Archive for the ‘In the News’ Category
June 16, 2015 | By: Liz
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.
March 16, 2015 | By: Liz
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
February 3, 2014 | By: Liz
I promised a more human blog on this new case from Brooklyn. Here goes:
By now most people are aware of the groundbreaking, landmark decision in the case of United States v. Windsor, a case which determined that same-sex marriages must be recognized under federal law, thereby overturning part of the Defense of Marriage Act (DOMA), and leading to the passage of many state laws embracing same sex marriage or otherwise altering state’s views on same-sex marriage. One important fact about Windsor that many people have overlooked is that Windsor did not apply to section 2 of DOMA, which permits states to ignore or fail to recognize same-sex marriages performed in other states. Thus while the Federal Government must now recognize the marriage of two men or two women in the State of New York, Windsor did nothing to change the rights of other states to ignore same-sex marriages entered into in New York. Insofar as a state could ignore or choose not to recognize such a marriage, that state also could choose not to recognize the legitimacy of children born during the course of that marriage.
Because Section 2 of DOMA remains good law, attorneys typically recommend to their clients who are same-sex families that the non-genetic or non-gestational parent should enter into a second-parent adoption in order to ensure that his/her parental rights are recognized in hostile states (states that don’t like same-sex marriages). The hypothetical I typically provide to my clients upon discussing whether and to what extent they might deem it appropriate to take the additional step of entering into a second-parent adoption to secure their parental rights in other states, is one involving a medical crisis. And because I used to be a drama major (and perhaps still am in many respects), I have created a lovely little soap-opera-like legal hypothetical to help make my point: Let’s say that Jane and Jan, who are married under the laws of the State of New York, have a child, Jack, who is genetically related to Jane. Jane also is Jack’s birth or gestational mother, but Jan has no genetic or gestational connection to Jack. Jan is Jack’s mother because –like all couples who have a child together — she intended to conceive him with Jane, and was married to Jane when Jack was born. Because NY law is so favorable to same-sex couples, both Jane and Jan are listed on baby Jack’s birth certificate. New York basically says that it doesn’t matter what your sexual orientation is, if you are married at the time a child is born, both married partners have equal rights to the child born during the marriage, and both parents names shall be placed on that child’s birth certificate. This is wonderful law and I am proud to be a New Yorker because of its stance with respect to marriage equality. However, just because NY lets Jane and Jan put Jan’s, the non-genetic parent’s, name on baby Jack’s birth certificate, doesn’t necessarily protect Jan in a state which doesn’t respect marriage equality. In my horrific hypothetical soap opera-like drama, I ask Jane and Jan to consider what happens to them if they get into a car accident in a state that is unfriendly to same-sex marriage.
Imagine that Jane is on life support and unable to communicate, and little Jack is critically injured and needs surgery (hey I said I am the queen of drama). The hospital however, refuses to recognize Jan as Jack’s parent, refuses to recognize Jane’s and Jan’s marriage, and Jan is in a time-sensitive situation in which she needs to make a medical decision to save her son’s life but is being precluded from so doing because the state in which this accident took place doesn’t recognize any aspect of Jan’s relationship to Jack or Jane. This sadly isn’t me being melodramatic, this is a reality that Jane and Jan could be facing. But let’s let this little soap opera sit for a moment and get back to my discussion of DOMA, Windsor, and this recent case decided in Surrogate’s Court located in King’s County (Brooklyn), New York, which case on the one hand reinforces the beauty of the laws of the State of New York but simultaneously sets legal precedent protecting same-sex marriages on its head. Many attorneys are deeply concerned about the ramifications of this case should it not be overturned on appeal or otherwise reversed.
As noted, notwithstanding Windsor, Section 2 of DOMA is still valid law, and permits states to refuse to recognize same-sex parental rights even where a parent’s name is listed on a child’s birth certificate. Thus, up until this new case from the Brooklyn Surrogate’s Court, in light of Section 2 of DOMA and the variety of state laws as they apply to same-sex marriages, most attorneys (including yours truly) would have advised Jan to enter into a second-parent adoption and obtain a court order or other judgment establishing her to be Jack’s legal parent. Under the Full Faith and Credit provision of the United State’s Constitution, that “Order of Adoption” must be recognized everywhere and Jan could use that Order to ensure she has the ability to make that medical decision for little Jack in our soap opera. The second-parent adoption proceeding and the recognition afforded to that Order of Adoption gives Jan and our little soap opera a happy ending (assuming everyone recovers from the horrific hypothetical car accident).
However, this recent decision from the court in Brooklyn, In the Matter of Seb C-M (NYLJ 1202640083455, Surr. Ct. King’s County Jan. 6, 2014), recently held that a woman in Jan’s position is precluded from entering into that second-parent adoption because her name already is on Jack’s birth certificate and she was married to Jack’s birth/biological mother at the time he was born. Under New York law, says this Judge, Jan is Jack’s mom and there is no need for Jan to take any steps to ensure that her rights as Jack’s mother are recognized in other jurisdictions, even those that don’t recognize same-sex marriage. This opinion thus denies Jan, and women and men in Jan’s position, the ability to obtain the one document that most legal practitioners feel would protect Jan’s ability to exercise parental rights in our nightmare soap opera hypothetical. You guessed it, an Order of Adoption stemming from a second-parent adoption.
Why did the Judge decide this? Well in part because she’s right. Under New York law, Jan is Jack’s parent and no further steps are needed in New York for her rights as a parent to be recognized. Marriage decrees and birth certificates are enough under the eyes and laws of the State of New York that nothing more need be done to enforce the rights of this family. They are a family. Period. Nothing more need be said. Valid marriage + valid birth certificate = family regardless of your sexual orientation. That is, in and of itself, a wonderful statement and recognition of how far New York has come in recognizing marriage equality and the rights of same-sex parents. However, as well-intended as this Judge was, and while her legal argument is correct with respect to the laws of the State of New York, the decision totally ignores the impact of Section 2 of DOMA, and ignores well-settled case law regarding the Full Faith and Credit provision mentioned above. In holding that Jan cannot enter in a second-parent adoption because she already is legally a mother, the decision potentially eviscerates Jan’s parental rights and those of other same-sex parents when they are outside the borders of New York. While I applaud this Judge for upholding the laws of the State of New York, it is somewhat arrogant to assume the laws of New York are so superior to the laws of other states that, in the face of a well-recognized danger presented by disparity in laws as they apply to marriage equality throughout the United States, and the enforceability of a federal statute that expressly permits states to reject Jane and Jan as a married couple, New York law will always protect this couple and their child. The laws of the State of New York do not protect this family everywhere they may travel.
For the Judge in Seb C-M, a compelling fact in denying the second-parent adoption was that Jan already was on Jack’s birth certificate (keeping it simple by keeping the characters in our melodrama consistent, the people in the case of course have different names). The Judge seemed to feel the birth certificate and presumptions surrounding birth certificates are sufficiently strong to carry Jan safely into other jurisdictions. This is a legal argument called “portability”. Indeed, there is a relatively significant body of law that addresses the “portability” of birth certificates with respect to same-sex marriages.
In re Sebastian, 25 Misc.3d 567, 572 (Surr. Ct. N.Y. County 2009), is another case that explores the rights of same-sex parents who are married, have a child, and wish to protect the non-genetic or non-gestational parent’s rights in jurisdictions which do not recognize same-sex marriage. Indeed, Sebastian sets forth a detailed analysis of the “portability” of birth certificates and of Jane’s and Jan’s rights as parents. The Court in Sebastian ultimately concluded that in order to protect someone like Jan, she would need to enter into a second-parent adoption as that is the only type of legal/court document that would have to be recognized in states which don’t recognize same-sex marriage. Sebastian provided the necessary protection to same-sex couples which the court in Seb C-M has just taken away.
“[A]s the child of a married couple, Sebastian already has a recognized and protected child/parent relationship with both [Jane and Jan], arguably making adoption unnecessary and impermissibly duplicative. . . Unfortunately, while this is the case in New York, the same recognition and protection of [Jan]’s parental rights does not currently exist in the rest of this country, or in most other nations in the world. For this reason, the parties argue that only an order of adoption would ensure the portability of Sebastian’s parentage, and further ensure that the federal government and other states would recognize [Jan] as Sebastian’s legal parent. Sebastian at page 573.
The Court in Seb C-M, however, felt that the presumptions afforded birth certificates are some of the “strongest and most persuasive [presumptions] known to the law.” Seb C-M at page 2. However, just because New York recognizes this presumption in favor of same sex marriages, does not mandate that presumption also be recognized in other jurisdictions. Indeed, Sebastian is clear that the laws of other states do not need to recognize that presumption: In a detailed analysis, the Court in Sebastian noted that “[a] birth certificate is . . . only prima facie evidence of parentage . . . and does not, in and of itself, confer parental rights that must be recognized elsewhere. Accordingly, although the parties here may obtain a . . . birth certificate by virtue of their marriage, that birth certificate alone, without some judicial determination of [Jan]’s parentage would provide insufficient protection of [Jan]’s parental rights.” Sebastian at page 576 (emphasis added). The Court in Sebastian further explained that, under Section 2 of DOMA, a marriage contracted in New York does not need to be recognized in another state, and the legal rights flowing from that marriage, and the presumptions of parenthood from birth certificates may be ignored as well.
If this is our world, how then do same-sex couples protect their parental rights outside of New York? The Court in Sebastian was clear that “A holding by this court that [Jan] is already a legal parent . . . in this state may therefore offer insufficient protection in other states . . . just as DOMA itself precludes [recognition] based on marital status to same sex couples. Thus . . . adoption is the sole means by which their parent/child relationship and the ‘rights and obligations incident thereto’ can be fully protected.” Sebastian at pages 575-76 (emphasis added).
“[t]he parties’ argument for an adoption here is based on their desire to have a determination of parentage that will be recognized everywhere, as opposed to one that other jurisdictions may be free to disregard. Although there is no Supreme Court decision on point, federal courts that have considered the issue have held that a judicial order of adoption in one state must be afforded full faith and credit in every other state, and that there can be no “public policy” exception to that mandatory recognition . . . .”
Sebastian at page 584.
The Court in Sebastian concluded that although Sebastian’s genetic mother had other potential legal avenues to establish her parental rights — avenues which are now firmly established in New York and form the foundation of the decision in Seb C-M, only an Order of Adoption would provide protection to a same-sex family outside of New York due to its entitlement to full faith and credit. Sebastian at page 587.
“And, although it is also true that an adoption should be unnecessary because Sebastian was born to parents whose marriage is legally recognized in [New York], the best interests of this child require a judgment that will ensure recognition of both [Jane] and [Jan] as his legal parents throughout the entire United States.”
Sebastian at page 587.
So we are now left with the decision in Seb C-M which has denied a parent the right to establish her relationship with her child in a manner that will be protected outside the borders of New York. This decision is at odds with the well-reasoned opinion set forth in Sebastian, which decision remains consistent with the principles and issues still presented by Section 2 of DOMA. The Judge in Seb C-M was not unsympathetic to the plight of our friend Jan, and recognized that she left Jan at risk of facing a situation where her parental rights might not be recognized. The Judge felt, however, that those rights should be addressed in the jurisdiction that denies the rights (see footnote 2 of the opinion). Rather than upholding the protective approach as set forth in Sebastian, In the Matter of Seb C-M, leaves Jan to fight with a judge over Jan’s constitutional rights and marriage equality in a jurisdiction which is inherently hostile to her and her family; and she has left Jan to do this in a potentially time-sensitive situation as that set forth in our soap opera drama of a hypothetical.
While New York has come a long way in recognition of same-sex relationships and In the Matter of Seb C-M is a recognition of those advancements, the decision leaves same-sex couples at risk in other jurisdictions. New York’s laws are (unfortunately) not superior to those of other states, certainly not when there is a statute like DOMA which allows another state to deny the rights New York provides to the LGBT community. While I applaud this decision in its recognition of New York’s stance on same-sex marriage and recognition of same-sex families, it presents a potentially disastrous outcome by denying protections currently recognized under New York law, which protections are recognized and enforceable in other jurisdictions.
The Judge In the Matter of Seb C-M strives to make the rights of same-sex couples more enforceable, however, the ultimate outcome of the decision is to deny protections to same-sex families which are enforceable in places other than the State of New York. Is it not better to have a family that can be protected and recognized throughout the United States as provided by In re Sebastian, rather than one which can only be recognized within the State of New York as provided in In the Matter of Seb C-M? And more importantly, if Sebastian is authoritative case law, insofar as In the Matter of Seb C-M, contradicts Sebastian on so many points, is the decision In the Matter of Seb C-M not wrong as a matter of law?
Filed under: adoption, Birth Certificates, Check This Out, In the News, infertility in the media, Parentage Orders, Personal Musings, Same Sex Parenting and Reproductive Law, Thinking Out Loud, Third-Party Assisted Reproduction