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Archive for the ‘Financing Fertility Treament or Adoption’ Category

Workin’ 9-5 With an Escrow Agent

July 8, 2020 | By:

My good friends at Private Label Surrogacy recently asked me to help educate their prospective clients and gestational carriers about escrow agents.  What is it that escrow agents do and why is it important? 

Trust me that you don’t really want me to tell you the specific ins and outs of my day at Stork Escrow unless you want to fall asleep from boredom in the next few minutes.  My life as an escrow agent “workin’ 9-5, what a way to make a livin’” (as Dolly sings it), is not the subject of this blog, nor should it be the subject of any blog because “it’s enough to drive you crazy if you let it”. 

Fortunately for those reading this blog, it turns out the question was more general than asking about the specifics of what I do while I’m ‘waitin’ for the day my ship’ll come in.”  Among other questions (which I will address in another part of this blog series), my friends at PLS wanted to know what the difference is between fund managers and escrow agents and when and why you need to hire one of us. 

Well then, let me discuss “my service and devotion” . . . .

Nomenclature aside, escrow agents and fund managers are (or should be) the same thing: people or companies who are responsible for holding and distributing the money needed for surrogacy and egg donation arrangements.  We exist to protect the people and the money involved in these third-party assisted reproduction arrangements. 

In fact, I opened Stork Escrow with my partner Kelly DuMont to do just that: we “poured ourselves a cup of ambition” to protect the people involved in surrogacy and egg donation arrangements from financial harm.  Kelly and I both had experience managing escrow accounts for third-party assisted reproduction and we had both heard some really sad stories of people losing their life savings from surrogacy and family building scams where money was stolen from the intended parents and the surrogate by people at the agency involved in the surrogacy arrangement.  Kelly and I decided to work together to try and find a better way to protect people from getting hurt financially while they worked to build their dream family. 

How escrow agents or fund managers achieve this goal—safeguarding the money and protecting people from getting hurt financially—is achieved in different ways and it’s sometimes dependent on state law.  To some extent, where your surrogacy is going to take place may dictate some of the terms of your escrow arrangements.

California’s surrogacy statute, for example, has provisions pertaining to who can hold the funds and in what type of an account.  If a licensed and bonded escrow agent is not used, California requires that funds be held in an “attorney trust account”.  There are different types of attorney trust accounts that can be used but the bottom line is that these accounts are only available to attorneys and hold the attorneys to very high standards regarding the management of the funds.  In contrast, some states require that independent or third-party escrow agents hold the money but don’t specify the type of bank account in which the funds must be held. 

New York just passed new surrogacy legislation, the Child Parent Security Act (CPSA) which goes into effect in February of 2021.  The CPSA requires that any party to a surrogacy arrangement deposit the money needed for the surrogacy with an independent escrow agent.  New York feels that an independent third party provides necessary separation from the parties interested in the financial transactions involved in a surrogacy arrangement in order to protect everyone involved.  In this context, the funds must be held by someone who has no relationship to the agency or to the people involved in the surrogacy arrangement. 

Using an independent escrow agent prevents self-interest from interfering in the management of the money needed for the surrogacy journey.  You don’t want it to be all “takin’ and no givin’” like that scam I mentioned.  You want to know that no one is going to be taking your money except to give it to someone who legally is entitled to have it. 

And that is really the answer.  If you want to know what an escrow agent or fund manager is, what we’re supposed to do, and why we exist, that’s your reason:  We are here to protect the money that the intended parents need to deposit to cover the surrogacy or egg donation expenses and we make sure it gets paid to the surrogate or egg donor in accordance with the terms of their respective contract.  Call us whatever you want, escrow agent or fund manager, at the end of the day regardless of our name or title, our job is the same: to protect the financial interests of the parties to a gestational surrogacy or egg donation arrangement. 

Third party assisted reproduction is a “rich man’s game, no matter what they call it”, and you may be using your life savings to make your family a reality.  You want to know that you are not putting your money into “another man’s wallet”.  

Why do you need an escrow agent or fund manager?  “Well you’ve got dreams [s]he’ll never take away.”

Up next:

Do all escrow providers offer the same fund security?  What are the different types of accounts used to hold funds and does it matter what type you use?  What are the most important questions to ask your surrogacy agency about escrow fund management?

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I Have A Bee in My Bonnet About Egg Banking

August 2, 2016 | By:

I really shouldn’t be here right now.  But there is too much laundry, too many emails, and too many dishes to attend to not to choose to procrastinate right now and get some stuff off my mind.  I have had several conversations Today (yes this one specific day on which I am writing) with people entering into “fresh” egg donation cycles and who have debated using or tried using an egg bank.  And when I say “fresh” egg donation cycle I mean that they are using an egg donor who will donate all her eggs from one IVF egg donation cycle to the intended parent(s).  They have chosen not to use an egg bank.  One couple tried using a known donor, then went the egg banking route and are now almost broke and using an egg donation agency and a (wait for it) “fresh” donor.  One intended parent was convinced by her IVF Clinic not to waste money on an egg bank and instead choose to use a “fresh” (as in not frozen egg) donor.  The others weighed the pros and cons on their own.  I also have had the opportunity to discuss it with owners of egg donation agencies (of which, arguably, I am one) and an IVF physician who thinks egg banking and selling eggs is the next best thing to Viagra and sliced bread.

While I recognize the benefit egg banking has for women undergoing medical treatment which may render them infertile or otherwise potentially impair their fertility, or for those who choose to bank their own eggs for their own future efforts at conception, I am NOT a fan of egg banking.  So extreme has become my position on this matter than I am working with colleagues on a professional article on the risks women and intended parents are facing by not being properly informed about egg banking.

I get the appeal egg banking presents.  It’s faster and easier than using a fresh donor, and very much like the sperm bank experience in terms of selection, anonymity and being one more step removed from the genetic progenitors giving your child life.  For some people, I suppose, an egg bank makes alot of sense.  But for me, it’s a waste of time and money, risks the future of your family in ways that an egg donation agreement with a fresh donor can provide you (and the donor) protection, and potentially runs afoul of the public policy of most states, insofar as most egg banks provide “x” number of eggs for a set fee and then if you need extra eggs you can “buy” them for “x-thousand” of dollars per egg.  Has anyone other than me reviewed the documents egg banks present to consumers and comment on the fact that it is illegal to sell genetic material?  And hey, what about the fact that when you have to buy those extra eggs . . . had you used a fresh donor, you might have received the same number of eggs, or more, for an almost equal cost (my client who went through a known donation, an egg bank and is now using an agency would argue the agency was cheaper from the get-go) and without having purchased human tissue (you know human tissue, like a kidney?)??

And what of the success rates?  I have yet to see consistent data coming from within my industry that tells me that frozen eggs result in the same number of live births as result from using a fresh egg donor.  Egg banks certainly don’t seem to offer the possibility of having frozen embryos from which you might conceive a full genetic sibling.  Fresh donor cycles often result in leftover cryopreserved embryos which can be used to conceive additional children.  It doesn’t happen for everyone, but it happens for many.

I think the technology is promising.  But unless you need to preserve your fertility, I don’t think it is all that it is cracked up to be.  And who wants to buy a cracked egg anyway?

I don’t have a lot of time tonight, the dishes smell and the laundry is over-flowing out of three laundry baskets, but I wanted to start this dialogue.  I am so sad for my clients who have wasted time, energy, and money not getting pregnant using egg banks.

In the immortal words of Linda Richmond (from SNL) Talk Amongst Yourselves . . . and let me know your thoughts. . . .

 

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From Starbucks to Craigslist Sperm Donors Hit the Help Wanted’s

January 8, 2013 | By:

The perils of known sperm donation are reasonably well known.  For those who read this blog you know all about my concerns about the Starbucks’ Sperm Donors.  Alas now sperm donors are hitting Craigslist and probably other help wanted sections in newspapers and magazines.  The same issues I discussed with those gentlemen engaging in a little afternoon delight in the bathroom at Starbucks and delivering their sperm donation to the recipient waiting outside the door also apply to those gentlemen responding to any other help wanted ad.   As recent publicity surrounding a gentleman in Kansas reveal, even those with the best of intentions who attempt to protect themselves legally may still be deemed a daddy when all they wanted was to do a good deed.  Indeed, William Marotta, our Craigslist donor du jour, has acknowledged that “no good deed goes unpunished”.

For those of you unfamiliar with the case (and I cannot imagine there are many of you who don’t know about it, because news of this case managed to reach me under the rock inside the cave in which I dwell), a little over three years ago Mr. Marotta responded to a posting online in Craigslist by which Angela Bauer and her then-partner, Jennifer Schreiner, were looking for a sperm donor to help them conceive a child.  I have yet to learn all the gory details (that cave is pretty deep and news is slow to filter under the rock) but I gather that William, Angela and Jennifer entered into a written contract pursuant to which William, with the permission of his wife, agreed to donate sperm to Angela and Jennifer.  William declined to accept any money in exchange for his donation.  As purportedly stated in the contract — and let me be clear that I have not read the contract — William specifically stated that he had no intent to be a parent of the child, or have any involvement in its life whatsoever.  Angela and Jennifer were to be deemed the legal and natural parents of any child conceived from William’s sperm donation.  Angela and Jennifer also specifically agreed to assume all financial responsibility for the child and to hold William “harmless” from any claims against him for child support or other financial assistance for the child.  In short, the contract stated that William was never to have any financial responsibility for any child born as a result of his sperm donation.  (Just to make my life easier as I type, lets call Angela and Jennifer the “Moms”).

My devoted blog followers all know by now that the laws surrounding third-party assisted reproduction largely revolve around people’s intent at the time they conceive a child.  Even with the existence of a statute governing third-party assisted reproduction, it is prudent to explicitly state that intent in a legal contract between the parties to any third-party assisted reproductive arrangement such as that entered into between William and the Moms.  Cudos to William and the Moms for having the foresight to sign a contract stating that none of them had any intent for William to be “dad” and that the Moms would hold William harmless from any claims for financial support for the child.  That “hold harmless” provision is further evidence of their desire and intent to have complete and sole responsibility for financial matters pertaining the the child.  One major problem, however, is that (according to an NBC report), it appears that the contract they used to ensure that William wouldn’t have parental rights, was found on the internet.  I am not sure that William and the Moms had legal counsel as part of this process.

My devoted blog followers and/or anyone who has called my office with a contract they found on the internet and wish to have me review in connection with their plans to build their family, know that I feel that contracts found on the internet are nasty little buggers that get everyone into more trouble than they avoid, and I won’t touch one. Putting aside copyright violations (btw, when we reproductive lawyers draft these contracts we retain a copyright in them so any time someone uses one of them they are — in addition to risking their family status — violating federal copyright laws), template contracts found on the internet simply are not specific enough to address the nuances of reproductive law.  Case in point, William and the Moms.

My devoted blog followers and/or clients also know how anal I am and that I make sure that when drafting a contract of this nature — typically called a Known Sperm Donation Agreement — any applicable state statutes are mentioned in the contract.  I also like to mention the terms of the statute and make sure that everyone is following the proverbial letter of the law.  This is where we run into some problems as Kansas has a statute governing sperm donation, and William and the Moms didn’t follow the letter of the law. Regardless of where and how William and the Moms found this contract, they didn’t address a provision in Kansas’s statute on artificial insemination which provides that the parties to the sperm donation must have a licensed physician perform the insemination in order for the sperm donor to avoid having parental rights.

I have never fully understood why these statutes (and New York has one) require a physician to do the insemination.  I suppose it could be because when these statutes initially were drafted, home insemination kits weren’t available and legislators wanted to dissuade people from having the sperm donor personally inseminate the intended mother, especially if the intended mother is married to a man other than the sperm donor.  Anyone remember the scene in The Big Chill where Kevin Kline’s character gets down and dirty and does the deed with one of his and his wife’s best friends, played by Mary Kay Place, in order to help Mary Kay Place’s character conceive a child??  I suppose the whole infidelity thing combined with the desire to drive revenue to physicians led legislators to the notion that only a doctor should perform an artificial insemination.  But times have changed and now you can find a home insemination kit on the internet.  The primary demographic to which the home insemination kits are marketed are lesbian couples, just like the Mom’s at issue in the Kansas case which we are discussing.

Why are home insemination kits so popular you might be asking?  Well, for those of you fortunate enough to have all the working parts necessary to conceive a child without assistance from fertility doctors, being gay does not meet the definition of infertility and the insurance requirements necessary to obtain coverage for artificial insemination.  LGBT families have something called “social infertility.”  Whether or not you like or agree with the term “social infertility”, due to their sexual orientation, the Moms were/are infertile insofar as they lack the healthy sperm necessary to fertilize their eggs.  The Moms needed a sperm donor and it happens to be that cryopreserved or frozen sperm isn’t that cheap, and the processes involved in an “artificial insemination” (or to correct and update the terminology an “Intra Uterine Insemination” or “IUI”) ain’t cheap either.  Without insurance coverage, the average IUI cycle can cost a coupla thousand to even a few thousand dollars.  Enter the home insemination kit which costs under $50 including shipping and an otherwise healthy socially infertile woman has access to technology that will enable her to conceive albeit without the missing sperm.  As we’ve discussed, Craigslist, Starbucks, and online forums have become common ways for women like the Moms to locate sperm without the cost of using frozen semen.  Added in is the benefit of being able to meet your sperm donor and be able to provide your child with some background regarding one of his or her progenitors.  Times certainly have changed and the law, certainly in Kansas, has not kept pace.

Speaking of times-a-changing, the “child” to whom William contributed his genetic material is now a three year old little girl and the Mom’s have since separated.  Due to an illness, one of the Mom’s had to apply for state financial aid and Kansas got a little nosy and demanded that the Moms reveal William’s identity before it would provide any financial aid.  Upon learning of the situation and William’s identity, the Kansas Department for Children and Families decided to go after William for $6,000 in child support together with imposing an ongoing obligation to provide support.  William can’t afford any of this and justifiably is fighting Kansas’s claim.

The whole thing is wrong and is a glaring example of good intentions gone awry, lack of education and awareness of reproductive laws as they pertain to things like sperm donation, the failure of state legislatures to keep pace with societal changes, and the frickin’ frackin’ fiscal cliff.  I understand that Kansas is broke but I would much prefer that it spend state resident’s tax money going after all the “dead-beat dads” who are intentionally leaving their children to starve.  Dads who intended to father a child — and who may well have conceived that child or children through a physician-assisted artificial insemination or other third-party assisted reproductive technologies — and then post-divorce abandoned their financial obligations to that child or children. Why are we going after a man who never intended to be a father and did his best to help women who did want to be mothers? Especially when the mothers want to be financially responsible for their child but due to medical circumstances beyond their control cannot cover all of the costs associated with child-rearing and are forced to seek financial assistance from the state.  Financial assistance, I might add, to which a single mother who knows nothing about her child’s biological father would be entitled.

So here we are with a legal battle being fought by good people with good intentions but who made a mistake.  I understand Kansas has a right to seek child support from a genetic parent, but in this instance, that genetic parent should be standing in the shoes of an anonymous sperm donor.  But for the fact that the Moms didn’t use a doctor when they conceived this child, William wouldn’t be in this mess.  To many people it seems like an awfully unjust and harsh response by Kansas.  Sadly for the Moms they don’t live in a state which might have permitted one of them to adopt the child in order to assure both parents full parental rights, or which otherwise recognizes same sex relationships such that both of the Moms could be listed on the child’s birth certificate and further be considered the legal and natural child of the Moms’ relationship.  Steps which would not only have protected their parental rights in a same sex relationship but would have protected William from this mess.  If both of the Moms were recognized here there wouldn’t be a need to find William.  Sadly Kansas is not an LGBT friendly state.  Combine that with the facts of this case and many people wonder if the Moms aren’t being singled out as a result of their sexual orientation.

Would the single mom to whom I just referred, who doesn’t know details about her child’s father, be similarly pushed into identifying him in order to be entitled to financial assistance from the state?  Somehow I don’t think so.  Somehow I think that a single mom would have gotten the financial aid more easily than this now single Mom who conceived her child while in a same-sex relationship.  Is that which is taking place in the State of Kansas a violation of the Moms’ rights under the Equal Protection Clause of the United States Constitution or otherwise discriminating against them?  One could certainly make the case (and hopefully someone is making the case) that but for the fact that they were involved in a same sex relationship at the time this child was conceived, and but for the fact that they didn’t have the financial resources to be able to access affordable infertility services that they might not be in this predicament.

As for William, he is the poster man for someone doing a good thing but not crossing all of his “t’s” and dotting all of his “i’s”.  Had he known about the requirement that the Moms must use a physician to perform the insemination and/or insisted that they use a physician before he would consent to the donation, he might not be where he is today.

But that doesn’t make what Kansas is doing okay or even justified.  I’d really much prefer they go after some of the dead-beat dads out there who owe the mother of their children a heck of a lot more money than is at issue in this case.  Seriously folks, let’s get our priority’s straight.

Let’s go after legitimate law breakers before we go after good people who made a technical error.  So what if the doctor didn’t pull the plunger on the syringe?  Give me a break.

 

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