Archive for January, 2012

Infertility Treatment and Insurance — Speak Up While You Can!

January 30, 2012 | By:

There is an important deadline tomorrow:

Public commentary (from you!!) is needed to demand that infertility treatment coverage be included as an essential benefit under the Affordable Care Act (ACA).  To include your voice and make sure your concerns and needs are addressed contact the Department of Health and Human Services before January 31st, 2012.

The decision to include infertility treatment as a covered essential benefit falls solely in the hands of Kathleen Sebelius, US Secretary of Health and Human Services.  You can email her at

For more information please read–Demanding-Essential-Benefit-Coverage.html?soid=1101342191383&aid=B44Urr44QiU


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Sentencing of attorneys who plead guilty to baby selling. Is it Enough?

January 27, 2012 | By:

I have been following the cases against my former colleagues Theresa Erickson and Hilary Neiman for some time.  I had known for awhile about the investigation but was still stunned when the plea agreements became available to the public and I began discussing the details with colleagues and officials in the Justice Department.  I know stuff like this probably happens more often than any of us care to admit.  It always has and it always will.  What is that expression about there always being thieves and crooks among us??

But my blog today — which is very different than that which I typically post — has more to do with whether the penalty fit the crime than whether what transpired under the direction of TE and with the assistance of HN was right or wrong, or for that matter my level of shock and horror at all of it.  I had at one point read something on the internet that suggested that HN had been sentenced, or was going to be sentenced to 13 years in prison.  I remember discussing the article I read with the women in my office.  I asked them whether they thought 13 years were too few or too many.  It turns out there was no factual basis to the article I was reading, as HN will be serving less than a year in a federal penitentiary and additional time under house arrest.  That is quite a difference from 13 years wouldn’t you say?

I had never made a decision myself about whether 13 years was “just” punishment for the crimes alleged and to which she plead guilty.  Some part of me felt that it wasn’t enough time and some part of me felt it was too much time.  So I let it go, as I was more intrigued by the fact that there were still matters under investigation.

But I have no doubt when I say that less than a year in “Club Fed” is not enough time.  As the Judge Battaglia pointed out (for more see an article in the ), HN doesn’t even appear to understand that what she has done was wrong.  Under the circumstances, then doesn’t it make sense to give someone slightly harsher a penalty to help them internalize that which they have done?  Club Fed is rumored not to be such a bad place.  If I recall, Martha Stewart enjoyed learning how to knit while she served her time.  Given that we are talking about the intentional creation and sale of human life, do we really want to send a message to society that less than a year in jail is sufficient punishment for such atrocious conduct?  I recognize that Judge Battaglia was restricted by sentencing guidelines, but even so, he still had the ability to provide for a more severe consequence for this crime.  House arrest is pretty much of a joke isn’t it?  There are days that actually sounds like a pretty sweet deal if you ask me.  I suppose taking the option out of it may make it different.  It is one thing to imagine what its like and another thing to actually live with an ankle bracelet every day.  Query, if you have a pool in your backyard, are you allowed to sunbathe next to it?  Or is that a violation of house arrest? Let’s be clear, however, we can make brownies, watch TV, read books, surf Face Book, and shop on the internet while under house arrest, things we cannot do at Club Fed.

I am not sure, and will most certainly be giving this more thought, but my gut reaction is that I really think this punishment didn’t fit the crime.  As we await the sentencing of the co-conspirators, I am really curious to see if this notion of minimum and maximum sentences, house arrest, and the reality that people like me (albeit me 11 years ago) — desperate to have a child, unknowing (even as an attorney) of the true bounds of the law with respect to things like surrogacy and egg donation — were intentionally preyed upon.  Babies were intentionally created to be sold to people like me.  It’s gross and inhuman.  And I object to the fact that the people who perpetrated these acts get to make brownies in the comfort of their own home, surf Face Book, and shop on Amazon, and perhaps even luxuriate by the pool in their backyard (seriously, is that okay with the ankle bracelet?  Martha was allowed to garden wasn’t she??).  Isn’t house arrest pretty much the same thing as sending your child to their room for a “time out”?

So I am going to make a pledge to devote more of my time to educating people so they don’t fall prey to schemes like these.  And while I do so, I hope that somewhere a fair justice system will prevail in what remains of these cases.


These are the personal thoughts and opinions of this author.

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What you want to know about surrogacy in New York and why you want to know it!

January 25, 2012 | By:

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.




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