Posts Tagged ‘gestational carrier’
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
January 7, 2009 | By: Liz | Filed under: I'm Just Another Angry Infertile Woman
I have been thinking a lot about my Angry Infertile Woman thing. Someone recently suggested to me that it wasn’t very professional. I don’t care. I am a very good lawyer and I am also a human being who is and always will be infertile. I want more children and I face obstacles both physical and financial to that goal. My clients don’t hear me rant about being angry about how infertility is treated in the news media and in Hollywood (unless they mention it). This is my only outlet and forum for letting people know when I think something is whacked. My clients get what they pay me for, good legal advice and a soft shoulder to cry on if they need it (no extra charge for that service either). Right now I need to vent.
I think that the news media and Hollywood do NOT understand infertility or adoption at ALL (this thought is discussed in a separate post)! And I am sick to death of all these Hollywood actresses who get pregnant with twins in their forties (or even late thirties) and are NOT honest about how they conceived those children. Remember I was proud of Brooke Shields not too long ago (by the way, did VW pull those advertisements? I haven’t seen them in a while. Has anyone seen one??) because she was honest that she went through IVF.
I have a list the length of my arm of actresses that I either have reason to know or have reason to be suspicious (deeply suspicious) that they used some form of assisted reproduction. Let’s take Jennifer Lopez as an example. I don’t know her, never represented her, I don’t know her from a hole in the wall. She is, however, someone I admire. But I don’t believe for a nano-second that she conceived her twins miraculously from old fashioned intercourse after three years of TTC on her own. That is BS. Just the way People Magazine spun those babies’ delivery, with quotes from the doctor about how much the babies’ look like Marc Anthony as they were being pulled from Jennifer’s uterus during a C-Section, raised my eyebrows. It was like they were setting the stage for people to expect the babies NOT to look like Jennifer. It struck me as such an odd comment. Three years of TTC, then pregnant with twins who look amazingly like their father but are never compared to their mother’s absolutely gorgeous face: Who wants to bet she used an egg donor??? Or at the very least went through IVF? Again, I have no personal knowledge, these are just my suspicions. But this wonderful singer and actress who is a phenomenal role model, well doesn’t she owe women in their twenties and thirties some honesty? That waiting to get pregnant makes it harder to get pregnant. That maybe she needed help beyond that provided by something divine (and you know I believe in the Divine).
Let’s consider the statistics. I deal with them every day with my clients. I face them when I consider having more children in my mid-forties. It is statistically, if not virtually impossible to conceive twins (even using IVF) at or above the age of 44 using your own gametes (eggs). It is extraordinarily hard (although possible) to conceive twins using your own eggs at age 40. You would likely need IVF to do have twins at age 40. I’m not saying it’s not possible to conceive twins at age 40 the old-fashioned way; it’s just not really something that happens very often. Certainly not as often as it seems to happen when you live in Hollywood. And it is very hard when you’re even say Jennifer Aniston’s age, she’s 38 or 39 right? (and btw, Jennifer is my favorite actress in Hollywood and I see many reports in the media that she may be trying to have a baby, I LOVE her and would love to see her become a mother - not to mention the fact that her mother is responsible for me being with my husband today, so I have some additional fondness for her family. And No, I DO NOT KNOW Jennifer Aniston and I haven’t seen or spoken to her mother since 1988, so nothing in this blog should be construed as validating any tabloid report).
Statistically, at least some of (if not the majority of) these actresses used some form of ART to get pregnant. So, let’s assume for purposes of this blog that they did conceive, especially those with twins, with the assistance of ART. Now let’s assume they also were honest about that fact . . . what’s the downside?
My point is this: Maybe the knowledge that so many public figures struggle to conceive children and that it is just plain harder to conceive a child after age 35, would HELP someone! Hollywood seems to be on the “helping others” bandwagon. Angelina Jolie (okay bad example in a rant on infertility, although she is an adoptive mother) travels to war torn countries to bring attention to them. Brad Pitt raises awareness and helps Katrina victims. Who do we have in Hollywood standing up for the fight against infertility and explaining it being honest about it? It’s a devastating disease. RESOLVE has a spokesperson who is a former playboy model. I believe she used a gestational carrier. I don’t know about you, but I don’t think one person is enough. Is it enough for just Angelina Jolie to be travelling to Africa, of course not. The more media attention focused on an issue, the more stars involved, the more awareness is raised. I was thinking about this issue while listening to a Christmas song, We Are The World (is that the title?). Half of the world’s most famous recording artists came together to raise money and awareness for AIDS and AIDS victims in Africa. That song is being played every five minutes on the radio every Holiday Season twenty years after it was recorded. Why does infertility get such little attention?
So let’s just say that Hollywood actresses were honest? What would happen? Maybe, eventually, people would start paying attention to their reproductive health? Maybe they wouldn’t wait as long to have children? (I am not advocating rushing to have children before you’re ready, I just don’t think enough people understand that it really and truly gets harder the older you get and the first big age landmine is 35). Or maybe fewer people would feel alone or ashamed. If Hollywood actresses are ashamed to admit to their infertility then isn’t that sending the message that infertility is something to be ashamed of?
Let’s assume for a moment that some of these women sought the generous services of an egg donor, as I suspect they did. I understand that is private information and the intimate details of their personal life. They may even have an anonymity provision in their agreement with their egg donor (again, assuming they used one). But don’t they have to rise to some higher moral authority because of their status as celebrities? How many women are misled everyday because they see these gorgeous women in their forties giving birth to TWINS! At least Marcia Cross admitted she used IVF (although I do wonder if she really hit the genetic jack pot or whether she used a donor, alas I will never know).
Please people. Do a service to the young women in this country who have no clue what it means to WAIT to conceive a baby. Our ovaries do not join us on the treadmill nor do they benefit from Botox. Not to mention the fact that everyone in Hollywood can easily afford IVF and egg donors and gestational carriers when the rest of us are worried about our mortgage payments. Let’s be real.
I want some honesty out there. I want someone to come clean. Alexis Stewart (Martha Stewart’s daughter) is spending millions of dollars trying to raise awareness about what happens when you wait to conceive a baby. While I don’t agree that egg banking is a medically recommended procedure for every Jane Doe, I agree with her message. And I think that if women in Hollywood would just be honest, that maybe Alexis wouldn’t have to spend so much money and I wouldn’t be so pissed off everytime I see some 40-something starlet showing off her babies in People Magazine. I don’t know about you, but I’d like to see a little honesty in those baby announcements in People Magazine.
to be continued . . . .
Tags: adoption, egg donor, gestational carrier, hollywood
