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The Top Ten Things Reproductive Lawyers Can Help You With – Part 2

February 23, 2016 | By: | Filed under: anonymous sperm donation, Birth Certificates, Birth Orders, Current Affairs, Egg Donation, Embryo Disposition, Embryos, Family Building Law, Frozen Embryos, fund management in third-party assisted reproduction, Gestational Carrier Arrangements, infertility in the media, known sperm donation, Parentage Orders, Pre-Birth Orders, Reproductive Law, Reproductive Lawyers, Same Sex Parenting and Reproductive Law, Surrogacy, surrogacy escrow management, Third-Party Assisted Reproduction

So in Part 1 we discussed some of the agreements you might need to enter into when building your family through third-party assisted reproduction and how my colleagues and I can help you with them.  Now let’s take a look at some of the more obscure but equally important issues that might come up.

back to our top ten list:

(6) Using cryopreserved embryos in the event of a divorce or after a death.  Do you know whether you can use frozen embryos after a divorce or separation?  Did you know that this is one of the hottest legal issues in third-party assisted reproduction law (Hello Sofia!).  What if you want to conceive a child using frozen embryos after your partner dies?  Will you be a legal parent?  Will your child be entitled to inherit from your partner’s estate, or your partner’s social security benefits?  These are some of the most complicated and cutting-edge issues in reproductive law and you don’t have to be Sofia Vergara to regret not having had a thorough discussion with an attorney before you make decisions (or have a pre-conception embryo disposition agreement prepared or even just check off a box on a clinic consent form) that has the power to change your life plans.  And heck, just look at Sherri Shepherd and her battle not to have child support obligations.  That case just turns my stomach.

(7) Managing money in a surrogacy arrangement:  You may be spending over $100,000 in connection with your surrogacy or receiving tens of thousands of dollars in compensation as a surrogate.  Do you know where the money is being held?  Do you know how and when it is being paid and what documentation, if any is being provided to support the payment?  What happens if your agency goes under and the escrow account was held by the agency?  Are independent escrow managers necessary and when should you retain one?  Do the state laws which govern your surrogacy arrangement provide special rules for how and where money must be held?  How do you know if your money is safe?

(8)  Doing a home insemination:  It may be a more affordable way to conceive your child (and more intimate as compared to the stirrups in your doc’s office), but will you have a legally recognized family if you do a home insemination?  Did you know that in some states a doctor must perform the insemination in order to terminate the sperm donor’s parental rights and ensure that the intended parents are deemed legal parents?

(9) Getting your birth certificate:  How and when can you get a birth certificate with the intended parents'(s) name(s) on them?  Can you get them before the baby is born or only after birth?  Do you need to do a second or step-parent adoption?  Is the law in the State in which your baby will be born uniform throughout the State or does it vary County by County or even Judge by Judge?  Do you know what you need to do, where you need to do it and when you need to do it in order to obtain a birth certificate for your child with your name on it?  One of my colleagues has a fairly famous quote from an interview he gave about the fact that the ease with which he can or cannot obtain parentage orders sometimes comes down to the button he pushes in the elevator in the courthouse.  Are you walking into a courthouse like that?  Do you have any alternative?

(10) Understanding the impact of changing laws:  Third-party assisted reproduction is a new and emerging area of the law.  Some states have statutes governing egg and sperm donation, and surrogacy, others have only case law (or judge made) law.  Some states have statutes or laws which are unfavorable and others have laws which are favorable to different types of third-party assisted reproduction.  Some states have outdated laws that may change in the near future.  Other states have laws which may be unconstitutional given recent decisions from the United States Supreme Court, but the state may not yet be complying with or adhering to new and evolving constitutional principles.  When and how will these evolving laws impact your family building and the recognition of your family, as a family?  And as long as we are discussing the status of various state laws, doctors (as much as we love and need them in this process) don’t always fully understand the laws, especially the nuances with which my colleagues and I have become familiar.  Just as I would never try and tell my clients what their latest blood test results mean,  and my clients should not listen to me with great seriousness when I put on my honorary lab coat, they shouldn’t listen to their doctor’s advice about what they can and cannot do to build their family.  Sure, get her opinions on what options you have, but check with someone who actually practices reproductive law before you cross a type of third-party assisted reproduction off your list because your doctor tells you that option isn’t available it to you.  

My colleagues and I can help you answer most, if not all of these questions.  We can help you make smart (or smarter) choices as you begin the often complicated process of building your family using donor gametes like egg, sperm, or embryos, or with the help of a gestational surrogate.  We can protect you in almost all of the scenarios and situations discussed in this top ten list.  Reproductive lawyers are here to help you become a parent and help make sure that your legal parent-child relationship and family are recognized by the government and other people who might try to challenge your status as a mom or dad.  It’s that simple.  And it’s that important. 

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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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Halle Berry Battles the NOvary: Pregnancy Defies the Odds of Fertility

April 17, 2013 | By: | Filed under: Age and Infertility, Egg Donation, In the News, infertility in the media, Infertility on Television, IVF, Personal Musings, Thinking Out Loud, Uncategorized

So Halle Berry is pregnant at age 46. She’s approximately my age. Jealous much? You betcha! You all know I want another baby. It’s hardly a secret; certainly not from my kids, my dear husband (DH), most of my friends, and Dr. C. I have become somewhat preoccupied with the notion of being pregnant at such an advanced age — my BFF from High School and my BFF from College both think I am absolutely, completely and utterly insane to want to bear a child at this age. [btw, I have a college reunion coming up, whadya wanna bet that many of my classmates have just started down the path toward parenthood and have little ones?! I am taking bets!]

But clearly, if judging from no other demographic than my client base, I am far from alone at wanting a baby in my mid-forties. I was somewhat surprised but quite happy when I heard that ASRM just increased the recommended age limit — cutoff — for women undergoing ART procedures to something like age 55. While I am not sure my own mojo is going to keep me going for another 10 years, I am delighted that ASRM is now recognizing and giving an opportunity to all those healthy women who are in a deadlock battle with the NOvary because they decided they wanted a seat on the New York Stock Exchange before they wanted a seat next to a breast pump. And these days those goals can and do become mutually exclusive. Sheryl Sandberg aside — who managed to pop out her babies in her mid-late 30’s, and no doubt did her research about declining fertility before making an educated decision to have her children while she still had a decent chance at doing so using her own eggs — most women who truly want and love their careers, or who truly want to find the right partner, wind up face to face with their biological clock, otherwise known as the NOvary.

The NOvary, to remind you, is the ovary that says NO! I am not going to give you a healthy egg. My days as a functional ovary have ended. Didn’t you read the memo I sent you (and Sheryl Sandberg) when you were 35 and I was starting to explore ads for condo’s in Miami? I am the NOvary, I am in control of your egg quality and egg quantity and good luck trying to have a baby without my cooperation!

But thanks to egg donation and now expanded age limits by ASRM, those of us with career aspirations or who haven’t quite found the perfect partner have been given a reprieve, a few more years in which to squeeze in our baby-making, and laugh at or otherwise stare the NOvary down.

The funny thing was, as I sat down to tackle today’s blog I wasn’t sure whether I was going to write about choosing an egg donor and some recent hullabaloo over ads for egg donors that were posted at MIT, or whether I was going to explore the whole notion of whether someone can or should be deemed too old to become pregnant. As I perused all my research on age and egg donation, and age and parenting, I stumbled across an article from TheBostonChannel.com which I had printed out in February of 2012. “How Old is Too Old To Have A Baby? Older Celebrity Moms Blurring the Biological Lines.” Half way through the first page of the article I read the following:

“Since 1980, the number of women giving birth after age 35 had tripled, and after 40, guadrupled, as more women climb the career ladder and take longer to find ‘Mr Right.’ In the media, we are bombarded by images of glamorous, 40-something celebrity moms like Halle Berry . . . who make it all look easy.”

BINGO, topic decided. Clearly Halle and I have something in common and something of which I wish to speak. But before I do, I want to be clear and say that I have no personal knowledge of whether Halle used any kind of assisted reproduction to conceive her baby (despite the myriad comments on facebook from my colleagues — all of whom stop just short of stating she used an egg donor to avoid risking a lawsuit), but I do find it interesting that an article and quote from a prominent fertility doctor written a little over a year ago would mention Halle Berry as an example of celebrities who are blurring the lines between what can be achieved the old fashioned way, without medical technology. You do the mental computations on this one. Coincidence, or did that doctor know something and Halle’s hiding something?

For what it’s worth, I do have more than one personal friend who conceived on their own in their mid-late 40’s such that I do believe it is possible that Halle could have conceived without assistance, coincidences raised by the aforementioned article aside. But Halle is my blog inspiration for today because she is blurring the lines and that pisses me off.

The reality is that for most of us mid-forty-aged women, we will need an egg donor to conceive a child. The NOvary has hit her stride by the time we have hit 40 — let alone 45 — and she ain’t gonna budge from her beautiful condo in Boca no matter how much we beg and plead. As I have been working on my egg donation book recently, it has taken on a new meaning as I often find I am writing not just to a group of women whom I typically represent in my legal practice, but I am writing to myself and for myself. I also am finding my new book enriched by my own efforts to justify my decision to bring another life into the world at this age, and gaining a better understanding of how and where to conceive this new life. For example, I recently was astonished to learn that by the time a woman reaches age 40, her chances of conceiving using her own egg in any given month declines another 2-5% per MONTH. The NOvary is powerful and while one day I am sure science will find a way to stop her, right now my age alone pretty much guarantees that I need an egg donor. And Halle and I are in the same age demographic whether or not she hit the genetic jackpot and managed to defeat the NOvary by some major miracle which did not involve donated eggs.

But that’s the point! Halle is blurring the lines especially for anyone who isn’t ready to face the reality of our rapidly declining fertility in our forties. I have reconciled myself to the fact that my peak fertility has long since passed and I acknowledge that I share the same spot in the waiting room at the fertility clinic — or should I say egg donation agency — as all the Sheryl Sandberg wanna-be’s and all the women who hold seats on the NYSE, or who have finally found their mate. I doubt that most of my contemporaries, however, even those who know and understand what I do for a living, truly understand just how high the odds are stacked against us. Indeed, at a recent dinner with a fertility doctor I sought to learn more about the advantages of egg banking — or more precisely the decision to freeze one’s eggs to be used later in life when a woman is ready, willing, and able to have a baby on her terms. The doctor explained to me that far too many women are coming to him to freeze their eggs in their late thirties or even early forties — an age at which he often won’t even discuss permitting them to freeze their eggs. What he was trying to tell me, and he is by far not the first fertility professional to tell me is this: women are thinking of using egg freezing to buy themselves more time but are coming to the fertility clinic when their eggs already have passed their expiration dates and when the NOvary has taken up residence in Boca. The women who wish to take time before becoming a parent and who should be freezing their eggs are at a minimum ten years younger than the ones seeking out this new “stop-the-NOvary” technology. And Halle’s miracle conception isn’t helping doctors explain to all the women asking to freeze their eggs at age 35, 39, and most especially at age 41 that it’s probably too late; its certainly too late to spend thousands of dollars freezing crappy quality eggs! Just because ASRM says we can continue to try getting pregnant using medical technology when we are 46, 49 or 51, does NOT mean that medical technology will involve the use of our own eggs. Just because Halle got pregnant at 46 (presuming she has used her own ova) does NOT mean that women can wait until whenever we damn well choose to have a baby.

I love Halle, I think she is beautiful and talented, and a great mother. And it’s none of my business how she conceived this child. Except that if she did use an egg donor, or any kind of medical assistance to conceive her baby, she has truly done every woman who looks to her as a roll model a huge disservice.

My other love, Jennifer Anniston, who I hope will be the next celebrity to announce her impending motherhood, has made remarks which lead me to believe that she recognizes biology is not on her side (and to be fair Halle did say she thought this phase of her life was over — but what phase of her life did she refer to? Getting pregnant the old fashioned way or changing diapers and breast feeding?).

I also get, as a reproductive lawyer, why Halle might not be able to say she used an egg donor. If she used an egg donor and entered into an anonymous egg donation agreement, she might be legally precluded from making any reference to egg donation when relating details of her conception story, lest she inadvertently reveal the identity of her egg donor. This is a discussion I have had with celebrities whom I have represented and who have used egg donors: Whether and to what extent they are willing to go public, as there are ways to go public while still protecting the anonymity of their egg donor. It can be done and I am hopeful that one of them will one day — when she and her family feel the time is right for their family — make some kind of public remark about how their family was conceived. I also understand, however, that to make that statement is to forever disclose very personal details involving their children. These are details that their children should have a right to agree to share with the public or request remain a private, family matter. But many of my colleagues feel that the minute Halle Berry accepted her status as a premiere celebrity that she lost that right to be private and even more, voluntarily gave up her right to privacy in the interest of promoting that status as a female celebrity roll model which she has so openly embraced. I think it’s worth exploring this aspect of egg donation in the celebrity community in a blog devoted more to legal and ethical issues that are discussed when drafting an anonymous egg donation agreement. But putting these dynamics and very delicate issues aside, there is no getting around the fact that Halle’s pregnancy is going to perpetuate the overwhelming misconception that women in their mid-forties can get pregnant with a healthy infant, carry to term, and live happily ever after. The percentage of women who actually achieve this, however, are less than 2% of the female population.

More and more young women are getting the message. But far too many women age 35 and older simply do not understand the ticking time bomb that is the NOvary and will look at Halle and think “see she did it! so can I!”

Sadly, the reality is that Halle is (again assuming this is an old-fashioned conception) one of an extremely small number of women who get pregnant in their mid-forties. She is incredibly lucky. The kind of lucky that wins the $110,000,000.00 lottery. Congratulations to Halle (and my thoughts and prayers are with you Jennifer and Justin), but to anyone who looks at these women and think they are representative of the general population, or that they indicate a realistic chance for conceiving a baby using your own eggs at the same age as has (presumably) Halle, please do your research. By the time we turn 30, 90% of our good, genetically normal eggs have joined forces with the NOvary, by the time we are 40, 95% of those eggs have moved into that plush condo in Boca. The older you are, the more risk you face of serious infertility issues related to egg quality and quantity, and high rates of miscarriage due to chromosomally abnormal eggs. Halle may have won the lottery. That she is healthy enough to carry a pregnancy I have no doubt, but that she had healthy enough eggs to easily conceive this baby, that was a real long shot and if she did get pregnant using her own eggs, she is one helluva a lucky lady. Because 99% of the rest of us aren’t going to be so lucky. Please don’t look at Halle as your inspiration or roll model, whatever it was that led to the conception of this child defies the laws of fertility. I want all of us to have babies regardless of whether we are 35, 45, or perhaps even 55. But using our own eggs at those ages is something we must face as increasing unlikely as we increase in age.

Donor egg, and even egg freezing, give us the chance to wait until we are 46 to have a baby. Whether or not Halle is one of the many, many women who chose donor egg to help them conceive is something we may never know. But a word to the wise: don’t assume she conceived that baby without the help of medical science and/or another woman’s healthy egg. As I said in the beginning of this blog, a little over a year ago Halle Berry was cited as an example of the women in Hollywood who are blurring the lines and confusing women into believing our fertility exists far longer than it realistically does. What an interesting coincidence that a year later, she is announcing that she is pregnant and that a wonderful miracle has taken place.

All babies are miracles, the question is whether and to what extent Halle’s pregnancy and her little miracle will continue to confuse, confound, and frustrate all of the women who look to her as a symbol of fertility, of a fertility that frankly does not exist for the vast, vast majority of 46 year-old women. The odds of someone like me conceiving using my own eggs? Let’s just say I don’t play the lottery. If I choose to have a baby at any point in the coming months or years, it will be from the miracle gift of egg donation. I’d rather bet on the odds of having a 75% chance of conceiving and carrying to term than the 95% odds against me being another Halle Berry.

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The Bizarre World of Embryo Banking. Where My Motherhood and Morality Meet.

December 7, 2012 | By: | Filed under: adoption, Check This Out, Current Affairs, Egg Donation, Financing Fertility Treament or Adoption, In the News, IVF, known sperm donation, Personal Musings, The Journey to Parenthood, Third-Party Assisted Reproduction, Thoughts on Choosing an Egg Donor, Uncategorized

Every once in a while I have true conflicts between my self as a former infertility patient and my career as a reproductive lawyer and adoption attorney.  A couple of years ago, I wrote a law review article on the disposition of frozen embryos, and whether or not talking about embryo adoption was legally correct whether the better, more appropriate terminology was/is embryo donation.  There are hundreds of thousands of frozen embryos in cryopreservation in this country where the intended parents of those embryos no longer wish to use the embryos for their own family building.  These embryos are often referred to as “leftovers” a term which somewhat disturbs me but is strictly speaking, accurate.  These embryos are “leftover”, after a family was created through IVF and now remain in a state of frozen suspension.  Many of those embryos could be used to help build another family, and be donated to an infertile couple.  There was some confusion as to whether these embryos should be placed for adoption or donated in a similar manner to egg and sperm donation and I wanted to resolve that confusion — at least for myself.  I ultimately drew the legal conclusion that the term embryo adoption isn’t really accurate because there isn’t a human being to adopt.  I could go into a lengthy analysis of how I came to that conclusion but your eyes would roll back in your head and you would probably start drooling from boredom.  So let’s just defer that analysis and argument for another day.  If you are interested, you can get a copy of the article on the web (click here).  I now happen to be a huge advocate for embryo donation.  I think it is a fabulous way to build a family.  However, these are musings for another blog.  But my article did provide some clarity to those medical facilities which are banking those frozen “leftover” embryos.

So here I have been sitting happy as a woman with a barren uterus could ever be, contemplating my holiday shopping safe and secure in my belief in, and advocacy of embryo donation.  And then I hear about this doctor in California who has a new kind of embryo bank.

Before I heard of this physician in California, I was aware of only one type of embryo bank; one where frozen “leftover” embryos are being made available for donation to infertile families.  These frozen embryos were the subject of my law review article.  This new embryo bank, however, does not contain any of these “leftover” frozen embryos.  This bank is comprised of embryos which were recently created using carefully selected donor eggs and donor sperm.  The donated eggs are fertilized with the donated sperm and the resulting embryos are frozen for future selection by hopeful intended parents.  Let’s stop briefly and note emphasis on the words “future selection”.  We will circle back to why this is relevant but I wanted to point out that these embryos are being created for future selection by wanna-be-moms and dads.

This physician has created his embryo bank in a manner to facilitate selection for all types of characteristics — everything from physical traits like blond hair and blue eyes to religious ethnicity.  Jewish embryos, who knew?  Actually, this could be fantastic for Jewish couples who need a single Jewish egg donor, and/or want to further ensure a connection with Judaism by having a genetic connection on the sperm side of life.  You have no idea how hard it can be to find a specific ethnic donor and this is something I gather this doctor has identified as a plus to his business model.  Speaking of business models, he also offers a money back guarantee.  You choose a batch of embryos to use to try and get pregnant.  If you don’t get pregnant the first time, you get two more tries using different batches of embryos.  If you don’t get pregnant, you get 100% of your money back (approx. $12,000).

Upon hearing of this embryo bank a part of me was disgusted and a part of me . . .  well I was excited.  Super excited. Especially about the money back guarantee.

The infertility patient part of me sees this as a great opportunity to get pregnant.  Frozen embryo transfers — while statistically less successful than fresh embryo transfers — can be lot easier to go through than an IVF cycle.  For me having the embryos created using donor gametes isn’t a big deal.  But if it were, I would be able to select an embryo based on whatever I might deem important.   So, yeah baby!  Let’s have another baby!  Give me this doctor’s number.  I am in!  Or perhaps it would be better to say the embryos are [going to be] in [me]!

But the legal scholar, academic, intellectual, lawyer part of my brain is sitting here vomiting and is pissed that I am putting these thoughts onto cyber-paper and making an argument in favor of this horrific new kind of embryo bank.  Stork Lawyer Reality check:  It is pretty much illegal to create embryos without first having identified intended parents as recipients for those embryos and from what I understand, there are no intended parents waiting for those embryos when this doctor is creating them.  The intended parents don’t enter the picture until the embryos are selected from the database and someone signs up with this program to undergo an embryo transfer procedure.  This is where that whole “future selection” comes in.

The laws regarding assisted reproduction essentially come down to intent to parent before conception: in a third party assisted reproductive arrangement there is supposed to be a contract or other document signed before the embryos are created, whereby intended parent(s) agree to be legally and morally responsible for the embryos and children that may result from the ART process.  In this case there is no such contract or preexisting intended parent.  The embryos subject of my law review article all had intended parents before the egg and sperm came together to create the now frozen “leftover” embryo.  But this new type of embryo banking lacks that component.  There are no intended parents choosing the eggs and the sperm with the immediate intent to parent.

And speaking of all those “leftover” embryos shouldn’t we first be dealing with and using all the existing cryopreserved embryos before we go about creating them? And what about the potential that this doctor may be creating even more “leftover” frozen embryos (what happens to those embryos that don’t get selected)?

Let’s not analyze whether this is baby selling.  I can’t, or won’t go there, although many others have.  Consanguinity, or the risk of an individual created through donor gametes marrying or having a child with a genetic sibling is another issue that has been raised.  The number of families that are created using any individual egg or sperm donor’s genetic material is a concern not to be overlooked or ignored.  These donors presumably are also donating through egg donation agencies, fertility clinics or sperm or egg banks.  We all have been astonished by stories of men who have discovered that they have fathered over a 100 children as a result of their donation to sperm banks — there is a significant risk that through this new type of embryo banking program not only will children have multiple full siblings running around but that egg and sperm donors have created half siblings through other programs.

Even more, if I understand this program correctly (and I am pretty sure I do) batches of embryos are being created which contain embryos which are full siblings to embryos which are contained in other or separate batches of embryos.  It sounds like  it is possible that three separate donations could take place using these three batches of embryos.  Okay, follow-me slowly here for a minute because this is a little bit like playing Twister.  In other words,  three batches of embryos each of which contain embryos which are full genetic siblings to embryos in other batches, could be donated to three different families thereby creating three separate families whose children are all full genetic siblings to each other!

Do the recipients of these embryos know how many full genetic siblings their child may have?  Are the donors aware?

It is supposedly almost impossible from a statistical standpoint for one of these children to marry its full sibling.  But when you add in the half siblings that could be created through other donation programs, and/or smaller ethnic groups for whom donation can be a challenge because of the limited number of donors available matching their ethnicity, doesn’t the risk become somewhat more than insignificant?  And even if it doesn’t, I worry that people don’t have enough information about how many genetic siblings are out there whether they are full or half siblings.

But I get it, I get why he did it.  Especially for someone with an ethnic background this type of program would be hugely popular and let’s not forget the money back guarantee.  We’re all broke after trying IVF multiple times, why the heck not take out a second mortgage if you know you will be able to pay it back if you don’t get pregnant?  Sounds pretty good doesn’t it?

I am at war with myself.  I want to go running to that clinic and pick out an embryo tomorrow.  And then my lawyer (self) tells me to stop and think about whether I want to participate in, and thereby endorse a practice which I believe, in my own legal opinion, is legally impermissible, and legally and medically unethical.  Is my desire to be a gestational mother stronger than my moral center?  Good question.

 

 

The views expressed in this blog are the views and opinions of this author and are not intended to provide or constitute legal advice or a statement of the laws as they may pertain third-party assisted reproduction within the United States.

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