Archive for the ‘Current Affairs’ Category
The Top Ten Things Reproductive Lawyers Can Help You With
February 10, 2016 | By: Elizabeth
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:
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
Tags: birth certificates, birth orders, Egg Donation, embryo donation, infertility laws, parentage orders, sperm donation, Surrogacy
Embryos, IVF and Divorce. What You Need to Think About Before Your IVF Cycle Starts.
June 16, 2015 | By: Elizabeth
Frozen embryos have been in the news quite a bit recently. There is the Sofia Vergara/Nick Loeb embryo battle. I don’t think anyone could have missed the media coverage on that story. Then there is a case in Illinois involving embryos created before a woman, Karla, underwent chemo therapy and which embryos represent her last chance to have a genetic child. The man, Jacob, who agreed to help her create the embryos (and allowed his sperm to be used for purposes of fertilizing her eggs) no longer wants her to use the embryos to have a genetic child. This case also is getting a lot of media attention. And there are a host of other cases which have not been talked about in the media but which are winding their way through the court system. There is a lot to learn from these cases and a lot to think about. And I mean think about NOW, before your IVF cycle starts, and cerainly before you break-up, separate, or get divorced. I know none of us want to think about unpleasant things when we are trying to get pregnant, but this is one of those times when advance planning might be a better idea than telling yourself something like this would never happen to you. Assisted Reproductive Technology (ART) is a lot to deal with no matter what but, as in most cases, ignoring this issue is likely to make things worse, not better.
I remember that when I was presented with consent forms at my IVF Clinic, and I tried to read and digest what the forms meant, the last thing I cared about was what would happen to my embryos at some random point in the future. I ignored issues that I found unpleasant. If it didn’t involve a potential positive pregnancy test, my head went deep into the sand. However, as I did more and more cycles, I started to care more about my responses on the forms. To be honest, it was really only because I became more concerned about what would be happening to “my” embryos under various circumstances which did not involve my uterus. As I became more familiar with the process of ART and IVF and more invested in the outcome, I started to think of the embryos less in the abstract; the embryos became more a part of me and thus I became more invested in how they might be “used”, other than to get me pregnant. But never in a million years did I think about what would happen to frozen embryos if my DH and I got divorced. For that matter, none of the health professionals at my clinic discussed issues regarding the disposition of these embryos in the event we got divorced. Perhaps this issue wasn’t on the radar way back in the dark ages of infertility treatment (when I did my IVF cycles), but it is on the radar now and people are definitely fighting over who can use the embryos after they separate or get divorced.
In retrospect — and hindsight really is 20/20 — I know that if I had separated or divorced with frozen embryos that I would have fought to the proverbial death to be able to use those embryos, regardless of what anyone else might have thought or felt about the embryos. So I get why people fight over this. And as a lawyer helping people understand the legal issues involved in assisted reproduction, one of my jobs is to educate people about what can happen if they later disagree about the who, when and where of embryo disposition.
The cases which have been litigated and those which are winding their way through the court system, unfortunately are inconsistent in their decisions. That is, some courts enforce consent forms, some enforce oral agreements, some enforce the rights of the person who doesn’t want the embryos used, and some courts might be said to have enforced the rights of the embryo (IF embryos can be said to have rights, and I am not going down THAT path in THIS blog). So what can we do? We can read those consent forms for one thing. We also can discuss this issue with our partners.
Reproductive law has one common theme, it looks to the parties’ intent at the time ART is used to create an embryo to decide who is supposed to be a parent, and under what circumstances the embryos can be used by those parents if they are no longer in a relationship. If a court is going to be looking for evidence of our intent about whether we can use a frozen embryo against the wishes of our partner after we break-up, then it behooves us to figure out what that intent is. Sadly most of us do not have the financial resources to fight a battle like Sofia Vergara’s. But in our minds and hearts, we all have as much at stake as do Karla and Jacob in the Illinois case. And while all of us might want a baby now, Sofia Vergara and Jacob (just to name two) provide ample evidence that what “all of us” want now may not be what we “all” want in the future.
Filed under: Current Affairs, Embryo Disposition, Embryos, Frozen Embryos, In the News, infertility in the media, Infertility on Television, IVF
Tags: embryo battles, embryo disposition, frozen embryos, sofia vergara
Sherri Shepherd’s Surrogacy Battle and the View from the Other Side.
March 16, 2015 | By: Elizabeth
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.
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
Tags: divorce, Egg Donation, intent, lawsuit, parental rights, Surrogacy, third-party assisted reproduction
