Archive for the ‘Announcements’ Category

Surrogacy in New York. What you Need to Know Now!

February 2, 2021 | By:

UPDATE

February 2021

Part I

In just a couple of weeks compensated surrogacy will be legal in New York!

I don’t know if you heard, but The Child Parent Security Act (the “CPSA”) was passed by the New York legislature last year and signed into law by Governor Andrew Cuomo.  The CPSA goes into effect on February 15th, 2021 and it makes compensated surrogacy legal in New York!

For those of us who needed third-party assisted reproduction to build their families, and for those of us who practice assisted reproduction law, the CPSA marks an historic change in New York law.  The CPSA brings New York law with respect to third-party assisted reproduction into the 21st Century (along with literally almost every other state in our country).

Unfortunately, there is a lot of confusion among surrogacy agencies, IVF clinics, and even attorneys about the CPSA.  A lot of misinformation is being circulated about the CPSA and as a result it’s getting a bad rap.  I would like to take a few moments to clarify some stuff because I think a lot of people are being incorrectly advised against entering into a surrogacy arrangement in New York.  In fact, during a recent Continuing Legal Education Seminar I attended about the CPSA, a New York State Judge made a really great point about the benefits of the CPSA that reassured me about being able to protect my client’s rights under New York law.

The Judge said that, as compared to an adoption proceeding which seeks to establish a legal parent-child relationship where none exists, the CPSA confirms a legal parent-child relationship that already exists.  Take a moment and wrap your brain around that for a second.  New York just went from criminalizing compensated surrogacy to assuming that a properly arranged surrogacy arrangement that complies with the CPSA, presumes that the intended parents are the legal parents of the baby being carried by the gestational surrogate.  Wow!

If the parties to the surrogacy arrangement cross all their “t’s” and dot all their “i’s” and present a petition for parentage that shows that they are in “substantial compliance” with the CPSA, a judge in New York doesn’t have any purview or authority to do anything other than sign a Judgment of Parentage (even as early as the first trimester of a surrogate’s pregnancy! Although I personally wouldn’t advise my clients to file the petition until the second trimester of pregnancy because I am superstitious[1]).  As an attorney who is used to having to argue with judges over the legality of compassionate surrogacy and parental rights under New York law, and as an infertile woman who was forced to make decisions about how she was going to build her family because of the former prohibition against surrogacy in New York, this is music to my ears!  I can hear Frank Sinatra singing it now:

Start Spreading the News

I’m Leaving [for the clinic] Today

I Want to Be a Part of It

New York New York!

 

So, let’s take a dive into the CPSA and straighten-out some of the confusion!

One of the great features of the CPSA is that it contains the first ever “Surrogate Bill of Rights”.  The CPSA is the first statute in this country that codifies certain aspects of surrogacy arrangements and require that they be respected for the benefit and safety of gestational surrogates.  The Surrogate Bill of Rights is designed to ensure that surrogates in New York are not taken advantage of and are protected both physically, emotionally and financially.  I love the idea of the Surrogate Bill of Rights.  But I think it is the Surrogate Bill of Rights that might be confusing people and making them think New York remains a surrogacy unfriendly state.

Remember I said that the Surrogate Bill of Rights codifies certain aspects of surrogacy arrangements?  These aspects of surrogacy arrangements weren’t created for the first time in the CPSA.  Rather, the Surrogate Bill of Rights takes existing legal concepts that are addressed in almost all gestational surrogacy agreements, and instead of leaving it up to smart lawyers and surrogacy agencies to address these concepts in the gestational surrogacy agreement, the CPSA requires that we do it so nothing slips through the cracks.  While the Surrogate Bill of Rights is groundbreaking in terms of the fact that it is required by New York State law, the rights enumerated in it are nothing new or different to surrogacy or Assisted Reproductive Technology (ART) law.

The Surrogate Bill of Rights guarantees (among other things) that surrogates be provided independent legal counsel, medical and psychological counseling, life and health insurance, and the right to make decisions that affect her health and well-being.  As an experienced ART attorney, I can tell you there is nothing new about any of this.  I think one thing that may be concerning people unfamiliar with ART law is that under the Surrogate Bill of Rights, the surrogate has sole decision-making authority when it comes to her body and management of the pregnancy.  This type of decision-making authority sounds kind of frightening if you are an intended parent.[2]  However, it is important to note that this concept already is addressed in almost all gestational surrogacy agreements written in the United States.

I recently heard that a clinic is advising intended parents not to undergo surrogacy in New York because the CPSA gives the surrogate the right to terminate a pregnancy.  I am guessing this issue originates in part of the Surrogate Bill of Rights that addresses the surrogate’s right to make decisions about her healthcare.  I have news for you folks.  All surrogates have the exclusive right to choose to terminate a pregnancy or refuse to terminate a pregnancy.  United States Constitutional Law requires that a woman have the right to make this decision for herself and her body, even if she’s carrying someone else’s baby.  This is nothing new in ART law.

The Surrogate Bill of Rights just makes sure everyone addresses this in the gestational surrogacy agreement and that all parties to the surrogacy agreement understand that it is her body and she has the legal right to make medical decisions with respect to her body. When this is addressed and discussed up front in the gestational surrogacy agreement, problems later on during the surrogacy journey can be avoided.  The fact that the CPSA mandates that this be included in surrogacy contracts, is doing nothing other than that which best practices in ART law already embraces.  Again, nothing new here folks.

Other concerns have been raised about who can enter into a surrogacy arrangement in New York, and some people are upset that the CPSA has some arguably restrictive language about who can enter into a surrogacy arrangement in New York.  But let’s take a look at this for a moment before we decide that New York remains a surrogacy-unfriendly jurisdiction.  The CPSA requires that:

  • The Surrogate be at least 21 years of age and a lawful permanent resident of New York; and,
  • At least one intended parent must be a legal resident of the State of New York for at least 6 months prior to execution of the surrogacy agreement; and,
  • All parties to the surrogacy agreement must be United States Citizens or lawful residents of the United States.

Okay, yes, it is kind of a big bummer that internationally-based intended parents cannot enter into a surrogacy arrangement in New York absent one of them having a legal residence in New York and some form of lawful basis for residing in the United States and New York for at least six months (Visa anyone?).  At present surrogacy is limited to arrangements between lawful residents of the United States who have a legal residence in New York.

While that doesn’t necessarily negatively impact intended parents who reside in New York, it does impact New York surrogates who might like to carry a child for intended parents who live somewhere other than New York.  I have heard that people are being told that the CPSA only permits surrogacy arrangements between New York residents and prohibits all out-of-state residents from entering into a surrogacy arrangement with a New York surrogate under New York law.

Let me bust this myth open as well.

The CPSA does not prohibit a New York surrogate from carrying a baby for an out-of-state intended parents.  She absolutely can.  What might get a little complicated, however, is how parental rights are established in this type of situation.  Establishing parental rights in this scenario is not going to be as easy as the Judge described it in my CLE seminar, but it can be done.  If you have experienced ART attorneys in New York working with you (and one in the state in which the intended parents reside), the intended parents will be established as the legal parents of the baby the surrogate carried.  The CPSA does provide for the establishment of parental rights in surrogacy arrangements that do not “substantially” comply with the CPSA.

In our scenario with out-of-state intended parents working with New York surrogates, parentage will be established based on the intent of the parties at the time the surrogacy agreement is entered into and the best interests of the child.  These two standards, intent and best interests, are fundamental principles of ART law.  Indeed, there is ample case law (law made by judges as opposed to by statute) in New York and around the country that says the intent of the parties as expressed in a contract or other writing entered into prior to the time the child is conceived through third-party assisted reproduction, will be enforced.  Thus, if you enter into a gestational surrogacy agreement and clearly express everyone’s intent that the intended parents are the parents and that the surrogate and her spouse or partner don’t want to be the parents, then under New York law, the court must enforce the parties’ intent as expressed in the gestational surrogacy agreement and determine that the intended parents are the baby’s legal parents.  Assuming that the surrogate is not contesting parentage and there are no scary facts that would indicate the child would be unsafe[3] growing up with his/her parents, then the judge should issue a Judgment of Parentage notwithstanding the fact that the intended parents aren’t New York residents and the gestational surrogacy agreement is not in substantial compliance with the CPSA.

Quite honestly, establishing parental rights for out-of-state intended parents happens all the time in surrogacy arrangements.  It is really rare for all parties to a surrogacy arrangement to reside in the same state.  Sometimes that means it is a more complicated process to establish parental rights (as is the case here), but at the end of the day parental rights are established.  In ART law, everything is state specific.  In fact, sometimes it is not just state specific but county and judge specific within the state!  Despite the annoying residency provisions, at least the CPSA provides clear guidance on how you establish parental rights when there isn’t substantial compliance with the statute.  And that is a big step-up from those states in which you literally don’t know what you’re going to have to do in order to establish your parental rights until you know what judge has been assigned to your petition.  I will take my chances with out-of-state intended parents under the CPSA any day compared with the insecurity of not knowing how it’s all going to play out until you have a judge assigned in a specific court in a specific county (talk about nail biting)!

So, I hope we have busted a couple of big myths about the CPSA and this unfortunate and unfounded idea that surrogacy in New York is something to avoid.  There are other issues with the CPSA that I will address in Part II of this blog (like insurance, agency licensure, and escrow management) but for the moment I think we made some headway in redressing these horrible allegations about the CPSA and New York surrogacy law.

And for what it is worth, there is a group of New York attorneys, NYAAFF (New York Attorneys for Adoption and Family Formation), of which I am a member, who are working on a “clean-up” bill which seeks to resolve some of the concerns people have about the CPSA, like that pesky little residency requirement.  I have tremendous faith in NYAAFF (heck, the CPSA wouldn’t exist without some of its members!) and I am optimistic that the residency requirement will be modified at some point in the near future.[4]

But even if the CPSA stays exactly as it is today, we’ve come a long, long way.  This is truly an historic moment in New York.  Don’t be afraid of it.  Embrace it!

I’ll Make a Brand New Start in Old New York

If I Can Make it There

I’ll Make it Anywhere

It’s Up to You

New York New York

 

[1] No matter when you file the petition, the Judgment of Parentage doesn’t become effective until the moment of birth.

[2] For purposes of this blog, I frequently refer to intended parents in the plural, as in a couple (whether heterosexual or same-sex, married or unmarried).  Please note that the CPSA also provides for the establishment of parental rights for single parents, not just two-parent families.

[3] An examination of the “best interests” of the child looks to many aspects of parentage and the family situation, the prospective safety of the child is just one example cited for purposes of this blog.

[4] To be clear, the citizenship part of the residency requirement is not among the issues being discussed in the clean-up bill.

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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

EssentialHealthBenefits@cms.hhs.gov

For more information please read http://myemail.constantcontact.com/Infertility-Matters–Demanding-Essential-Benefit-Coverage.html?soid=1101342191383&aid=B44Urr44QiU

 

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Making an Egg Donation Cycle Work. A brief look at what you might need to know to increase your chances of success!

January 19, 2012 | By:

Through egg donation, 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 delivering their child into the world. The success rates offered by many egg donation programs are somewhat staggering, making this a very popular option in family building, especially for women dealing with the NOvary™.

Egg donation is often so successful that some can potentially build an 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 egg donor not only leads to the birth of a child, but will provide a family with extra embryos to freeze for future family building.

Such was the case for my former client Nancy. Her experience with egg donation provides a great example of the types of things someone considering using egg donation might want to take into account as they move forward on their journey to “Mama” (or “Dada”).  Nancy, at the time her journey into egg donation began, was in her early forties.  Like many women today, Nancy had waited to marry until she found the “right guy” and had established her career.  After graduating from law school, Nancy decided that she wanted to put off starting a family until she had paid off her student loans, and had made partner in her law firm.  She felt very strongly that it was important her career and financial life be stable before she became a mother.  When she was 35 she met Daniel, and after dating for a few years they married when she was 38.  Well aware of fertility landmines related to age, she and Daniel  had discussed her desire to become a mother before they got married and agreed to start trying for a baby immediately after the wedding (Nancy, just like me, hoped for a honeymoon baby!).  She was such a planner that before they got married Nancy went to her OB to see if she was facing any age-related infertility issues.  Much to her surprise and relief, after her OB examined her, Nancy found out that it seemed like all systems were good-to-go; she appeared to have a healthy body, good ovarian reserve, and nothing standing in the way of her becoming a mother.  Nancy’s OB recommended that the newlyweds try having unprotected sex for six months and if nothing happened to go see a reproductive endocrinologist (sounds like a good plan to me!).  However, after six months of unprotected intercourse, Nancy and Daniel had not gotten pregnant. Proactive Nancy immediately contacted the reproductive endocrinologist her OB recommended.

The RE Nancy and Daniel saw recommended that they try assisted-reproductive technologies.  Unfortunately after several failed IUI and IVF cycles, Nancy’s doctors told her that her best chances for becoming a mother were through egg donation or adoption.  Although there seemed to be no medical explanation for Nancy’s failure to conceive, their RE didn’t think further attempts using Nancy’s eggs made sense.  Despite her remarkably low FSH and good AMH results, her RE nevertheless attributed Nancy’s IVF failures to issues related to ovarian reserve and her age.  Ironically, after all her efforts to detect infertility, especially age-related infertility, Nancy discovered that she was dealing with the dreaded NOvary™.  (Just as side note, my definition of NOvary™ extends beyond ovaries that refuse to produce eggs because we are too old.  However, in this case Nancy’s confrontation with the NOvary™ did seem to be related to the fact that she was in her early forties and her ovaries were headed into retirement.)

The RE suggested they consider using an egg donor or adopting.

Nancy was at first — like all of us — somewhat devastated by this diagnosis.  She had done everything correctly, ate a healthy diet, exercised her entire life (in fact Nancy had almost become a professional dancer before going to college), she didn’t smoke, took yoga classes, and yet her body still seemed to be failing her.  After discussing the situation with Daniel, Nancy realized that she really, really wanted to experience pregnancy (I can relate to that!), and so they chose to first pursue egg donation.  N&D agreed that they would try egg donation one or two times and if they didn’t conceive a baby through egg donation, they would move on to adoption.

Nancy, however, was not prepared for the overwhelming information and advice she received once she had settled on using an egg donor.  People told her different things:  don’t use an agency, use an agency, don’t use an inexperienced donor, use an inexperienced donor.  Everything Nancy heard seemed to be conflicting and confusing.  Even worse was how overwhelmed she felt when she logged onto various egg donation agency’s databases.  How on earth could she ever select a donor out of the hundreds that seemed to be available?

Her gut reaction was to work with her RE’s “in-house” egg donor program as they would select the donor for her, thus ensuring that she had a fertile donor and, more importantly, Nancy wouldn’t feel she had to cull through profile after profile.  Nancy just wanted someone to make the decision for her so that she and Daniel could move past infertility and onto pregnancy!

After doing her research (if we haven’t already established it, I want to remind you that Nancy is quite the type A person and she is proud of it!  I can relate, as I too am rather Type A) Nancy, however, decided instead to work with an egg donation agency.  Although many “in-house” programs are flexible, Nancy felt that she had more options when working with an egg donation agency.  While Nancy felt that she was giving herself more legwork to locate her own donor and dealing with the accompanying stress, Nancy felt that by working with an agency she had greater flexibility in choosing her donor.  What had first seemed so attractive — having someone present her with an “egg donation goddess” (her words not mine) — in reality turned out to concern Nancy.  By relinquishing control to her RE and his staff, she lost the flexibility to request a donor who had an athletic background (not only a former dancer, both Nancy and Daniel are self-professed exercise junkies, and Daniel had played some serious basketball in college), or to use an egg donor who has an “artistic” personality (the dancing thing turned out to be really important).  She also seemed to have a harder time finding a college educated egg donor through her RE and in the end having a “smart” donor also turned out to be very important to both Nancy and Daniel.  Their RE’s in-house program would be able to provide them with a donor who already had been screened for fertility (a huge plus by many standards) and who physically resembled Nancy and Daniel (another huge plus for most people), but with the in-house program she couldn’t request an “athletic, artsy, super-smart” donor.  Using an egg donation agency gave her the freedom to be more selective than she initially thought she would need or want to be.

Nancy also didn’t have to share eggs with another infertile family which was a requirement at her particular RE’s in-house egg donation program (off topic for a moment:  shared egg donation cycles are a common effort by clinics to help reduce the cost of an egg donation cycle but being “required” to share a cycle isn’t common).  Nancy also realized that working more independently meant she would have greater control over their finances.

With a limited budget because they were also considering the possibility of adoption, most of the agencies she spoke with recommended that N&D select a donor who lived near the clinic she would be using, thus avoiding substantial travel expenses. Using an agency, Nancy also had a greater selection of donors with compensation rates to fit her budget, compared with the fixed rates offered by Nancy’s and many in-house egg donation programs.  By selecting a “local” donor with a lower compensation than that which her RE’s in-house program requested on behalf of its donors, Nancy was able to save a couple of thousand dollars and put it in what she called their “adoption bank.”  It did take more time finding that “artsy, athletic, super-smart donor” than she had anticipated but Nancy felt the time was worth it given that she didn’t think she would know “enough” about her egg donor’s background had she chosen the egg donor recommended by her RE.

One donor Nancy considered, I am going to call her Lucy, was twenty-seven years old, single, had been a dancer in high school and had attended a Seven Sister’s college (rock on to all women’s colleges!!).  Lucy had graduated at the top of her class and was attending graduate school in journalism (did I mention that Daniel is a news columnist?!). Despite Lucy’s outstanding academic credentials, which often result in a higher requested compensation, Lucy’s “requested comp”  (egg donor industry lingo) was on the low side.   Side Note:  The Society for Assisted Reproductive Technologies’ (SART) has guidelines that recommend egg donors receive between $4,OOO-$7,000 per donation.

With Lucy’s dancer’s background and desire to be a journalist like Daniel, Lucy seemed like the perfect donor.  Lucy, however, had no track record donating eggs.  With their tight budget and limited time factors — N&D were also concerned that if they waited much longer their age might preclude them from working with certain adoption programs and they very much wanted to preserve this as a family-building option — Nancy and Daniel instead decided to match with ”Lauren.”  While Lauren also was twenty-seven and had attended college where she played soccer, Lauren had a three year old daughter and had conducted one prior egg donation cycle that had produced a lot of eggs.  Although they didn’t know whether that egg donation cycle resulted in a live birth, Lauren was clearly fertile and was likely to respond well to medication.  To Nancy and Daniel, this made her a better candidate.

Both Lauren and Lucy were requesting $5,000 as compensation for their cycle and lived relatively close to Nancy’s and Daniel’s clinic (no overnight travel was involved).

Once N&D selected Lauren as their donor, the egg donation agency presented them with a list of attorneys to help prepare their egg donation agreement, and it arranged for Lauren to be represented by an attorney as well.  I am working on a blog on egg donation agreements and why you MUST have one so I am not going to go into it in depth here.  I actually had already met with N&D before they got the list of attorneys from the egg donation agency (and my name was NOT on it grrrr), but I did help them prepare their anonymous egg donation agreement with the woman we are calling Lauren.

Once the egg donation agreement was signed, their egg donation cycle got underway. Lauren didn’t produce as many eggs as N&D had hoped; Lauren “only” produced eleven eggs but all eleven fertilized (Side Note: 100% fert rates are not something you should expect, it doesn’t always happen that all of a donor’s eggs will fertilize.  Nancy and Daniel got lucky). Nancy conceived twins from the first embryo transfer (now that is something you should expect and should discuss with your RE if you don’t feel prepared to parent two at once).  After watching the remaining pre-embryos which were not transferred to Nancy’s uterus, the clinic froze five blastocysts.  Off topic again: Nancy’s RE performed a day-3 pre-embryo transfer which, for reasons that exceed the scope of this blog, I am at a loss to explain.  Despite Nancy’s disappointment with the number of eggs retrieved, I would have thought the clinic would have done a day-5 or blastocyst transfer??

Nancy and Daniel are very happy and currently are considering whether or not to use their frozen pre-embryos.

If you have any thoughts or comments to add about your experience, please feel free to share them.  This blog is designed to help people achieve success in egg donation and if there’s something you think might help someone, go for it!

p.s. I don’t know whether any of this sounded familiar to you, but I did think that Nancy’s and Daniel’s decision-making process and the issues they faced, particularly those Nancy faced, were typical and helpful enough that I wanted to share them.  Nancy and Daniel’s story is discussed in much greater detail in my next book if you want to learn more about what they went through when finding their donor and negotiating their egg donation agreement.  More details about pub date to follow (I am under an editorial deadline which is a good thing because it means this thing will finally be finished!!!  I’ve only been working on the book for three years.  Enuf is enuf!).

 

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