Posts Tagged ‘adoption’
January 25, 2012 | By: Liz | Filed under: Birth Certificates,Birth Orders,In the News,IVF,Parentage Orders,Pre-Birth Orders,Sam Sex Parenting and Reproductive Law,Surrogacy in New York,Third-Party Assisted Reproduction,Uncompensated Surrogacy
I have been watching all the coverage of the birth of Beyonce’s baby and the rumors she used a surrogate, and I have been fielding questions from clients left and right about whether this is true (I have no idea, please stop asking. This is what I get for engaging in legal debate on FaceBook!). I do have to say, however, that I am somewhat surprised by the lack of knowledge about surrogacy laws in New York. Most people think it is totally illegal under all circumstances; they are wrong. Most people think no one ever uses a surrogate in NY; that also is wrong. Most people think it is impossible to find a surrogate in NY; that is somewhat wrong. Most people that have some understanding about what is permissible regarding surrogacy in New York think that you have to adopt the baby in order to get your name on the birth certificate. This too is wrong.
So what is the deal with surrogacy in New York State anyway? Would you be surprised if I told you that one of the most active aspects of my practice involves surrogacy and it all takes place in the Empire State? Would you be even more surprised to know that it also is one of the more fun things I do and that I love helping people with surrogacy in NY. It happens to be one of the more time intensive aspects of my work but I get to dust off my old litigation garb and go to Court (in fact I am headed to Court this Friday) which always offsets the time spent drafting papers. It is one of the aspects of my work that truly blends all aspects of what I love doing as a lawyer. I get to help people have babies, I get to draft documents, motion papers, and go to Court and talk about esoteric aspects of NY law with judges. Indeed, the law in NY with respect to surrogacy is getting so well-settled thanks to recently decided cases (to the extent that any aspect of ART law is “settled” or established) that half the time the Judge just wants to engage in an intellectual debate about what the law does and does not provide for and why. Half the time I think they just want me to explain third-party assisted reproduction, IVF, Embryo Transfer Procedures, and the definition of an embryo, but far be it from me to (a) miss an opportunity to “argue” with anyone; (2) miss an opportunity to educate anyone about what I do; and (3) do anything that stands in the way of helping someone become a parent. But I digress.
The skinny on making someone else’s belly fat with your baby in the State of New York (and while I mean absolutely no disrespect to gestational carriers/surrogates and am awed by what these women do for infertile women and men, let’s face it, if you can FINALLY have a biological child and can do so without the proverbial bump, this may be a good thing. Trust me, having been pregnant 9+ times, most of us do not get a cute little bump ala Beyonce although I do like “the glo!” And for the record I am not talking about using a surrogate for vanity’s sake. I am talking about long battles with infertility etc). But I digress again . . . is as follows:
No compensation.
Must have some type of legal document prepared before cycle starts evidencing the parties’ intent as to who will be parents. This document is not a legally enforceable contract but is useful for many purposes, not the least of which is avoiding later disagreements over how the pregnancy will be handled and establishing intent for purposes of determining parentage (let your lawyer sweat the language in the Court documents but I do think there is merit to including this document when you are requesting a court order to obtain a birth certificate, although some attorneys may disagree with me on this — I haven’t yet had an issue submitting it).
After confirmed conception, sometime in second trimester, you should begin thinking about getting Court Orders determining parentage. These papers will be filed in Court AFTER the baby is born and depending on who is seeking parental rights it may be Family Court or Supreme Court (but recent case law indicates you could probably file in either Court for either gender parent–I am currently trying for the first time to file the paperwork for both mom and dad in the same court, to date I have always submitted them in different courts. Like I said, new case law is giving me an opportunity to try and streamline the process). There is a lot of paperwork to be prepared so be nice and give your attorney a break and give them a head-start. Please don’t descend upon us the day your baby has been born. Although, depending on our calendars we will probably try to help you anyway.
Make sure to notify the hospital social work department of what is going on so they are not caught off guard and can assist you with proper legal paperwork at time of birth.
After birth the surrogate (and her husband if she has one) will have to relinquish/surrender/terminate (pick your verb) their parental rights. They are both considered the baby’s legal and natural parents under New York law until they terminate parental rights and you get your Court Order. They should execute some additional documents as well, but they exceed the scope of the blog. A good reproductive lawyer will know what else should be signed at or around the time of birth in addition to documents terminating parental rights. Please note that, just because the surrogate and/or husband are taking steps to terminate their parental rights does not mean you are adopting your baby. Nor is there a home study involved in this process as there is in an adoption.
Around this time you get to take your baby home!
Your attorney next files your proceedings in whatever jurisdiction(s) in which s/he has selected for purposes of venue. Not adoption proceedings. I call them Parentage Proceedings or Parentage Orders.
It’s a good idea to try and get these papers moving through the court system as soon as possible after birth (doesn’t always happen as soon as everyone would like) and with as much speed as the court system will provide (there are options for making the process go more quickly, so talk to your reproductive lawyer as most of us feel that time is of the essence).
These papers request that the Court declare you to be the baby’s legal/natural/genetic/biological (pick your verb) parent(s), and that New York State replace the original birth certificate that was issued with the surrogate’s name (this must be issued under NY law until such time as the legislature determines whether it can forego this step). The birth certificate with the intended/biological parent(s) name on it looks identical to the first — no one will know the diff.
You can request to have the first birth certificate with the surrogate’s name on it be sealed. However, many intended parent(s) feel this is unnecessary as they have no problem recognizing the gift that their friend or family member has given them by carrying and delivering the baby — everyone knows already so who cares whether the birth certificate can be obtained without showing cause to have it unsealed. But this is a personal issue to discuss with your attorney.
If all goes well, the Court grants your petition(s) and you get the new birth certificate with your name(s) on it. As noted, the original birth certificate may or may not be sealed.
Depending on where in New York you did all of this will impact how quickly you get the new birth certificate with your name on it. I have had clients get one in 30 days and others have waited months. This truly will come down to red tape and papers not getting lost on people’s desks!
Can you find a friend or family member to carry a baby for you? You would be surprised at how many people do have someone in their lives who would be willing to help you. One thing I have noticed is that the people who have been more open and out-of-the-closet about their infertility often have more people offering to be a compassionate surrogate than those of us who remain silent. They can’t offer to help if you don’t know you need it, right?? For the record, we did have a family member who offered to carry a baby for us and while this wasn’t something we were interested in doing (we chose adoption instead), we were both moved beyond words by the fact that she even considered doing it. You know who you are. Love you!!
This blog is not intended to provide legal advice. It is intended to provide an educational summary and overview of what this attorney believes currently may and can happen in the State of New York with respect to compassionate surrogacy arrangements, and in order to obtain a birth certificate for intended and/or biological parents whose child was carried by a friend or family member. If you are interested in compassionate surrogacy you should speak with an experienced reproductive lawyer or family lawyer with experience with these types of proceedings.
And for the record, I believe Beyonce delivered her baby.
Tags: adoption, Birth Family, birth moms, gestational carrier, infertility, intent, miscarriage, Parentage, success
August 19, 2010 | By: Liz | Filed under: Current Affairs,Egg Donation,Faith and Infertility,In the News,Infertility In The Movies etc.,Peace to Parenthood,Personal Musings,The Journey to Parenthood,Thinking Out Loud,Uncategorized,visualization
Everyone knows that I am fan of Jennifer’s. I actually probably wouldn’t be married to my DH if it wasn’t for some advice her mom gave me a long time ago. But seriously, Jennifer is an extraordinary woman in all respects, and from my perspective even more so for the way she is approaching her quest to be a mom.
At 41, most of know that Jennifer is likely to be facing some fertility issues (although with her health conscious lifestyle and yoga-bod maybe she’s found the way to turn back time, she sure looks it anyway!). While most of us would be doing a little freak-out dance now, and panicking about the ticking time bomb that are our ovaries, Ms. Aniston seems anything but panicked. In fact, she seems rather Zen about it all. And that is exactly my point and what inspires me.
First, the woman KNOWS she is going to be a mom. One way or another the woman has total and complete faith that she will become a mom. Rather than spiraling into depression (as I did and many of us do), Jennifer has seemed to have found a way to let go and TRUST. This is, I think, the gateway to success.
I really truly believe that it is when you completely accept and embrace the concept that you will be a mother, no matter what and no matter how (IUI, IVF, IVF donor egg, gestational surrogacy, adoption, whatever is your path), that fertility treatments have the highest success rates. Study after study shows that the mind-body connection cannot and should not be ignored. Women who are able to be in the place that Jennifer Aniston seems to be in, are the women who are more likely to succeed with fertility treatments. It’s fact not fiction. I know — as does JA — that she’s got an edge on success that I wish more of my friends and clients had: The inner-knowingness of the inevitability of their impending state of motherhood.
Another thing that I think sets her apart from many of us (and I include myself in this group when I was in the first 4 or 5 years of treatment), is that by all media accounts, she seems fairly open to many different paths to parenthood. I am not privy to her conversations with her BFF’s but I am guessing that there isn’t much she isn’t considering about how she’s going to become a mom. That too puts her on the fast track to “mommydom”. Not all of us can be as enlightened and confident as she is, and I am not saying that she doesn’t have her moments of . . . doubt . . . but I really think that the confidence and openness that Jennifer Aniston is talking about whenever she is interviewed about becoming a mom is something that tells me it ain’t gonna be long before she’s announcing the arrival or the impending arrival of a little baby Aniston.
And for what its worth, I think she’s a fantastic role model for every woman, single or married, over the age of 35 who’s trying to become a mom.
ASSUME IT IS GOING TO HAPPEN, AND IT WILL.
p.s. and when you can’t totally assume it will happen, fake it, fake it until you make-it . . . because that’s another sure fire way to get your mommy-Zen fire burning.
Tags: actresses, adoption, biological clock, Egg Donation, hollywood, hope, infertility, Inspiration, intent, movies, Peace to Parenthood, visualization
May 18, 2010 | By: Liz | Filed under: adoption,In the News,Uncategorized
For those of you who are following this horrific story, here is a link to a newspaper article a colleague shared with me:
http://www.t-g.com/story/1634398.html
Tags: adoption
May 13, 2010 | By: Liz | Filed under: adoption,Egg Donation,Infertility on Television,Same Sex Parenting and Reproductive Law,Thinking Out Loud
I rarely watch television anymore. I am lucky if I get time late at night to watch something and then I usually elect to watch a re-run of The West Wing. However, the other night DH and I decided to stay up late and watch some television and he put on one of my favorite shows, Law and Order. This episode may have been a re-run but I am not certain; we were watching it on NBC during it’s regular time slot 10-11 pm ET. We only caught the last half hour, the part that always deals with the trial. This fact pattern was very convoluted and revolved around a conspiracy by a doctor and a family to cause someone’s death of cancer at a certain time so that specific amounts of money would pass to certain descendants and not to other people or organizations (I didn’t catch the fact pattern well and it was really intricate). Had the guy died of cancer on his own before some date the defendant and her partner would have inherited ten million dollars.
In the story, the prosecutor decided to use the fact that one of the defendants (who was a daughter of the guy who died and who was supposed to inherit ten million dollars) had conceived a child with her lesbian partner using an egg donor (at least I think it was an egg donor, it could have been that the defendant female partner had donated her eggs to her lesbian partner so that her partner could carry the baby for them to raise together . . . however, the prosecutor kept using the term “egg donor” so I assumed that the couple had used an egg donor and were planning on raising the baby together). To further complicate matters, the lesbian couple had entered into an adoption whereby one partner had adopted the other so that they could obtain insurance together etc. and more relevant to the Law and Order story line, to inherit money together.
The prosecutor wanted to use the fact that the baby, because it was conceived via an egg donor, was not really their child (biological or otherwise) to cut off any inheritance rights the baby might have to the ten million dollars, and thus deny the defendant her right to benefit from the baby inheriting the money.
This had to be a recent episode of Law and Order as the prosecutor is someone new, and Sam Waterston (sp?) is now the District Attorney or is in a more senior role and not trying cases. The law as it pertains to same sex couples in NY has been pretty well established for several years. Adopting an adult for purposes of a establishing a legal relationship between same sex partners is extremely difficult to do, and I believe there are and have been enough other laws that protect or recognize same sex marriages in NY that the adoption aspect of the story line was just plain stupid and offensive (if not legally wrong)! I don’t believe that one adult can adopt another adult. But . . .
Second and more to the point. Law and Order got the law wrong on egg donation!!!!!!!!!!!
Let’s assume first that it was a true egg donation whereby this couple used an egg donor to conceive a child they would parent together (and not that one partner was donating her egg to the other for purposes of conception). In NY, although there is no statute, there is a case that specifically states that woman who gives birth to a child or children conceived via egg donation is the legal and natural mother of that child or children. McDonald v. McDonald, 196 A.D.2d 7, 12, 608 N.Y.S.2d 477 (App. Div. 2d Dep’t 1994) (finding woman who gave birth to child conceived through egg donation to be “the natural mother of the children. . . .”). Indeed, this case and a long line of other cases in NY deal with the presumption that a woman who gives birth to a child in NY is the legal and natural mother of that child.
Law and Order usually has lawyers that check the facts and the law on its episodes. I am absolutely dumbfounded that they got this so wrong. Regardless of whether one member of this partnership donated an egg to her partner or whether they used an egg donor, that baby was the legal child of the woman who was going to give birth to it. Assuming the two members of this partnership had a legal relationship that could be recognized in NY (and maybe I am wrong on the adoption thing, but it seems that in 2010 it is easier to go to MA or Canada and get married than to try and adopt an adult (???) to create a legal union), that baby was a baby of their partnership and their love for one another, and if the baby was delivered in New York City or any of the five boroughs and they were legally married, then both of their names would go on the birth certificate.
This manipulative and legally inaccurate representation of same sex partnership laws, same sex parentage laws, and egg donation is staggeringly offensive and WRONG. Where were Law and Order’s lawyers in this? Do they no longer check that their story lines are factually and legally correct? And if they have lawyers, may I take a guess that their lawyers are 80 year old homophobic men and that the show’s writers must have been on acid when they wrote this episode.
I am anxious to watch a re-run of this show and figure out what the facts were, and to determine just how wrong Law and Order got the law and order of reproductive law.
Tags: adoption, Egg Donation, hollywood, Law and Order, same sex parenting, television
May 4, 2010 | By: Liz | Filed under: Faith and Infertility,Peace to Parenthood,Personal Musings,The Journey to Parenthood,Thinking Out Loud
Today I saw a pregnant woman on my way home from dropping off my son at school. I had been in this really amazing place of feeling overwhelmed with gratitude for my life and my children. I was literally weeping at this vision of a train of school buses leaving his elementary school. I had him in the back seat. This was my dream for years and now I am among those whom I envied. I am a MOM. It was the most beautiful moment and I stopped myself to “appreciate” the appreciation in my heart. I stopped myself to thank the Universe. I looked in the rear view mirror and told my son I loved him. Life was full, rich and I was blessed.
I dropped him off and debated which way to drive home. I opted for the way I came so I might catch a glimpse of those school buses again. I could have chosen a faster route home, and a stop at Starbucks, but I wanted to see those buses and feel that wonderful sense of perfection and rightness again. I wanted to hold onto it for as long as I could. Soon, I knew, the day would interrupt and I would be struggling to find that sense of peace and joy. Maybe I should have taken a right instead of the left and gone to Starbucks. My day sure as hell would have been easier.
Because whammo there she was. She was hugely pregnant. She was wearing a white shirt that barely stretched across her belly. She was big and beautiful and I could see her belly button sticking out from a 1/4 of a mile away. With a sudden intake of breath I went crashing from an emotional space of rightness and calm, free falling my way to the depths of despair. Choose the profane word you like most and insert it here. Mine begins with an “F”.
WHY???? Why does this continue to bug me. Why cannot I get past my need to be pregnant. My life is full and rich, and challenging and amazing and hard and beautiful . . . just as it is intended to be. And yet one siting of a woman filled with the life that I have yet to bear and I turned into a weeping mass of depression. I pulled the car over to watch her for a few moments, turned on the Dixie Chics’ song about infertility, and had a good cry.
I imagine my heartbreak this morning was more real because I recently lost an unexpected pregnancy. I spent a little over a week of my life living in wonder at the miracle of nature and my body that I could conceive at 43 without Lovenox and without donor sperm. According to the ultrasound, I was 5w4d when I found out I was pregnant. I didn’t keep the ultrasound because I didn’t want another reminder. I knew the pregnancy wouldn’t stick. That was too much to ask for. But I did live with this beautiful secret for much longer than I expected to until the inevitable . . . .
Now I am struggling to make sense of this accident. My body is still recovering, and I am sure I am 100% normal in my response to that which I long to have, and see all around me, and all too often. It is Spring and I have always noticed that I see more pregnant women in the Spring. It sucks that so far this experience has been denied to me. I sat in the car praying that one day that the Universe will let me carry a child to term. I also accepted the fact that there is a lot of work and change that I realize I must do if I want to realize my dream (another subject in and of itself).
But what shocks me is that I/we can go from such unbelievable peace, contentment and gratitude to the depths of despair so quickly. This is what infertility brings us. I have been thinking alot about this infertility rollercoaster thing we’re on. I don’t think it’s a roller coaster anymore. I think it’s more like bungy jumping. Every attempt we make at conception or adoption is like diving off a bridge with a seemingly thin rope tethered to your ankle. Will the rope be strong enough to pull us up before we hit the ground? Is it short enough to prevent us from smashing into the ground or will we crash and burn? There is so much faith that goes into that bungy jump, so much strength and bravery that we need in order to let go and try and feel the sensation of falling safely. Or to try and feel the the glory of the wind rushing past our face and facing the risks and fears that the “velcro” won’t stick. My velcro didn’t stick this time and boy did I crash and burn.
But I learned something too. I learned that I don’t want to give up my dream of carrying a child. I’m willing to do the work and face the risks inherent in striving for this as my reality. I learned that I am willing to dive off of the bridge again. In fact, I am craving and longing for that opportunity. I am officially no longer risk adverse and have put nothing but my happiness and the desire to fill each and every one of my dreams — not just being pregnant, but all of what I need and want as a person but have been too afraid to ask for because of what it might mean to the rest of my life, or how it might impact the rest of my life. I decided that my children deserve a happy mother, not just a good mother but one who is happy and fulfilled by all aspects of her life and her being-ness. Indeed, I think now that if I hadn’t had the miscarriage I might have failed to teach my children a valuable lesson: to believe in yourself and your dreams. I discovered I am brave and strong.
I know now with a certainty that words cannot convey that my children came to me out of my faith that I would be a mother; that the events and circumstances in my life have all had meaning both in the way they came to be and because of the time at which they were realized. The Universe plays a roll in everything that happens, there is no coincidence to anything that has happened to me. All of it was part of my own divine inspiration. And with that divine inspiration I will get to a place where I am standing on top of the bridge again waiting to feel the rush of wind, the freedom in the free fall and the unknown, and the joy and terror of staring my demons in the face and waiting to feel the cord tied around my leg catch me as the velcro finally sticks. There is more to my journey through infertility. Of that I am certain. Of the outcome, I am certain in that too.
I have spoken with three clients today. All of whom feel as I do. That the journey seems too hard but that there must be purpose to it. One client left me the most beautiful voice mail last week, thanking me for being a part of her family’s journey and telling me not to give up on my own (she didn’t know about the miscarriage but she must have sensed that I have been depressed and struggling with many different issues in my life and my family). She also said that she knew one thing with certainty, that their journey was enriched by knowing me. I was moved to tears. My experience as a woman, as a lawyer, as an infertility patient are enriched by each of my clients. As I help them with their contracts, with their search for a birth parent, with the daily ups and downs that come on this path, I learn new ways of expressing hope, of finding peace in each moment, of being grateful for what I do have and in renewing my faith in what is possible. I am as grateful for each of my clients as I hope one day they will be (or are) for the work that I do for them. But no one has ever expressed their appreciation or gratitude as she did. I know I am doing exactly what I was intended to do and I would not be doing this work had I not endured 4 IUI’s, 7 attempted (six completed) IVF Cycles, 3 adoptions, and now ten miscarriages. It all had purpose.
This morning as I sat in my car having my cry I wondered why it is so hard (as the Dixie Chics sang so eloquently). Is there is a reason it is so hard? And I realized that there is a reason. It is because it’s part of learning that the process doesn’t have to be hard. I can instead choose to believe in the outcome I want. What is hard is the fact that we don’t allow ourselves to believe in what is possible. And in not believing in what is possible, we prevent it from taking place.
It is not easy to go from the pain and grief I felt this morning to having total and complete faith that my dream will one day be a reality. But if I don’t hold steadfast to that dream and believe in believing, the velcro will never have a chance to stick. These last few months I have discovered a place inside me that is strong and fearless. I know without a doubt that I have the power to create my dreams. I am glad I saw that pregnant woman this morning, and I am glad that I spent time weeping for the child I just lost. But that child is a reminder that my body works, that my dream is alive, and that I am moving closer to it. We are all moving closer to it, as long as we create the vision and believe it will happen, we are moving toward its’ creation. In this case, it’s the creation of our child and/or our family.
It’s okay to have hard days. The hard days make us understand how worthwhile the journey is and make us appreciate the easy days more. Today, I am taking baby steps toward my next baby’s steps. I don’t know when, but I do know it will BE. What I can’t do is allow the hardness of the process overtake the belief in its outcome.
If you too are having a hard day, remember that you’re not alone. And remind yourself to hold onto your dream and to make it more and more vivid every day. Your baby, and mine, are coming. In their own time and their own way. As it is meant to be. I wouldn’t have met all these wonderful men and women if it wasn’t for the way it had to be. I wouldn’t change a thing. Not even the baby that I just lost. S/he taught me an incredible lesson. To have faith in myself.
It may sometimes take baby steps to get through the day, or the week or the month. But each little baby step is one GIANT step closer to the reality you envision. Believe yourself. Believe your dream. Don’t give up.
Tags: adoption, biological clock, faith, hope, infertility, Inspiration, intent, IVF, miscarriage, Peace to Parenthood, personal, pregnancy, success, visualization
