Posts Tagged ‘Parentage’
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
May 13, 2010 | By: Liz | Filed under: Egg Donation,Thoughts on Choosing an Egg Donor
As I get closer to finishing my E-Book on egg donation, I seem to have more and more clients asking me some of the essential nuts and bolts questions about egg donation. It is urging me to write faster and get the first of the three book series finished. In the meantime, I have taken an old article I wrote for the then Hartford Chapter of RESOLVE on egg donation, and modified it for this blog post.
Here’s How One Woman Made Egg Donation Work:
Through the gift(s) provided by an egg donor, many infertile women are now able to experience pregnancy; sharing their thoughts, feelings, blood supply and the sound of their voice with their baby; and to deliver their child into the world. The success rates offered by many egg donation programs are staggering (nearing the 70% mark at most clinics), making this one of the more popular options in modern family building for women with diminished ovarian reserve or other issues of egg quality.
Egg donation is often so successful that you can potentially build your entire family from one egg donation cycle. Of course not every egg donation results in a pregnancy; but more often than not a carefully selected donor not only gets the recipient mother pregnant but there are extra embryos frozen for future family building.
Let us consider Janet[1], and her experience with egg donation. Janet is in her late thirties and after several failed IVF cycles, Janet’s doctors told her that her best chances for becoming a mother were through egg donation or adoption. Janet wanted to experience pregnancy, and so chose to pursue egg donation.
After doing research, Janet decided to work with an egg donation agency, rather than using her clinic’s in-house program. While some clinics are very flexible, Janet found she had more options when using an egg donation agency. By working with an agency Janet had greater flexibility in choosing her donor, didn’t have to share eggs with another infertile family, and would have greater control over her finances. Because she was on a tight budget, most of the agencies she spoke with encouraged Janet to select a donor who lived near the clinic she would be using, thus avoiding substantial travel expenses. Using an agency, Janet also had a greater selection of donors with compensation rates to fit her budget, compared with the fixed rates offered by most clinics.
One donor Janet considered (we’ll call her Leslie[2]), was twenty-six years old, single, had near perfect SAT scores, attended an Ivy League college, graduated at the top of her class and was attending medical school. Despite Leslie’s outstanding academic credentials (which sometimes result in higher compensation rates) Leslie’s requested compensation was within the middle range of both ASRM’s and the Society for Assisted Reproductive Technologies’ (SART)[3] guidelines for egg donor compensation: $3,000-$7,000 per donation. Leslie also visibly resembled Janet and lived near their fertility clinic thus helping to make the cycle more affordable for Janet and her partner. Leslie seemed like the perfect donor.
Leslie, however, had no “track record” donating eggs. She had never been an egg donor before and didn’t have any children of her own. Although statistically, carefully screened first-time (or “unproven”) donors have the same success rates in helping infertile women/couples achieve pregnancy, Janet was concerned that she would spend money to have Leslie donor undergo the first part of the necessary screening process, only to find out that Leslie was not sufficiently fertile and had been disqualified from being an egg donor.
Janet and her partner were also considering matching with a donor named “Julie”. Julie also was twenty-six, had high SAT scores, had attended college, and had never been an egg donor before. Julie was requesting the same compensation as had Leslie ($5,000) and lived near Janet’s clinic. However, Julie was married, and had two-and-half-year old twins and a one-year old baby. Julie was clearly fertile (she had children) and thus would be more likely to produce healthy eggs, which to Janet and her partner meant she presented a lower risk of being “screened out” by their fertility clinic.
Once Janet and her partner selected Julie as their donor, Janet’s egg donation agency presented them with a list of attorneys to help prepare their egg donation agreement, and it arranged for Julie to be represented by separate counsel in connection with the negotiation and drafting of their agreement. The egg donation agreement is a critical aspect of the egg donation process and all parties should be represented by independent counsel. The egg donation agreement will protect your rights as parents and govern your relationship with your donor for years to come. You should have the right to select your own attorney, one who is an experienced reproductive lawyer.
Each egg donation agreement is unique; some agreements provide for complete disclosure of names and addresses and others are completely anonymous. Whatever your comfort level or that of your donor may be regarding future contact, please consider that your agreement should ensure that you can contact your donor in case of a future medical emergency. Among other things, your egg donation agreement should specify your rights to utilize and/or dispose of the eggs/embryos created from the cycle, require that your donor follow medical directions, address what happens if your donor breaches your agreement or if the cycle needs to be rescheduled for some reason (like a death in the donor’s family), and/or how medical bills are handled if she experiences a complication like ovarian hyper-stimulation.
Within four months of the time Janet initially contacted their egg donation agency, Janet, Julie and their respective partners had negotiated their agreement and their cycle got underway. Julie produced seventeen eggs of which fifteen fertilized. Janet conceived a beautiful baby girl on the first embryo transfer and when Janet’s daughter was about a year-old, Janet and her partner went back and did a frozen embryo transfer; this time conceiving twin girls (it is admittedly rare for a frozen cycle to result in a twin pregnancy but in this case it did)!
[1] Janet is a combination of several of my clients, a fictitious character created for purposes of this blog to help demonstrate a typical egg donation process from a more “real life” perspective.
[2] Names have been changed to protect people’s privacy.
[3] ASRM (The American Society for Reproductive Medicine) and SART are related organizations which, among other things, establish ethical and regulatory guidelines that many clinics and agencies agree to comply with. For more information, visit their websites: #www.ASRM.org# and #www.sart.org#
Tags: biological clock, choosing an egg donor, Donor Compensation, Egg Donation, egg donation agreement, egg donation cycle, Finances, infertility, IVF, Parentage, reproductive attorney, reproductive lawyer
April 16, 2009 | By: Liz | Filed under: Current Affairs,Financing Fertility Treament or Adoption,Questions about the Office
As Tax Day comes and goes and so many people are struggling both with infertility and paying bills, and praying that tax refunds will help pay for treatment or adoption expenses, we’ve been asking, what can we do to help?
Well, we’ve decided to extend a little economic stimulus package of our own! The Stork Lawyer Economic Stimulus Plan of 2009 is designed to make all legal services for family building more affordable for everyone!
First, we’d like to remind you that we offer a free egg donation contract per fiscal quarter to qualifying individuals and families. To make this even more meaningful, we are changing the criteria for applicants to make it easier to qualify for a free contract. Although our website has not yet been updated, we urge anyone who would like to apply for a free egg donation contract due to their difficulty in paying the expenses associated with their egg donation cycle to submit an application. We will send them the criteria by email (until it is posted on our website), and we will consider all applications submitted regardless of whether they strictly meet our criteria.
Second, we are offering a 15% discount on our legal services for egg donation and gestational carrier arrangements to all new clients. Our normal fees have been slashed! For the next fiscal quarter and perhaps even longer, our new rates will reflect an across the board reduction of 15%.
Third, for clients who retain us during the second fiscal quarter of 2009, we are offering flat fee billing arrangements on all parentage orders, and on most of our adoption services. By establishing flat fee billing arrangements we hope to reduce people’s worry regarding how much their legal fees will be to adopt domestically and/or to establish their genetic relationship with their child conceived through third party assisted reproductive arrangements.
If you have any questions or require specific information for yourself or even your friends, please do not hesitate to contact me and I would be happy to speak with you about making your family building more affordable. You can reach me by email at Liz@StorkLawyer.com
Please check our website frequently as we will be providing specific details regarding:
The Stork Lawyer Economic Stimulus Plan of 2009!
Thank you,
Elizabeth Swire Falker, Esq.
p.s. Nothing in this blog shall be deemed to create an attorney-client relationship and we may not be able to provide legal counsel and advice to all persons who contact the office in response to this blog post due to ethical restrictions imposed upon the office. However, please do not hesitate to contact us with questions or to see if we can assist you.
Tags: adoption, Economy, Egg Donation, Finances, Parentage
