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What you need to know about surrogacy in NY and why you need to know it: Updated.

November 30, 2016 | By: | Filed under: Birth Certificates, Birth Orders, Egg Donation, Gestational Carrier Arrangements, New York Reproductive Law, Parentage Orders, Personal Musings, Pre-Birth Orders, Reproductive Law, Surrogacy, Surrogacy in New York, Third-Party Assisted Reproduction, Uncompensated Surrogacy

The other day  I had the privilege of visiting clients who had just come home from the hospital with their newborn.  It was a compassionate surrogacy and it was time for everyone to sign papers either terminating parental rights or seeking to establish them.  It was a unique situation – and one that brought tears to me eyes repeatedly while I was there (okay so I am a Crier and I am Proud of it).  In this case a grandmother had carried her grandchild for her daughter and son-in-law.  The emotion (and tears) behind this child’s birth is the subject of another blog.   The conversation we had while everyone was signing their papers and I was furiously stamping everything with my notary stamp is, however, the subject of this blog.  We were talking about how they got started on this monumental journey and a blog I wrote about Beyoncé and NY surrogacy.   In that blog, I gave an overview of some aspects of surrogacy laws as they pertain to New York State.  Having reviewed that blog, it occurs to me an update or clarification might be warranted.  If nothing else, I have changed how I practice and establish parental rights and my blogs should reflect that change, yes?  I have posted other blogs on surrogacy which discuss NY laws so this blog should be read in conjunction with the Beyoncé post from 2012 and my other blogs related to surrogacy.

Despite the estimable efforts of some of my colleagues to get NY to update our legislation, we still can’t do the paid surrogacy thing in NY.  In order to enter into a surrogacy arrangement in NY a friend or family member has to carry the baby for you out of her love and affection for you.  This is called “compassionate surrogacy” and it is indeed, a compassionate act for someone to carry another person’s child without financial remuneration.  If you don’t have someone who is willing to carry your baby out of their love and affection for you, you have to go to another state which permits compensated surrogacy.  You shouldn’t have too hard a time finding a surrogacy friendly state as NY is among only a couple of states which have “surrogacy unfriendly” laws.  And by the way, when I say “unfriendly” I would like to remind you that entering into a contract for surrogacy in NY, or facilitating a compensated surrogacy arrangement in NY, are not just acts which are against the public policy of the State of NY, they are potentially criminal acts.  Yes, let’s insert the word felony in there for some greater clarity.  Fun times.

But we have compassionate surrogacy and NY’ers can even have a traditional surrogate carry a baby out of her love and affection for the intended parents (traditional surrogates use their own eggs to achieve a pregnancy and a lot of states do not permit traditional surrogacy).  There are real options for achieving a family when you are medically or socially infertile and live in NY.  Provided you have someone willing to carry that baby without compensation (get the theme here?).

So let’s say you have someone willing to carry your baby for you.  Let’s now assume you have or can create embryos using your eggs and your husband’s sperm (I will discuss what happens when you can’t).  You hire an experienced reproductive lawyer to draft a document prior to the transfer of your embryo to the surrogate’s [compassionate] uterus which outlines your (the intended parents’) intent and the surrogate’s intent (and her husband if she has one), that she will carry your baby out of her love and affection for you, and that she has no intent to parent the child.  In this document outlining your intent, your reproductive lawyer also will address the laws of the State of New York and who will be deemed a parent, and at what point in time they will be deemed a parent, or you will be deemed to be the parent (dang that’s a lot of deems).   And that is as far as I go with my discussion of this document evidencing pre-conception intent, as the document itself will vary among the reproductive lawyers you may hire (and whose surrogacy practice is, by law, limited almost exclusively to compassionate surrogacy).

This Completes Step 1 = You now have a pre-conception document outlining the everyone’s intent for the compassionate surrogate to carry baby for the intended parents, and for the intended parents to be the parents.  Many reproductive lawyers in NY call this document a Memorandum of Understanding (or MOU for short).

Then your surrogate gets pregnant from the embryo created using your egg and your husband’s sperm (or from donor gametes).  What happens now?  Again this will vary based on individual attorneys but typically during the pregnancy, if your surrogate is married her husband can take steps to terminate any parental rights NY law will assume he has by virtue of the fact that he is married to your surrogate at the time your child is conceived and born.  In this case, typically the surrogate’s husband isn’t listed on the first birth certificate; it will be issued with just her name on it (attorneys do things different ways so do discuss this part of the process with your own attorney).  If your surrogate isn’t married, then bio dad’s name can be placed on the first birth certificate with the surrogate’s name.  This makes life a lot simpler for everyone, but this can only happen when your surrogate is not married.  However, it is only AFTER your baby is born that your surrogate can take steps to terminate her parental rights.  NY will deem your compassionate surrogate to be your child’s mother, notwithstanding the lack of any genetic connection to your child (well except for the grandmother who just delivered her grandchild and who, of course, is genetically related to the baby she carried).  Indeed, because she cannot terminate her parental rights until after your baby is born, under the current NY laws, your surrogate’s name will have to go on the first birth certificate issued for your baby by the State or City of New York.

After the baby is born you can go to court and seek an order declaring you and your husband (if your surrogate is married) to be the genetic and legal parents of your child.  This is often called a “post-birth order” of parentage.  Once you have that court order, NY or NYC will issue a new birth certificate with your names on it.  (Please see my discussion of Queen Bee regarding whether or not that first birth certificate gets sealed).  I have been having quite a bit of success recently getting post-birth orders quickly.  It used to be that I had to go into different courts – now I usually just go into one court and have a hearing to establish the intended parents’ parental rights and terminate the surrogate’s presumptive parental rights.  I have had hearings that lasted a total of 10 minutes.  Anti-climactic to say the least.

Now, to be fair, some of my colleagues go into court before the baby is born to start the process of establishing and terminating parental rights.  Everyone has their own way of doing things, but the bottom line is that whether I go into court before or after your baby is born, or both before and after your baby is born, your surrogate’s parental rights cannot be terminated and your parental rights cannot be established until after the baby is born.  That is until the NY legislature decides to move into the 21st Century with the rest of us.

If you have to use donor egg, donor sperm, or your surrogate uses her own egg, the non-biological parent cannot get a post-birth order in NY.  In this case, where someone else provided gametes (egg or sperm), a step-parent or second-parent adoption must be conducted to establish the non-bio parent’s parental rights.   The bottom line is that in NY, if you lack a genetic connection to your child, you will need to enter into some kind of an adoption process to be named mom or dad on that birth certificate.

This Completes Step 2 = establishing and terminating parental rights either through court proceedings which are completed after the baby is born and/or through adoption proceedings (depending on who has a genetic relationship to the baby).   

And at some point thereafter you will receive a new birth certificate with your names on it!

 

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I Have A Bee in My Bonnet About Egg Banking

August 2, 2016 | By: | Filed under: Current Affairs, Egg Donation, Embryos, Financing Fertility Treament or Adoption, Frozen Embryos, IVF, Personal Musings, The Journey to Parenthood, Thinking Out Loud, Third-Party Assisted Reproduction, Thoughts on Choosing an Egg Donor

I really shouldn’t be here right now.  But there is too much laundry, too many emails, and too many dishes to attend to not to choose to procrastinate right now and get some stuff off my mind.  I have had several conversations Today (yes this one specific day on which I am writing) with people entering into “fresh” egg donation cycles and who have debated using or tried using an egg bank.  And when I say “fresh” egg donation cycle I mean that they are using an egg donor who will donate all her eggs from one IVF egg donation cycle to the intended parent(s).  They have chosen not to use an egg bank.  One couple tried using a known donor, then went the egg banking route and are now almost broke and using an egg donation agency and a (wait for it) “fresh” donor.  One intended parent was convinced by her IVF Clinic not to waste money on an egg bank and instead choose to use a “fresh” (as in not frozen egg) donor.  The others weighed the pros and cons on their own.  I also have had the opportunity to discuss it with owners of egg donation agencies (of which, arguably, I am one) and an IVF physician who thinks egg banking and selling eggs is the next best thing to Viagra and sliced bread.

While I recognize the benefit egg banking has for women undergoing medical treatment which may render them infertile or otherwise potentially impair their fertility, or for those who choose to bank their own eggs for their own future efforts at conception, I am NOT a fan of egg banking.  So extreme has become my position on this matter than I am working with colleagues on a professional article on the risks women and intended parents are facing by not being properly informed about egg banking.

I get the appeal egg banking presents.  It’s faster and easier than using a fresh donor, and very much like the sperm bank experience in terms of selection, anonymity and being one more step removed from the genetic progenitors giving your child life.  For some people, I suppose, an egg bank makes alot of sense.  But for me, it’s a waste of time and money, risks the future of your family in ways that an egg donation agreement with a fresh donor can provide you (and the donor) protection, and potentially runs afoul of the public policy of most states, insofar as most egg banks provide “x” number of eggs for a set fee and then if you need extra eggs you can “buy” them for “x-thousand” of dollars per egg.  Has anyone other than me reviewed the documents egg banks present to consumers and comment on the fact that it is illegal to sell genetic material?  And hey, what about the fact that when you have to buy those extra eggs . . . had you used a fresh donor, you might have received the same number of eggs, or more, for an almost equal cost (my client who went through a known donation, an egg bank and is now using an agency would argue the agency was cheaper from the get-go) and without having purchased human tissue (you know human tissue, like a kidney?)??

And what of the success rates?  I have yet to see consistent data coming from within my industry that tells me that frozen eggs result in the same number of live births as result from using a fresh egg donor.  Egg banks certainly don’t seem to offer the possibility of having frozen embryos from which you might conceive a full genetic sibling.  Fresh donor cycles often result in leftover cryopreserved embryos which can be used to conceive additional children.  It doesn’t happen for everyone, but it happens for many.

I think the technology is promising.  But unless you need to preserve your fertility, I don’t think it is all that it is cracked up to be.  And who wants to buy a cracked egg anyway?

I don’t have a lot of time tonight, the dishes smell and the laundry is over-flowing out of three laundry baskets, but I wanted to start this dialogue.  I am so sad for my clients who have wasted time, energy, and money not getting pregnant using egg banks.

In the immortal words of Linda Richmond (from SNL) Talk Amongst Yourselves . . . and let me know your thoughts. . . .

 

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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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Five Hundred Twenty Five Thousand Six Hundred Minutes – How do you measure your life in infertility treatment?

March 26, 2015 | By: | Filed under: Deadly Silence, Egg Donation, Faith and Infertility, Infertility Awareness, infertility in the media, IVF, Miscarriage, National Infertility Awareness, Peace to Parenthood, Personal Musings, Recurrent Pregnancy Loss, The Journey to Parenthood, Thinking Out Loud, Third-Party Assisted Reproduction, Treatment, Uncategorized, visualization

 

Five Hundred Twenty Five Thousand Six Hundred Minutes

How do you measure your life in infertility treatment?

How do you measure a day, or a year?

 

Five hundred twenty five thousand six hundred tests
Five hundred twenty five thousand moments, oh dear
Five hundred twenty five thousand six hundred dollars
How do you measure, measure an IVF year?

In daylights, in sunsets
In phone calls, in cups of coffee
In inches, in pounds, in needles, in surgery
In five hundred twenty five thousand six hundred minutes
How do you measure, a year of infertility?

How about love for the baby you’re creating?
How about love for the people helping you conceive?
How about love for your partner or a friend?
Measure in love

Cycles of love
Cycles of love

Five hundred twenty five thousand six hundred blood draws
Five hundred twenty five thousand follicles to count
Five hundred twenty five thousand six hundred heartbeats
How do you measure the life of an infertile woman or a man?

In diagnoses that she learned
Or in times that he cried
In money they lost or the day the baby died?

It’s time now, to sing out
Though the story never ends
Let’s celebrate
Remember a year in the life of our infertile friends

Remember to love
Oh, you got to, you got to remember to love
Remember to love
You know that love is a gift from up above
Remember to love
Share love, give love, spread love
Measure in love
Measure, measure your infertility in love

Cycles of love
Cycles of love
Measure your infertility, measure your life in love

Inspired By Rent — Seasons Of Love, Lyrics

 

 

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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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