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.

I mean really, you want to accuse me of moral relativism for going through 7 IVF cycles, 10 miscarriages, and three domestic adoptions (only two of which resulted in permanent placements, and my gorgeous beautiful babies), fine so be it, but don’t give me some holier than thou BS, you want to do good and say you are superior to me, adopt an older child from the foster care system, someone who has been abused or abandoned.  Sandra Bullock thanked all those very wise and strong people who have loved a child that was otherwise left without hope.  Indeed two of the Best Picture nominees, The Blind Side and Precious, would be movies I suggest the people who criticized Celine Dion and the gentleman who accused me of having poor morals, watch and think about.

Do you really think that any single one of us has the right to judge the other?  Especially when it comes to something so intimate like family building.  I don’t believe it’s conceited to want to feel a baby grow inside me.  I don’t believe it’s conceited to want to adopt a newborn, nor do I think the vast majority of birth mothers in the US are “coerced” (as that gentleman alleged) by other people into placing their child for adoption.  They may be economically coerced, they may be coerced by the life they are stuck in, but any birth mother that can make the self sacrificing choice to place her child with another family to give that child a better life (whether in this country or another) is someone truly worthy of being called a hero.  And the international adoption community was until recently (and may still be) rife with black market baby stealing, and ethical issues that the Hague was designed to prevent.  No system of child bearing, family building, whatever you want to call it is better than another.  None of us are morally superior to the other.  None of us.  We all have to walk our own path.

And as the Dixie Chics understand very well, for most of us infertile people, that path is So hard.

So do me a favor.  Lay off Celine Dion for trying to have another baby through IVF.  Lay off me for trying to help people have children however they choose to do so.  My goal is to build families and to return the gifts that have been given to me by Dr. Chung (a gift to his patients and reproductive science), all the amazing people at Cornell (M. and L., Dr. Rosenwaks and Dr. Spandorfer), my husband, my children’s birth parents, just to name a few of the people who have blessed me.

And know this, my office, my practice, my agency, are and will always hopefully be a safe haven for my clients.  I promise never to judge you.  I promise to help you achieve your dreams (even if that means working with another agency, lawyer, whatever) . . . I am paying my blessings forward (as another great movie would say).  Moral relativism or not.

And what the hell is moral relativism anyway?

My coach gave me a lot to think about and work on and I must say that we worked through many of my personal issues surrounding feeling overwhelmed and now I am feeling much more empowered, but the bottom line I think was that I was (1) avoiding facing the issues and work that were bugging me ; (2) I wasn’t taking time for myself (hello Martyr Liz); and (3) I wasn’t taking time to look around me and feel grateful for things.

So this morning, as I do almost every morning, I sat down for my meditation time (which I will admit I haven’t had in over a month because of the demands of work) and I looked out the window of my sun porch and NOTICED the beautiful yellow and orange trees outside my windows.  Literally overnight they had gone from green to the amazing mix of colors, they are blazing with light and color and reminding me of the limitless capacity we all have for change.  Feeling overwhelmed is only a feeling.  Feelings are not facts, and they do not usually accurately represent where we are in our leaves.  If the trees in my backyard can go from spring green to autumn blazing bold orange and gold overnight, than so can we.  We can go from feeling overwhelmed, stuck, frustrated, anxious, or even despair at the stress in our lives presented by childlessness, infertility, infertility treatment, worries about follicle counts and E2 levels, birth mothers not returning our calls, our adoption cell phones not ringing, our agency calling to tell us our referral has been delayed (again) . . . whatever it is . . . to recognizing that we really are all okay, everything is perfect in our lives right now and that we are safe and not alone.  It doesn’t take much.  For me all it took was taking a break and looking and really seeing outside the window of my world.  That tree changed overnight.  Nothing is permanent or forever.  Those leaves will be gone in a few days leaving me with new views to ponder.  Tomorrow your E2 level will be different, you might get  a call that a spot opened up on a dr’s wait list, or your referral might come in from your agency.

Take a moment and look at something outside of your normal consciousness.  Something you take for granted, something you ignore.  Notice how beautiful and miraculous it is.  The write down what you noticed about it, and then write down everything that is making you feel overwhelmed or stuck.

Next, write down the opposite of everything that is making you feel overwhelmed or stuck.  Write down the way you want it to be.  That tree in my yard changed overnight.  In a few days it will change again.  It reminded me that our lives our fluid and constantly moving.  Our feelings are just feelings.  Write them down, then write down what you want the reality to be.  I bet you anything that just like the blazing fire of autumnal glory outside my window that is transfixing me and inspiring me, the thing you look at will change your perspective as well and you will see or remember that the list of what you want is moving closer to you every second.

And if that didn’t work . . . just remember this adage someone once told me.  Imagine you are swimming in the ocean toward the shore.  But the current is so strong that as you swim you get no closer to land.  However, every stroke of your arms and kick of your legs fighting that current is making your legs and arms stronger.  When that current releases you, you will literally fly through the water toward the land at a speed you cannot comprehend right now.  Every stroke is building muscle.  Every breathe is keeping you strong.  Because nothing is permanent and that current will disappear and you will be swimming faster toward your dreams and goals than you can even begin to comprehend now as you fight with that current.  Surrender to the current.

Starting an adoption plan isn’t easy stuff for anyone.  Most prospective adoptive parents come to the process carrying a hefty amount of baggage.  Whether it is from infertility treatment, or being an “older” adoptive parent, or our marital status, most of us are really scared about what a birth family may think about us and who we are.  There is no doubt that the fear of rejection is daunting.  It’s amazing what we do to ourselves through this process.  How we compartmentalize our personalities and our features and try to “predict” what it is that might make us more appealing to a birth family or what might make us less “pickable”.  It has gotten so out-of-control in some respects that I now lovingly call it the “Pickable-Factor” or the “Pickable List.”

The Pickable Factor is anything that we think might disqualify us or make us less attractive to a birth family, ultimately causing her to choose another adoptive parent(s) over us.  Every one of us has our own list of “pickables” that we think will make our wait take longer.  I don’t care what is on your “Pickable Factor” or your “Pickable List”.  The Pickable Factor is a myth!  Birth families usually don’t care as much about what’s on our Pickable List as we do.

Now before you go dismissing me altogether, please keep in mind that I have been on both sides of the fence.  I am an adoptive parent twice over and I am adoption advocate and professional.   And I can count the number of times on one hand that a birth mother has “rejected” an adoptive parent because of a “Pickable-Factor.”   I don’t mean in any way shape or form to dismiss the fears that give rise to our list of Pickable Factors.  I do want to reassure you that most, if not all of the time, what we think is going to disqualify us or make it harder to be chosen by a birth mother are not really what birth families are focusing on when trying to find a forever home for their baby.  

Among those of us who may have even greater fears regarding rejection by birth parents are prospective adoptive parents who are cancer survivors or who have some physical disability.  You may think that having had cancer makes you somehow less “pickable” than another adoptive parent.  But in my experience, it really isn’t true. The right birth mother is not going to care about your medical history.  Just like the fact that she’s probably not as likely to care about your religion, or your age or anything else on the list you’ve created.  She’s going to pick you because of some inarticulable, beautiful quality in you, one that is completely separate and distinct from your medical profile.  Or, maybe she chooses you because of a random baseball cap you’re wearing in one of the photographs in your dear birth mother letter or your adoptive parent profile.  (And yes, it can be that random.)  My point is this, what most birth families want and what we think they want, are vastly different.  Your Pickable Factors are exactly that, your Pickable Factors, no matter how consequential you may think they are.

            I recently gave a seminar on adoption advertising.  Although the crowd was relatively small, it was a diverse group, including three women who are cancer survivors.  Two of these women have children through adoption and the third was waiting to be picked by a birth family.  One of the women was very open about her experience (we’ll call her “Adoptive Mom A”).  Adoptive Mom A talked about how scared she was that a birth mom would reject her and all the things on her “pickable” list.  Her greatest concern, however, was that the birth mom wouldn’t want to place a baby with her because of her history of cancer.  She also had been afraid that her age, her physical appearance and her religion would ultimately (and always) cause a birth parent to choose another adoptive couple.  Much to her surprise, however, she and her husband met their first birth mother within a few months of starting their search.  And they met their second birth mother – for their second adoption – fairly quickly too.  Surprising to her, neither of the birth mothers with whom she and her husband made adoption plans, cared about her history of cancer, nor her religion nor her age.  The other adoptive mom who is a cancer survivor, Adoptive Mom B, also spoke about what it was like to search for a birth parent with this (as she put it) “elephant in the room.”  When she and her partner finally met the birth mother who chose them to parent her baby, the birth mom didn’t ask a single question about the cancer even after Adoptive Mom B brought it up.  What made these birth families look past something like a history of cancer?  Adoptive Mom A said that her first birth mother chose them because she just felt more “comfortable” with Adoptive Mom A and her husband; their birth mom felt less “judged” by Adoptive Mom A and hubby than she had when she met with other prospective adoptive parents.  Adoptive Mom B said that their child’s birth mother says she picked them because they looked like a fun family and that their child would live an active, fun-filled life.  Cancer, apparently, wasn’t on these birth parents “Pickable List.”

What these two women shared is consistent with a recent informal survey published in Adoptive Families Magazine.  The survey presented the birth parents’ perspective and what they are thinking when they choose adoptive parents (see Adoptive Families Magazine September/October 2008 issue at p.40).  Among the criteria Adoptive Families presented as important to birth parents were a stable and financially secure home life for the child.

            Everything we list among our Pickable Factors is legitimate, to us.  But it isn’t always relevant for birth families.  A dear friend (Mel from Stirrup Queens) emailed me about this issue, and I took some time to really think about it.  I put myself back in “waiting mode” and I thought about things from the birth parent perspective.  Ultimately, I think what brings us together with our children’s birth parents is largely out of our control and that is very hard to deal with.  We can obsess about just about anything and everything as part of this process; it is so hard to live a life with so little control about how, when and where we’re going to become a mom or a dad.  But the reality is that at the end of the day the obsessing and worrying is for nothing.  Cancer, your religion, your marital status are all aspects of who you are, but they don’t define you.  It’s what defines you as a whole – not just itemized, compartmentalized things on a list, even elephant sized things – that make a fit for a forever family.  The right birth family for your situation usually is the birth family that sees the whole you and looks past elephants and minutia to see who you really are and what you have to offer a baby, even if the essence of you is somehow inarticulably summed up by the beautiful baseball cap you’re wearing in the picture you threw into your profile at the last minute.