probably start drooling from boredom. So let’s just defer that analysis and argument for another day. If you are interested, you can get a copy of the article on the web (click here). I now happen to be a huge advocate for embryo donation. I think it is a fabulous way to build a family. However, these are musings for another blog. But my article did provide some clarity to those medical facilities which are banking those frozen “leftover” embryos.
So here I have been sitting happy as a woman with a barren uterus could ever be, contemplating my holiday shopping safe and secure in my belief in, and advocacy of embryo donation. And then I hear about this doctor in California who has a new kind of embryo bank.
Before I heard of this physician in California, I was aware of only one type of embryo bank; one where frozen “leftover” embryos are being made available for donation to infertile families. These frozen embryos were the subject of my law review article. This new embryo bank, however, does not contain any of these “leftover” frozen embryos. This bank is comprised of embryos which were recently created using carefully selected donor eggs and donor sperm. The donated eggs are fertilized with the donated sperm and the resulting embryos are frozen for future selection by hopeful intended parents. Let’s stop briefly and note emphasis on the words “future selection”. We will circle back to why this is relevant but I wanted to point out that these embryos are being created for future selection by wanna-be-moms and dads.
This physician has created his embryo bank in a manner to facilitate selection for all types of characteristics — everything from physical traits like blond hair and blue eyes to religious ethnicity. Jewish embryos, who knew? Actually, this could be fantastic for Jewish couples who need a single Jewish egg donor, and/or want to further ensure a connection with Judaism by having a genetic connection on the sperm side of life. You have no idea how hard it can be to find a specific ethnic donor and this is something I gather this doctor has identified as a plus to his business model. Speaking of business models, he also offers a money back guarantee. You choose a batch of embryos to use to try and get pregnant. If you don’t get pregnant the first time, you get two more tries using different batches of embryos. If you don’t get pregnant, you get 100% of your money back (approx. $12,000).
Upon hearing of this embryo bank a part of me was disgusted and a part of me . . . well I was excited. Super excited. Especially about the money back guarantee.
The infertility patient part of me sees this as a great opportunity to get pregnant. Frozen embryo transfers — while statistically less successful than fresh embryo transfers — can be lot easier to go through than an IVF cycle. For me having the embryos created using donor gametes isn’t a big deal. But if it were, I would be able to select an embryo based on whatever I might deem important. So, yeah baby! Let’s have another baby! Give me this doctor’s number. I am in! Or perhaps it would be better to say the embryos are [going to be] in [me]!
But the legal scholar, academic, intellectual, lawyer part of my brain is sitting here vomiting and is pissed that I am putting these thoughts onto cyber-paper and making an argument in favor of this horrific new kind of embryo bank. Stork Lawyer Reality check: It is pretty much illegal to create embryos without first having identified intended parents as recipients for those embryos and from what I understand, there are no intended parents waiting for those embryos when this doctor is creating them. The intended parents don’t enter the picture until the embryos are selected from the database and someone signs up with this program to undergo an embryo transfer procedure. This is where that whole “future selection” comes in.
The laws regarding assisted reproduction essentially come down to intent to parent before conception: in a third party assisted reproductive arrangement there is supposed to be a contract or other document signed before the embryos are created, whereby intended parent(s) agree to be legally and morally responsible for the embryos and children that may result from the ART process. In this case there is no such contract or preexisting intended parent. The embryos subject of my law review article all had intended parents before the egg and sperm came together to create the now frozen “leftover” embryo. But this new type of embryo banking lacks that component. There are no intended parents choosing the eggs and the sperm with the immediate intent to parent.
And speaking of all those “leftover” embryos shouldn’t we first be dealing with and using all the existing cryopreserved embryos before we go about creating them? And what about the potential that this doctor may be creating even more “leftover” frozen embryos (what happens to those embryos that don’t get selected)?
Let’s not analyze whether this is baby selling. I can’t, or won’t go there, although many others have. Consanguinity, or the risk of an individual created through donor gametes marrying or having a child with a genetic sibling is another issue that has been raised. The number of families that are created using any individual egg or sperm donor’s genetic material is a concern not to be overlooked or ignored. These donors presumably are also donating through egg donation agencies, fertility clinics or sperm or egg banks. We all have been astonished by stories of men who have discovered that they have fathered over a 100 children as a result of their donation to sperm banks — there is a significant risk that through this new type of embryo banking program not only will children have multiple full siblings running around but that egg and sperm donors have created half siblings through other programs.
Even more, if I understand this program correctly (and I am pretty sure I do) batches of embryos are being created which contain embryos which are full siblings to embryos which are contained in other or separate batches of embryos. It sounds like it is possible that three separate donations could take place using these three batches of embryos. Okay, follow-me slowly here for a minute because this is a little bit like playing Twister. In other words, three batches of embryos each of which contain embryos which are full genetic siblings to embryos in other batches, could be donated to three different families thereby creating three separate families whose children are all full genetic siblings to each other!
Do the recipients of these embryos know how many full genetic siblings their child may have? Are the donors aware?
It is supposedly almost impossible from a statistical standpoint for one of these children to marry its full sibling. But when you add in the half siblings that could be created through other donation programs, and/or smaller ethnic groups for whom donation can be a challenge because of the limited number of donors available matching their ethnicity, doesn’t the risk become somewhat more than insignificant? And even if it doesn’t, I worry that people don’t have enough information about how many genetic siblings are out there whether they are full or half siblings.
But I get it, I get why he did it. Especially for someone with an ethnic background this type of program would be hugely popular and let’s not forget the money back guarantee. We’re all broke after trying IVF multiple times, why the heck not take out a second mortgage if you know you will be able to pay it back if you don’t get pregnant? Sounds pretty good doesn’t it?
I am at war with myself. I want to go running to that clinic and pick out an embryo tomorrow. And then my lawyer (self) tells me to stop and think about whether I want to participate in, and thereby endorse a practice which I believe, in my own legal opinion, is legally impermissible, and legally and medically unethical. Is my desire to be a gestational mother stronger than my moral center? Good question.
The views expressed in this blog are the views and opinions of this author and are not intended to provide or constitute legal advice or a statement of the laws as they may pertain third-party assisted reproduction within the United States.
September 18, 2012 | By: Liz | Filed under: adoption,Current Affairs,Deadly Silence,Egg Donation,Faith and Infertility,I'm Just Another Angry Infertile Woman,In the News,infertility in the media,IVF,Personal Musings,The Journey to Parenthood,Thinking Out Loud,Thoughts on Choosing an Egg Donor,Thoughts on Donor Egg Recruitment
You know it’s not that often that I see glaringly offensive comments or information from professionals in the infertility world. Most of us know to be very careful with the language we use so that we don’t inadvertently hurt someone’s feelings. Today I was surfing Facebook and someone to whom I was connected (I am no longer “friends” with her) posted a comment about egg donation, adoption, and infertility. I thought at first she was referring to a blog and was hoping she was quoting someone else. Alas, I was very wrong and the link she posted was to an egg donation agency based outside of the United States (thank goodness for that — didn’t want to be running into her at any upcoming conferences lest I let her have it to her face) and the post was pretty much designed to bring attention to her agency. I am not a big believer in the old adage that any attention is good attention or that negative publicity is still publicity. In this industry, offending people is the kiss of death and well let’s just say I’ve been kissed.
I really don’t like the word “barren”. It’s an ancient reference to women who were unable to conceive and it dates back to a time period when women had no rights and would sometimes be replaced by another woman if she was unable to conceive a child. The Sixteenth Century this is not and I would have hoped that in the Twenty-First Century we would be a little bit more aware of appropriate terminology. I guess not because this FB poster (who shall remain nameless even upon kiss of death) seemed to think that all women who are having difficulty conceiving should be considered BARREN.
I don’t think so. Having difficulty conceiving does not mean we are barren. The word barren actually has many definitions (http://www.merriam-webster.com/dictionary/barren ) including “lacking inspiration” or “lacking charm”. For the record, I don’t consider any of my infertile clients, and certainly not my own bod, to be lacking in charm. Some of my clients are downright amazingly gorgeous women with incredible resumes and great personalities. In this case they are hardly barren are they? They also usually go on to become mothers which would seem to indicate that they are in fact capable of producing offspring (please note Miriam-Webster dictionary says nothing about those offspring needing to be biological children — at least its editors “get it”). But the word was used nonetheless in this FB post. The fact that the post tried to be “neutral” and present all sides of debates as they pertain to third-party assisted reproduction was totally lost on me by virtue of the selection of this word to describe me. Because that is who she is describing, me. The last time I checked I am still considered to be infertile.
The other problem was that this poster and her choice of words — and barren was by far the least offensive of them — revealed her own underlying belief that women who have difficulty conceiving, women like me who are infertile, are somehow lacking, less than other women, and are desperate. While she notes that “an element of respect” should be offered to these women, in and of itself that remark too is offensive. I am only entitled to “an element of respect”. 7 IVF Cycles, 9+ miscarriages (I stopped counting but there were more), three adoptions, and I am only entitled to “an element of respect”. Seriously?
Additional comments were made about whether decisions to use an egg donor were interfering with the “divine plan” for that woman’s life; and that what transpired to finally bring this barren woman to the point of actually considering using another’s genetic material could only be understood by the woman herself. Here I do agree with the post. However, I would prefer that she had not characterized the decision to choose egg donation as an act of finality, desperation, or somehow jumping off of the cliff of normalcy. Families are built in countless ways and all of them are normal.
Egg donors also were attacked for their decision to share themselves with other people. Let’s be clear that egg donation does not involve any kind of “sharing”. Egg donation agreements are clear that when a woman donates her eggs she relinquishes all rights to the resulting embryos and/or children. Egg donors do not share in the day-to-day life of the intended parents’ pregnancy, or their life as they raise their child. And let’s place the emphasis where it belongs, on “their” child, not the egg donor’s child. If this woman is counseling egg donors — and I fear she may be — then she is sending the wrong message to these selfless and generous women who donate their genetic material, their ova, to an infertile couple. They ain’t sharing those eggs or themselves with anyone.
Let’s not even discuss the offensive descriptions attributed to adoption. I will have a stroke.
I understand that this woman was trying to raise a debate, trying to draw attention to her business and what she does. But the choice of words she used as a professional in this industry was astonishingly rude and clearly revealed her own underlying biases. She is entitled to those biases. But as a professional she had a responsibility to keep them private and not mislead egg donors or intended parents. I also think it was a poor decision to use such inflammatory language if she was trying to promote her business. In all likelihood she sent potential clients running in the opposite direction.
I hope that the other people who read this post are wearing running shoes; they need to run as fast as possible. Most likely the very charming, inspirational women who read this post pulled their flats or sneaks out of their gym bag and took off their Jimmy Choo’s, and headed in the direction of a more sensitive egg donation/surrogacy agency, a therapist (I may need a session), shopping (in which case maybe they should leave on the Jimmy Choo’s), or a glass of wine and some Oreos.
For all those who read that post and felt in any way diminished as a human being because of their infertility, let’s get one thing straight: anyone who can get through this stuff is one tough, rockin’ mama. Emphasis on the word “mama” because that is what you will one day be called.
July 28, 2012 | By: Liz | Filed under: Birth Certificates,Birth Orders,Current Affairs,In the News,IVF,Parentage Orders,Personal Musings,Pre-Birth Orders,Questions about the Office,Sam Sex Parenting and Reproductive Law,Same Sex Parenting and Reproductive Law,Surrogacy in New York,The Journey to Parenthood,Third-Party Assisted Reproduction,Uncompensated Surrogacy
My phone has been ringing off the hook with questions from prospective clients about surrogacy. Everyone with whom I speak is terribly confused and seems to have received bad or misinformation from someone or somewhere. At first I thought it just a coincidence but now I wonder whether there is someone out in the world spreading vicious rumors about surrogacy thus causing many, many people to live as if they were in the fun house at the amusement park — you know the one with all those crazy mirrors that makes you look totally distorted (and always insanely fat or ugly) — sadly thinking that surrogacy is or will not be an option for them for building their family. As if the world of infertility wasn’t enough of an amusement park fun house, we now need the NOvary(tm) to have another partner in crime, a masked marauder (or perhaps multiple marauders) disseminating incorrect information about surrogacy? I don’t think so!
I’m going to take this opportunity to try and clarify surrogacy and all it’s intricacies especially in New York (most of them legal issues so it’s a good thing I’m a lawyer). As we are dealing with this Masked Marauder of Misinformation (who hereinafter shall be referred to as “MMM”), I am putting on my favorite caped crusader costume (wanna guess which character it is?) and I am taking the MMM, DOWN!
So what is my biggest beef with our friend the MMM? Mostly that s/he is telling everyone, including doctors, things about surrogacy that are so totally wrong people think surrogacy is not an option for them when in fact it may be a very viable option to become a parent. For some of us, surrogacy is our ONLY option to become a parent, and in this case MMM is doing the greatest disservice by making people believe that unless they MOVE half way across the good ol’ USofA they won’t be able to have a baby (and yes, one person with whom I spoke recently was told he would have to move to a different state in order to become a parent).
Before I begin my discourse and try and simplify these issues so you have the basics under your belt, I want to state for the record that I have no clue who or what MMM is or why all of this wrong information is circulating. Nor do I think MMM is one person. Rather, I think MMM is a combination of information being provided by physicians and their staff, people’s well meaning friends, and the Internet.
We know we all have to be careful about what we read on the internet (including this blog, don’t rely just on me, if you want to pursue surrogacy please find a good reproductive lawyer, find out what laws are going to apply to your individual situation and then start the process). So if you are reading this because you’ve had a web-based MMM encounter, I’ll do my best but I don’t know what you read and where you read it.
With respect to what our friends tell us, if your MMM experience came from a well-meaning waiting-room compatriot . . . well my attitude about that is that unless they actually went through it, they know Bubkis (Yiddish or born and bread NY’er for: “nothing”, “jack sh-t”, or “less than nothing”). And even then, when I say went through it, there is a vast array of what people think they “went through” as an infertile person. There is nothing more annoying than the person who goes on an on about how hard their battle with infertility was and how painful, expensive, and emotionally demanding it was (as you listen and think “OMG I’ve finally met someone who ‘gets it’”) and then you find out they did two IUI’s and conceived twins and are back for number three. Whereas you did 5 IUI’s and are on your third IVF cycle and also have had a miscarriage somewhere in there and, you’re still trying for number one! (BTW, doesn’t that just drive you crazy, those people who did one or two IUI’s — and who no doubt suffered — and who think they know how you feel; who think they have a clue how hard infertility can be?!?). So in this context I am not just talking about infertility, I mean surrogacy, and unless your “friend” had a child or attempted to have a child through surrogacy you have most definitely had an encounter with MMM.
With respect to information provided to you by a physician, here I must tread carefully. All I can say is that yes, you have had an experience with MMM. As noted above, in this blog I am addressing the legal issues because I am a lawyer. I defer medical issues to dr’s because even when I put on my “white doctor’s coat” (ala The Infertility Survival Handbook), I acknowledge that I did not go to medical school or become a licensed, board certified reproductive endocrinologist and thus should not be considered to be providing medical advice or information (although the book was read by three physicians before going to print). Just as I will not talk about medical issues to which I may not have full and complete information, I don’t think doctors should be giving you legal information. Some of my colleagues and I have a real “thing” about how frequently doctor’s do and say things that constitute practicing law without a license. It’s MMM at its most annoying (and personally offensive).
What MMM myths do I need to dispell or simplify? Well let’s start with what is annoying me the most and what I know most about: surrogacy in NY.
Contrary to the MMM you have heard, you CAN do surrogacy in NY!! However, MMM is definitely impacting people’s ability to do it as many clinic’s are so afraid of surrogacy laws in NY that they won’t even discuss it or do an embryo transfer even in a completely legal, uncompensated compassionate surrogacy arrangement. What you cannot do (and dr’s should not do) is an embryo transfer within the State of NY when your surrogate (a/k/a gestational carrier) is being compensated and lives in and will deliver in NYS. A NY State resident cannot carry a baby for another NY State resident for compensation above and beyond limited pregnancy-related expenses (please talk to a reproductive lawyer, adoption attorney, or family lawyer about what expenses are considered “pregnancy-related” and would be permissible under NY law). If you have a friend or family member who is willing to carry a baby for you for free that is amazing, and legal. If she needs reimbursement for pregnancy-related expenses that MAY be okay, depending on the type of expense and the amount (this where you need legal advice). I typically am very strict about whether or not these expenses can be paid; I am very conservative because I don’t want anything to cause problems when I am getting birth certificates and just like every where else in the world we go, you get the wrong judge and what you know is legal, permissible and you have even done before, THIS judge won’t let you do! Indeed, I was reading an article written in The Family Advocate, a magazine published by The American Bar Association for its members, written by my colleagues Diane Hinson, Esq., & Maureen McBrien, which addressed the status of surrogacy laws around the country, and they printed a quotation from another reproductive lawyer that made me laugh out loud: “[a]s one ART attorney put it, the result in any given case can depend on ‘which elevator button you need to push at the courthouse.’”
So the bottom line in NY is that if you have a friend or family member who will carry a baby for you, who will be your surrogate, you can enter into a surrogacy arrangement with her. She cannot be compensated or paid the way surrogates are in many other states, but depending on circumstances, she may be entitled to reimbursement of minimal expenses directly related to the pregnancy. You also can obtain birth certificates with your names on them. You will need legal documents before you can do the embryo transfer and it is very important you have these documents prepared. However, the documents you will have prepared are different from gestational carrier or surrogacy “contracts” and are not enforceable the way surrogacy contracts are in certain other states. That said, the documents your attorney will prepare for you can be very helpful if something were to go wrong during the pregnancy or after birth, and may also help your attorney get the birth certificate. Every attorney has their own practices and procedures (in every state), so you may want to interview a couple of attorneys to find one whose personal practice make you feel the most comfortable.
One issue you may have, however, is finding a doctor in NY to perform the embryo transfer even when you are doing a compassionate surrogacy like that which I have been describing. Unfortunately, due to the power of MMM, some clinics are electing NOT to do any embryo transfers under any circumstances or fact patterns, period. They are losing business by taking this position and it’s sad when you have been working with a clinic for years and they tell you that you need a surrogate, your sister agrees to carry the baby for you for free, and your beloved doctor refuses to do the embryo transfer. I am so upset by this increasing trend that I have on my (way too long) “To-Do” list, to write a white paper or perhaps law review article on why doctors are wrong to take this position.
However, in my opinion doctors may not be wrong in declining to perform embryo transfers in the State of NY when the surrogate is going to be compensated, or paid when she resides in a state in which surrogacy is legal. If you have found a surrogate in Illinois, a State in which surrogacy is legal and reasonably easy to do, you likely cannot bring your Illinois surrogate to NY to do the embryo transfer at your clinic even if this is where your embryos are stored. There are a few clinics that may do the embryo transfer if everything about the surrogacy is legal in another state, in this case Illinois, but arguably because you are a NY resident and the embryo transfer is taking place in NY, a doctor might be found to be violating NY’s statute against facilitating paid surrogacy arrangements. Arguably, this statute was meant to apply to paid surrogacies taking pace within the state of NY (not Illinois) but a your doctor may not want to risk a potential felony violation over an issue of statutory interpretation.
MMM aside, as a NY resident you also have the option of locating a surrogate in a state in which it is legal to compensate the surrogate (Connecticut is another example of a state in which compensated surrogacy is legal), and once you have all the appropriate legal documents in place, you can either have any frozen embryos transferred to CT or undergo the IVF cycle in CT with your surrogate undergoing the embryo transfer procedure. The baby will be born in CT and you will obtain a CT birth certificate with your names on it.
So let’s recap for NY’ers: MMM notwithstanding: it is not illegal to enter into a surrogacy arrangement. You can either find a friend or family member to carry the baby for you within (or outside of the state) New York or you can find a surrogate in another state, preferably a surrogacy friendly state, to carry the baby for you, and you will compensate the surrogate. Depending on the State, whether New York, Illinois, or Connecticut, you will need legal documents before the embryo transfer can take place; and the process by which you obtain birth certificates with your name on it differs between the states and even within a state (they can vary county by county and even sometimes Judge by Judge — this is why I cracked up over the elevator button quote; it’s beyond accurate).
You will need a reproductive lawyer in the state in which your surrogate is to deliver the baby to tell you what that process will be AND what needs to be included in the agreement you enter into BEFORE you do the embryo transfer (the surrogacy agreement or contract). Florida, for example, requires that specific statutory language be included in your surrogacy contract. BTW, another MMM fact to dispel. If you enter into a surrogacy in Florida, you are NOT adopting your baby. You are doing a surrogacy or gestational carrier arrangement just as you would be in Illinois or Connecticut (or many other states). The MMM on this issue stems from the fact that the surrogacy statute is included within the Florida Adoption Statute. Just because the surrogacy provisions are contained in the adoption statute does NOT result in or mean that you are adopting the baby, your baby, which your surrogate delivers in Florida. A reproductive lawyer in Florida can explain this process in greater detail.
Wherever you live, whether NY or another state, MMM has led to lots of confusion over what you can and cannot do with respect to surrogacy. NY’ers are, I think, experiencing the most confusion right now. Hopefully statutes will be passed in the next year or two that will make almost all forms of surrogacy legal in NY, and which will permit NY’ers to stay in NY to have their babies via surrogacy. A member of the NY legislature, Amy Paulin, has introduced a bill that will make surrogacy legal in NY. She needs help from her constituents and other residents of the State of New York, so if you are interested in helping another state become surrogacy friendly, please seek her out on FaceBook (she specifically requested that people post to FaceBook) or send her a letter in support of her efforts. Please, for me??? FaceBook, quick post, Go Amy, Go Surrogacy, Go NY!
Surrogacy is easy in many states, but due to MMM many people are confused over the process, the steps involved, and the cost. Some of the confusion is well-founded. As noted above, in some states it can depend on the Judge to whom you get assigned which will determine how easily you will obtain a birth certificate or whether it can be done pre or post birth. Many states have set procedures by statutes, others rely on cases decided by Judges, and still others prohibit it altogether or prohibit certain aspects of it. Traditional surrogacy (where the surrogate uses her own egg to become pregnant) is illegal in many, many states and if you enter into this type of surrogacy you may well have to adopt the baby in order to legalize your parental rights; and you are still at risk for the surrogate to assert parental rights as it is her genetic material she is carrying.
The questions you need to ask are as follows:
Is surrogacy legal where I live, and if so what restrictions (if any) are there on the process, what documents do I need to have prepared before embryo transfer, and what steps need to be taken to establish my parental rights? If using an egg donor in addition to a surrogate, does that impact any aspect of the process? You may for example, need to do a second-parent or step-parent adoption in the state in which you live in order to establish the parental rights of the non-genetic parent. Do not rely on anyone other than a reproductive lawyer, adoption attorney, or family lawyer to answer these questions for you. MMM runs rampant in this area of the law and in fact, the law changes fairly quickly so what may have been true a few years ago, if told to you now, may well result in a run-in with MMM. Other blogs I have written have addressed the questions you need to ask or legal documents you need to have prepared when entering into a surrogacy arrangement in greater detail than I did in this post. If you are considering surrogacy, you may want to explore those posts for additional information.
There is a wealth of information that you need as you start on this path, topics we haven’t touched on are issues related to insurance and escrow or trust account management. These subjects are less frequently discussed (and extraordinarily important) so less often subject to MMM encounters. I plan on blogging about them and am working on an series of books to demystify third party assisted reproduction in general.
But whatever you do, don’t take what people (even your doctor) tells you at face value! The Masked Marauder of Misinformation is just as stealthy as the NOvary! I am so jaded that I sometimes feel like a client is describing an MMM encounter from a friend who does not want my client to have a baby and thus has filled his or her head with utter nonsense out of nothing other than jealousy (how sick and twisted am I?) Or, political issues within a reproductive practice are causing a client to draw assumptions about surrogacy — MMM that surrogacy is illegal because her clinic won’t do an embryo transfer to an uncompensated surrogate — that are just plain wrong!
Beware the MMM. There are so many options for becoming a parent through surrogacy that odds are you can find a way to do it. Don’t believe everything you hear! Got a question, get an answer, just make sure it’s not from the Masked Marauder of Misinformation!!