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The Top Ten Things Reproductive Lawyers Can Help You With

February 10, 2016 | By: | Filed under: anonymous sperm donation, Birth Certificates, Birth Orders, Current Affairs, Egg Donation, Embryo Disposition, Embryos, Family Building Law, Frozen Embryos, Gestational Carrier, Gestational Carrier Arrangements, In the News, infertility in the media, Infertility on Television, Insurance for Infertility, IVF, known sperm donation, New York Reproductive Law, Parentage Orders, Personal Musings, Pre-Birth Orders, Reproductive Law, Reproductive Lawyers, Same Sex Parenting and Reproductive Law, Surrogacy, Surrogacy in New York, The Journey to Parenthood, Thinking Out Loud, Third-Party Assisted Reproduction, Uncategorized, Uncompensated Surrogacy

Sometimes when I tell people what I do for a living they look at me like I have two heads.

Reproductive Lawyer?  What’s that???

Part One

In this day and age when celebs like Sofia Vergara and her Ex are all over the news fighting over which one of them is going to get to use their frozen embryos, I am really surprised that so many people have no idea what it is that reproductive lawyers do.  Or more to the point, why reproductive lawyers are not only helpful, but often play a critical and essential role for individuals and couples building their family through third-party assisted reproductive arrangements like surrogacy, egg, sperm, and embryo donation.

So what is it that we do for our clients?  How is it that we play such an important but poorly understood role in the formation of our modern families?  Here, in no particular order, is an overview of the top ten things reproductive lawyers can help you with as you begin to build your family through third-party assisted reproduction.  Now these may not be humor-worthy of top ten list legend David Letterman, but for anyone going through third-party assisted reproduction or considering it, this is an important list:

(1)  Reviewing your agreement with your surrogacy or egg donation agency (sometimes called a service agreement):  If things go south with your relationship with the agency this is the document that is going to be your agency’s safety net and the document you will look to in order to seek a refund of all or some of the money you paid.  Shouldn’t you know your rights and the agency’s obligations and responsibilities before you sign an agreement and work with the agency?

(2) Reviewing your surrogates insurance policy:  What if it doesn’t cover a surrogacy pregnancy?  What options do you have to avoid a potentially catastrophic financial liability?

(3) Preparing contracts for you:  Egg, sperm, and embryo donation agreements (anonymous or known), and gestational surrogacy agreements are all critical documents in protecting your family in the future and protecting you and your donor/surrogate during the IVF process and/or pregnancy.  Understanding the role this agreement plays in third-party assisted reproduction and the necessity for having them drafted is far too often overlooked.  How do you make sure your sperm donor is really a donor and not something more (like a parent)?  When does your egg donor relinquish parental rights?  What happens if she changes her mind about donating? How and when can you use any leftover frozen eggs or preembryos?  What happens if you and your surrogate disagree over something really important like selectively reducing the pregnancy?

(4) Using boilerplate contracts with your agency, or contracts you find on the internet:  Do they really protect you and what issues might arise if you use one?  Did you know that you are probably violating copyright laws by using one?  Did you know you cannot be forced or compelled to use an agreement provided by an agency and that you have the right to use an independent lawyer?

(5)  Entering into a known sperm donation agreement (with a friend or a Starbucks Sperm Donor):  What do you need to know about these sometimes very dicey situations?  What makes them so risky and how can you avoid those risks?  What can you do to protect yourself whether you are the intended parent or the sperm donor?  How can you protect yourself from a known sperm donor asserting parental rights or an intended parent trying to impose parental rights, custody or child support obligations?  Does a sperm donor need to be worried about the State asserting a claim that he has child support obligations?  Good intentions aside, everyone thinking about this form of family building is (in my humble opinion — IMHO) a fool for not consulting with an attorney before entering into this type of family building arrangement.

 

These are just a few of the important ways reproductive lawyers can help you through the obstacle course of third-party assisted reproduction.  We want to help you make smart future-thinking decisions and ensure that everyone has their rights protected as they intend them to be and as they move forward through this process.

Up Next in Part 2 We Explore:

(6)  Planning for Divorce or Death.

(7)  Managing money in a surrogacy arrangement.

(8)  Doing a home insemination:

(9) Getting your birth certificate:

(10) Understanding the impact of changing reproductive laws:

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Sherri Shepherd’s Surrogacy Battle and the View from the Other Side.

March 16, 2015 | By: | Filed under: Current Affairs, Egg Donation, Faith and Infertility, Gestational Carrier, In the News, In-House Egg Donation Programs, infertility in the media, Infertility on Television, IVF, Personal Musings, Surrogacy, Thinking Out Loud

Sherri Shepherd.  Who hasn’t heard her name recently?  The former host of The View is in the midst of a major lawsuit with her ex-husband over her son.  She claims she doesn’t have any responsibility for the child she helped bring into this world.  REALLY??  Is she serious?  Sadly, yes.  And she’s leaving this issue — what could be a ground-breaking decision in the laws pertaining to third-party assisted reproduction — to a Judge to decide.  She couldn’t work it out privately with her Ex.  Nope, she had to go to Court.

I used to like Ms. Shepherd.  She spoke on behalf of the infertile.  She was our advocate.  She was one of the very few public — celebrity voices — speaking about the pain of infertility.  I am trying to have faith in our judicial system right now because Ms. Shepherd has destroyed my faith in the power of the infertile woman.  What she is doing, is to me, disgraceful.  Wow!  I guess I am angry.

I went to a benefit a few years ago for RESOLVE.  It was its annual Night of Hope and Ms. Shepherd was receiving an award for raising awareness about infertility.  She gave a moving speech about the pain we go through when we cannot conceive without medical help — without help from third-parties.  She moved me to tears talking about how much she wanted a baby and to be a mother and how sad she was every time her fertility treatment failed.  It was very clear during that speech that she wanted nothing more than what every other infertile woman wants, a BABY.  And now she’s trying to dump the responsibility for that baby — that longed-for, hoped-for, much-wanted baby — on someone else.  And that someone else is her egg donor or surrogate, that third party without whom she and Mr. Sally would not have conceived, and realized what she said was her dream.  Her dream of becoming a mother.

Many of us don’t realize that dream and that’s why I find her actions to be such a slap in the face.  To go from being a proud infertile woman putting one foot in front of the other and thanking her fertility specialist (I can remember his name) for helping her, to dumping responsibility that is rightly hers on the people who helped her achieve that dream.  That’s just wrong.  It is morally wrong and it is legally wrong.  I am going to stop discussing the moral component of it because I get the fact that there are people in this world for whom I hold little or no respect.  But from a legal standpoint, what she’s doing is profoundly dangerous and could potentially turn reproductive law upside down, and erase years of progress helping women just like Ms. Shepherd become mothers.

I should comment that I don’t know many details about Ms. Shepherd’s egg donation arrangement or surrogacy arrangement.  But if she’s litigating this issue in Pennsylvania then I am guessing her surrogate is a resident of the Commonwealth of Pennsylvania and that the laws of that Commonwealth govern the surrogacy agreement.  The thing is, there isn’t really any law in Pennsylvania when it comes to third-party assisted reproduction.  There isn’t a statute governing third-party assisted reproduction and when there isn’t a statute governing the actions of intended parents like Ms. Shepherd and Mr. Sally, the laws of third-party assisted reproduction typically look to the intent of the intended parents (Ms. Shepherd and Mr. Sally) prior to the conception of the child.  Typically those intentions are spelled out either in an egg donation agreement or gestational surrogacy agreement (or both), or in some cases through consent forms signed by an egg donor at the fertility clinic at the time she donated her eggs.  But the bottom line is that there is some written statement that the egg donor does not want to have parental rights to any child conceived from her donation, and that the intended parents want to have parental rights and all the responsibilities that come with parenthood for any child conceived from the donation of eggs by the donor.  Similarly, the intended parents (Ms. Shepherd and Mr. Sally) would — and in this case did — enter into a gestational surrogacy agreement which would clearly spell out that the intended parents (Ms. Shepherd and Mr. Sally) were going to be the parents of the child the surrogate carried, and the surrogate would not have any parental rights.  A well-written agreement would address what would happen in the event the intended parents divorce prior to the birth of the child.  Typically the intended parents are still the parents even if they divorce but maybe her agreement says something different, or is silent on the point.  But the bottom line is that in order to have conceived this child, Ms. Shepherd’s egg donor waived all parental rights and Ms. Shepherd assumed them; and Ms. Shepherd stated her unequivocal desire and intent to be a parent of the child her surrogate was carrying and her surrogate expressed no desire or intention to ever be the child’s parent.  I would be shocked if the legal documents at issue in her case don’t refer to the parties’ intent about who were going to be this child’s parents.  Ms. Shepherd claims she was defrauded into entering into the agreement.  I find that hard to believe given the years of infertility treatment she went through and the statements I heard her make that night at RESOLVE.  I think she wanted this baby.

The question is whether the Judge will uphold the terms of those documents or contracts.  And that is where I get scared.  What if the Judge decides that the agreement with the surrogate is unenforceable for some reason and that Ms. Shepherd isn’t legally responsible for this child, that she isn’t his mother?  What then?  Does any intended parent get to change their mind when they one day decide that they don’t want to be a parent anymore?  Where does that leave the law of intent as it informs decisions related to third-party assisted reproduction?  Is the intent of the parties what governs the determination of parentage or is a gestational surrogacy agreement or egg donation agreement just another contract that can be thrown out of court on technical or some other grounds?  Decades of law pertaining to third-party assisted reproduction are at risk.  All the hard work my colleagues have done to make it possible for Ms. Shepherd even to consider having a child through third-party assisted reproduction could be damaged, even worse, destroyed.  Will Pennsylvania remain a surrogate-friendly state?  I get sick thinking about it.

Ms. Shepherd has crossed over to the other side, that of becoming a parent after battling infertility.  And apparently she doesn’t like the view so much.  I get the fact that Ms. Shepherd is angry at her ex-husband.  I get the fact that she doesn’t want to be in this child’s life.  I may not agree with her moral positions but legally I am horrified at the way she is going about getting out of her obligations as a parent.  What she is doing has the potential to set the law back in ways so significant as to preclude other infertile women and men from having a child through third-party assisted reproduction.  I am at a loss to understand how someone who was such a staunch advocate for the infertility community and who so desperately wanted a baby could get to a place where she wanted to put the rights of so many others like her at risk.  I cannot fathom why someone would risk establishing a legal precedent that could jeaopardize the rights of so many just like her.

This all begs one question:  What would Ms. Shepherd have said three or four years ago about someone taking the position she is taking today?  Probably nothing nice.

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The Risk of Choosing The Mindset of Infertility

October 24, 2014 | By: | Filed under: adoption, Age and Infertility, Deadly Silence, Egg Donation, Faith and Infertility, Gestational Carrier, infertility in the media, Infertility In The Movies etc., Infertility on Television, IVF, Peace to Parenthood, Personal Musings, Recurrent Pregnancy Loss, Surrogacy, The Infertility Survival Handbook, The Journey to Parenthood, Thinking Out Loud, Third-Party Assisted Reproduction, Treatment, Uncategorized, visualization

I’m back (after a blogging break) and I’m mad.  Very mad.  I am mad at doctors, mad at the media, mad at the reproductive community, mad, mad, mad!  Why am I mad you ask?

Good Question.

It took me awhile to figure it out, which makes me even . . . madder!  Okay I know that’s not a real word but you get my point . . . I think it’s been building up inside me for . . . oh about 15 years.  Because 15 years ago (give or take a few years) I was officially LABELLED as INFERTILE.  It is not a nice label.  It is not a label anyone ever wants.  And yet there it is.  A LABEL in my medical chart.

It’s like having a huge tattoo on my forehead that screams to doctors and the world:

INFERTILE:  WILL NEED HIGH-TECH EXPENSIVE MEDICAL TREATMENT TO EVER HAVE A CHANCE TO CONCEIVE AND CARRY A CHILD.

This is a label which makes your doctor look at you differently.  A label which makes YOU look at YOU differently. A label which makes you look at your partner differently, and makes your partner look at you differently.

The LABEL stuck with me for over 15 years.  And indeed, after years of IVF those labels became so convincing to everyone, and I mean everyone, that no one believed there was any hope for me.  It was like getting put into a closed box which doctors didn’t even want to try to open.

I listened to doctors, and nurses, and even friends, as they recounted the statistical UNlikelihood that I would conceive and carry a baby, as the statistics of the likelihood of what I wanted more than anything, became smaller and smaller, and smaller.  I let them convince me it was impossible.

The list of reasons they gave me was huge.  Insurmountably huge. And so I believed them when they told me I wouldn’t conceive.  I believed them when they gave me diagnosis after diagnosis.  I didn’t question their opinions or their conclusions.  I didn’t challenge my own belief in the power of my mind, the power of my body, the power of ME!

I BOUGHT IT ALL HOOK LINE AND SINKER!

And that’s why I am mad.

I let them compartmentalize me.

I let them put me in a box with a label and give up on me.

I let ME give up on ME.

Today there are countless ways to build a family.  IUI, IVF, IVF with donor egg, IVF with donor sperm, IVF with egg and sperm donor, embryo donation, gestational surrogacy (with any of the aforementioned IVF combinations), traditional surrogacy, domestic newborn adoption, foster-care adoption, international adoption; and there are more options than what I have mentioned.  It is a colorful and beautiful world filled with reproductive and family building options.  I live and breathe it every day as I help others move toward their dream of building a family.  But I couldn’t see any of it for myself.  All I could see was that tattoo staring back at me in my bathroom mirror every morning.

INFERTILE  

I read when magazines and newspapers attributed the label to countless celebrities, the media’s whispered words of shame and failure . . . [insert celebrity name here] can’t get pregnant] . . . she’s INFERTILE.  But I didn’t believe it for them.  I believed they would (or will) prove the label was wrong.  Prove the media was wrong.  I believed that others could defy that label which defined me.

INFERTILE 

God I hate that word.  I hate the feelings it brings out in me.  Feelings of failure, sadness, desperation, and now anger.  But I am not angry that I am infertile.  I am angry that I gave up on myself.  But then something happened.  Something that wasn’t supposed to happen . . . not to me, not to someone with all those LABELS.  Something extraordinary happened that caused me to challenge my doctors’ assumptions, that caused me to look at the LABEL tattooed on my forehead and ask:

IS IT REALLY TRUE?

AM I REALLY INFERTILE?

And then I realized it isn’t impossible.  Nothing is impossible.  In fact everything is POSSIBLE.  And with that realization my entire world changed.  My longheld beliefs about myself and my infertility CHANGED.  Everything I feel and believe about what I have lived through for well over 15 years, what I tell my clients, how I look at the community and industry in which I work, has shifted.  I suffered for over 15 years for no reason.  There was always hope.  I just wouldn’t let myself see it.  But I see it now.  I see HOPE everywhere, for everyone, even for ME.  No one really knows who is infertile.  Not even your doctor.  Nothing anyone tells you has to be true.  Not unless you believe it’s true.

My point is this:

Do NOT let your doctor get you down.

Do NOT let your doctor dismiss you.

Do NOT buy into the label(s).

Do NOT believe statistics.

PLEASE DO NOT BELIEVE STATISTICS.

I have finally realized that everything and anything is possible.  Because it is.

ANYTHING AND EVERYTHING IS POSSIBLE!

It will happen to you in the perfect time, and in the perfect way.  But you do not have to suffer while you wait. Do not do what I did.  Do not buy into the labels.  Do not give up or give in.

Instead of choosing the mindset of infertility, choose the mindset of belief.  Choose the mindset of knowing that your time will come.  Accept, believe, and KNOW that everything and anything . . . and I mean ANYTHING . . . is POSSIBLE.

Because it IS.

And I know this because after 15 years of living with the label, and living with the tattoo on my forehead, something happened which proved everyone wrong about everything.  I now know that

I AM NOT INFERTILE

I am

POWERFUL

My body is 

POWERFUL

and so is

YOURS!

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Reproductive Lawyers and ART for Gay Parents to Be

March 31, 2014 | By: | Filed under: Birth Certificates, Birth Orders, Gestational Carrier, Gestational Carrier Arrangements, Parentage Orders, Pre-Birth Orders, Questions about the Office, Sam Sex Parenting and Reproductive Law, Surrogacy, The Journey to Parenthood, Third-Party Assisted Reproduction

Sometimes I feel like people don’t get what I do for a living.  At parties when someone asks me what I do and I tell them I am reproductive lawyer, I get a blank stare and an “uh huh” response.  I then explain that I am a lawyer that helps people have babies.  I may get a smile but I usually can tell that my fellow partygoer remains confused.  He or she will often ask me a question about adoption, assuming that I am an adoption attorney.  I next explain that while adoption law is part of my job, with my specific area of practice most of the time the adoption is just for one parent in a same-sex relationship who is seeking to establish parental rights after a surrogate birth.  If I am really lucky I get to talk about third-party assisted reproduction and all the ways people can have babies these days–and all the risk that comes with this technology.  And I am not talking about medical risks, or the risk of not getting pregnant, as third-party assisted reproductive technology (“Third Party ART”) is unbelievably successful.  I am talking about the risks presented by the laws that may apply to these family building arrangements.  Most people have no idea how complicated these laws are and how important my job can be to help ensure that all the work doctors are doing to help people become a family, results in a legally-recognized “forever” family.

And it is not just my fellow partygoer who fails to understand the importance of what I do with respect to Third-Party ART.  Many doctors have no idea the complexity of the legal landscape their patients may be facing.  So when Gay Parents to Be in partnership with RMA CT recently contacted me and told me about an upcoming event it was having with the Triangle Community Center in Connecticut, and that they needed a reproductive lawyer to help round out the panel, I jumped at the opportunity.  How could I not participate when asked if I could help explain why a reproductive lawyer needs to be a part of a patients’ ART team, and why what I do really matters?  Would I help?  No brainer, just tell me where to go and when to be there.

 Answer:

Saturday, April 5th 12pm – 2pm

Triangle Community Center

618 West Avenue, Norwalk CT

 

I often think that although we are all blessed when we become parents, those of us who faced challenges in becoming parents are more appreciative of our children and our family.  There are simple and seemingly insignificant things that couples that conceive without jumping through hoops take for granted, like the birth certificate with their name on it.  For those people who may have to spend tens of thousands of dollars and most certainly need a team of doctors and nurses and other reproductive angels to have a baby, that birth certificate is the symbol or proof of their victorious transition to parenthood. The birth certificate is often the one document that says “forever” family more than any other.[i]

While Third-Party ART, like surrogacy, is helping more and more people achieve their dream of having a family, it also raises more and more legal issues about how we protect that family.  My job often boils down to making sure that birth certificate is an “untouchable” document and to do that I need to be involved in the process just as early – sometimes even earlier – than the medical team.  Preparing the legal landscape ahead of time is just as important as preparing a surrogate’s uterine lining.  Just as a reproductive endocrinologist is going to monitor hormone levels and the thickness of a surrogate’s uterine lining in preparation for embryo transfer, one of my roles as a reproductive lawyer is to make sure everything that the medical ART team is doing to create this family, will be legally protected.

Most people entering into surrogacy arrangements understand that they need a contract with their surrogate.  What they often fail to understand is that the contract isn’t just about addressing the relationship with the surrogate or the financial commitments being made to her.  That surrogacy agreement is going to lay the foundation for obtaining a birth certificate and sometimes having the wrong wording, or not having specific wording in a surrogacy agreement can prevent the birth certificate from ever being issued, or being issued with the right people’s names on it.  Although many states have statutes or cases that specifically provide mechanisms for obtaining this birth certificate, in far too many states the complexities regarding the establishment of parentage is far more complicated and/or downright tricky.  Although a state may be “surrogacy friendly” the laws in that state may vary county-by-county and even judge-by-judge.  Even more, as the country becomes friendlier to marriage equality, and state laws are becoming more progressive, the definition of what a family is may now include three parents, or “intimate partners” who share parenting responsibilities.  It is this ever-changing legal landscape applicable to Third-Party ART that makes addressing the legal side of these family building plans essential.

As one of my colleagues has [not so] facetiously said, sometimes whether or not you can get a birth certificate comes down to which elevator button you are pushing in the courthouse.  I am really thrilled that I am going to have this opportunity to explain what I do, and hopefully ensure that more people who are considering entering into Third-Party ART arrangements understand how reproductive lawyers can help them, when we can and should be helping them, and helping ensure that when it is time for them to get their birth certificate it (hopefully) doesn’t come down to which button they are pushing in the courthouse elevator.  And if it does come down to elevator buttons, that there is confidence that the attorney who has been hired to press the elevator button can successfully navigate the legal landscape necessary to obtain that birth certificate.

 

 

 

 


[i] This blog does not address issues regarding the enforceability of birth certificates for same-sex couples.

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