Archive for the ‘In the News’ Category
When Judge’s get it wrong when endeavoring to make it right. Second-parent adoption proceedings in New York after U.S. v. Windsor and In the Matter of Seb C-M.
January 31, 2014 | By: Liz
Disclaimer: The following blog post is of a rather technical nature insofar as it is an analysis of recent legal decisions impacting second-parent adoptions and the rights of same-sex parents in New York State. While I will strive to make legal quotes as easy to read as possible (I will not be following strict legal citation formatting) it has occurred to me that some people might like me to translate this blog into plain English. Accordingly, once this post is up I will create a second post which strips this blog down into simpler, more understandable terms for those people who didn’t make the mistake of going to law school and having their brains completely and utterly corrupted. So, if you understand the following blog, more power to you but if you don’t (I’m not sure I do and I wrote it), fear not, I will post a follow-up written from that part of my brain that speaks to human beings and not lawyers. 😉 I also apologize for the length of this blog. This wasn’t an easy argument to lay out and perhaps a blog isn’t the best means of getting my thoughts “out there” . . . but I needed to reason through this new case and I needed to do it in a public forum because I am concerned about the ramifications of this decision.
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 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 — although lawyers took note — 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. Even in the tremendous wake of Windsor, as nothing changed on this point — recognition of same-sex marriages in states unfriendly to principles of marriage equality — lawyers did not alter the advice they offered to clients who are in same-sex marriages especially with respect to those issues related to recognition of their rights as parents. At least I didn’t change my recommendations and last time I checked I still had that dubious distinction of being a lawyer and one who practices in the field of third-party assisted reproduction and adoption law.
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 if they get into a car accident 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 a 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. And 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, a decision which has marked a rapid and wonderful shift toward recognition of marriage equality, Section 2 of DOMA is still valid law (and likely to remain so due to issues related to federalism, a concept which far exceeds the scope of this blog), 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. This is true in our little soap opera, and a state could rely on this provision of DOMA to refuse to recognize Jan’s parental rights. 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 — even in the face of section 2 of DOMA — 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.
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 and recognizing that Jan is a parent from day-one regardless of the fact that she has no genetic connection to Jack, and regardless of the fact that she is in a same-sex marriage, 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 is sufficient in all circumstances to protect this couple and their child. Simply said, the laws of the State of New York do not protect this family everywhere they may travel and second-parent adoptions have historically been identified as a means by which a parent in a same-sex marriage can protect and enforce their parent-child relationship outside of the State of New York.
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 as codified in New York statutes and set forth in case law, 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. To quote another groundbreaking case from New York, In re Sebastian, a case which pre-dates Seb C-M, the Judge in Seb C-M, ironically like other judges before her, “apparently was not concerned with issues of portability.” In re Sebastian, 25 Misc.3d 567, 572 (Surr. Ct. N.Y. County 2009)(citations omitted).
Sebastian is another case that explores in detail the rights of same-sex parents who are married, have a child, and wish to protect the non-genetic 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 indeed, 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. Here is what the Court said in Sebastian (in Sebastian, Mona stands in the same shoes as does Jan in our soap opera, and Ingrid is Jane):
“[A]s the child of a married couple, Sebastian already has a recognized and protected child/parent relationship with both Ingrid and Mona, arguably making adoption unnecessary and impermissibly duplicative. . . Unfortunately, while this is the case in New York, the same recognition and protection of Mona’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 Mona as Sebastian’s legal parent.”
Sebastian at page 573.
Analyzing DOMA and presumptions of parenthood afforded by birth certificates and thus their portability among states, the Court in Sebastian further noted that:
“[A] marriage validly contracted in another state need not be accorded recognition if that marriage runs afoul of the forum state’s public policy. Currently there are explicit prohibitions against same-sex marriages in [many] states . . . these clear legislative statements of public policy would appear to permit courts of those states to deny recognition of same-sex marriages contracted elsewhere, and, arguably, also to legal rights flowing from those marriages, including presumptive parenthood. . . . Such a position is supported by DOMA, a 1996 Congressional enactment that . . . appears to allow the states to deny recognition of same-sex marriages validly contracted elsewhere. . . . A holding by this court that Mona 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).
Another of the arguments on which the Court in Seb C-M relied in denying the second parent adoption is the strong presumption of parenthood New York laws afford to a child born during a marriage as reflected on a birth certificate. The Court cited this as one 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: According to Sebastian:
“[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 Mona’s parentage would provide insufficient protection of Mona’s parental rights.”
Sebastian at page 576 (emphasis added).
If the New York birth certificate potentially is insufficient to recognize or enforce Jan’s parental rights, what is she to do in order to ensure her relationship to little Jack is protected in our soap opera, or in the event Jane and Jan were to move? Sebastian addressed this concern noting that:
“[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 Ingrid and Mona 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, that fails to make her child’s birth certificate “portable” and her legal parent-child relationship firmly established in the eyes of the law throughout the United States. 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. In the Matter of Seb C-M applies a misinterpretation of the decision in Windsor (or seemingly fails to acknowledge that Section 2 of Doma was not overturned), and fails to recognize the significant limitations that remain embodied in Section 2 of DOMA relative to the existing framework of the rights of same-sex parents. Even more, the Judge’s statement in Seb C-M that any state which fails to recognize same-sex marriages and families is equally likely to deny full faith and credit to adoption decrees from New York, overlooks the detailed analysis of these issues as set forth in Sebastian and an existing body of enforceable case law regarding the application of Full Faith and Credit to Orders of Adoption.
The question is whether these misinterpretations and overlooked or misapplied body of case law will result in an appeal of the decision in Seb C-M? In endeavoring to recognize the advancements of the rights of same-sex parents in New York, this case has fallen short of protecting those rights, especially in light of the provisions of DOMA which remain intact even after the Windsor decision. While the Judge In the Matter of Seb C-M strives to make the rights of same-sex couples more enforceable, the ultimate outcome of the decision is to deny protections to same-sex families which ensure they 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?
This blog represents the opinions of the author and are not intended to provide legal advice.
Filed under: adoption, Current Affairs, In the News, Sam Sex Parenting and Reproductive Law, Same Sex Parenting and Reproductive Law, Third-Party Assisted Reproduction, Uncategorized
Tags: adoption
Halle Berry Battles the NOvary: Pregnancy Defies the Odds of Fertility
April 17, 2013 | By: Liz
So Halle Berry is pregnant at age 46. She’s approximately my age. Jealous much? You betcha! You all know I want another baby. It’s hardly a secret; certainly not from my kids, my dear husband (DH), most of my friends, and Dr. C. I have become somewhat preoccupied with the notion of being pregnant at such an advanced age — my BFF from High School and my BFF from College both think I am absolutely, completely and utterly insane to want to bear a child at this age. [btw, I have a college reunion coming up, whadya wanna bet that many of my classmates have just started down the path toward parenthood and have little ones?! I am taking bets!]
But clearly, if judging from no other demographic than my client base, I am far from alone at wanting a baby in my mid-forties. I was somewhat surprised but quite happy when I heard that ASRM just increased the recommended age limit — cutoff — for women undergoing ART procedures to something like age 55. While I am not sure my own mojo is going to keep me going for another 10 years, I am delighted that ASRM is now recognizing and giving an opportunity to all those healthy women who are in a deadlock battle with the NOvary because they decided they wanted a seat on the New York Stock Exchange before they wanted a seat next to a breast pump. And these days those goals can and do become mutually exclusive. Sheryl Sandberg aside — who managed to pop out her babies in her mid-late 30’s, and no doubt did her research about declining fertility before making an educated decision to have her children while she still had a decent chance at doing so using her own eggs — most women who truly want and love their careers, or who truly want to find the right partner, wind up face to face with their biological clock, otherwise known as the NOvary.
The NOvary, to remind you, is the ovary that says NO! I am not going to give you a healthy egg. My days as a functional ovary have ended. Didn’t you read the memo I sent you (and Sheryl Sandberg) when you were 35 and I was starting to explore ads for condo’s in Miami? I am the NOvary, I am in control of your egg quality and egg quantity and good luck trying to have a baby without my cooperation!
But thanks to egg donation and now expanded age limits by ASRM, those of us with career aspirations or who haven’t quite found the perfect partner have been given a reprieve, a few more years in which to squeeze in our baby-making, and laugh at or otherwise stare the NOvary down.
The funny thing was, as I sat down to tackle today’s blog I wasn’t sure whether I was going to write about choosing an egg donor and some recent hullabaloo over ads for egg donors that were posted at MIT, or whether I was going to explore the whole notion of whether someone can or should be deemed too old to become pregnant. As I perused all my research on age and egg donation, and age and parenting, I stumbled across an article from TheBostonChannel.com which I had printed out in February of 2012. “How Old is Too Old To Have A Baby? Older Celebrity Moms Blurring the Biological Lines.” Half way through the first page of the article I read the following:
“Since 1980, the number of women giving birth after age 35 had tripled, and after 40, guadrupled, as more women climb the career ladder and take longer to find ‘Mr Right.’ In the media, we are bombarded by images of glamorous, 40-something celebrity moms like Halle Berry . . . who make it all look easy.”
BINGO, topic decided. Clearly Halle and I have something in common and something of which I wish to speak. But before I do, I want to be clear and say that I have no personal knowledge of whether Halle used any kind of assisted reproduction to conceive her baby (despite the myriad comments on facebook from my colleagues — all of whom stop just short of stating she used an egg donor to avoid risking a lawsuit), but I do find it interesting that an article and quote from a prominent fertility doctor written a little over a year ago would mention Halle Berry as an example of celebrities who are blurring the lines between what can be achieved the old fashioned way, without medical technology. You do the mental computations on this one. Coincidence, or did that doctor know something and Halle’s hiding something?
For what it’s worth, I do have more than one personal friend who conceived on their own in their mid-late 40’s such that I do believe it is possible that Halle could have conceived without assistance, coincidences raised by the aforementioned article aside. But Halle is my blog inspiration for today because she is blurring the lines and that pisses me off.
The reality is that for most of us mid-forty-aged women, we will need an egg donor to conceive a child. The NOvary has hit her stride by the time we have hit 40 — let alone 45 — and she ain’t gonna budge from her beautiful condo in Boca no matter how much we beg and plead. As I have been working on my egg donation book recently, it has taken on a new meaning as I often find I am writing not just to a group of women whom I typically represent in my legal practice, but I am writing to myself and for myself. I also am finding my new book enriched by my own efforts to justify my decision to bring another life into the world at this age, and gaining a better understanding of how and where to conceive this new life. For example, I recently was astonished to learn that by the time a woman reaches age 40, her chances of conceiving using her own egg in any given month declines another 2-5% per MONTH. The NOvary is powerful and while one day I am sure science will find a way to stop her, right now my age alone pretty much guarantees that I need an egg donor. And Halle and I are in the same age demographic whether or not she hit the genetic jackpot and managed to defeat the NOvary by some major miracle which did not involve donated eggs.
But that’s the point! Halle is blurring the lines especially for anyone who isn’t ready to face the reality of our rapidly declining fertility in our forties. I have reconciled myself to the fact that my peak fertility has long since passed and I acknowledge that I share the same spot in the waiting room at the fertility clinic — or should I say egg donation agency — as all the Sheryl Sandberg wanna-be’s and all the women who hold seats on the NYSE, or who have finally found their mate. I doubt that most of my contemporaries, however, even those who know and understand what I do for a living, truly understand just how high the odds are stacked against us. Indeed, at a recent dinner with a fertility doctor I sought to learn more about the advantages of egg banking — or more precisely the decision to freeze one’s eggs to be used later in life when a woman is ready, willing, and able to have a baby on her terms. The doctor explained to me that far too many women are coming to him to freeze their eggs in their late thirties or even early forties — an age at which he often won’t even discuss permitting them to freeze their eggs. What he was trying to tell me, and he is by far not the first fertility professional to tell me is this: women are thinking of using egg freezing to buy themselves more time but are coming to the fertility clinic when their eggs already have passed their expiration dates and when the NOvary has taken up residence in Boca. The women who wish to take time before becoming a parent and who should be freezing their eggs are at a minimum ten years younger than the ones seeking out this new “stop-the-NOvary” technology. And Halle’s miracle conception isn’t helping doctors explain to all the women asking to freeze their eggs at age 35, 39, and most especially at age 41 that it’s probably too late; its certainly too late to spend thousands of dollars freezing crappy quality eggs! Just because ASRM says we can continue to try getting pregnant using medical technology when we are 46, 49 or 51, does NOT mean that medical technology will involve the use of our own eggs. Just because Halle got pregnant at 46 (presuming she has used her own ova) does NOT mean that women can wait until whenever we damn well choose to have a baby.
I love Halle, I think she is beautiful and talented, and a great mother. And it’s none of my business how she conceived this child. Except that if she did use an egg donor, or any kind of medical assistance to conceive her baby, she has truly done every woman who looks to her as a roll model a huge disservice.
My other love, Jennifer Anniston, who I hope will be the next celebrity to announce her impending motherhood, has made remarks which lead me to believe that she recognizes biology is not on her side (and to be fair Halle did say she thought this phase of her life was over — but what phase of her life did she refer to? Getting pregnant the old fashioned way or changing diapers and breast feeding?).
I also get, as a reproductive lawyer, why Halle might not be able to say she used an egg donor. If she used an egg donor and entered into an anonymous egg donation agreement, she might be legally precluded from making any reference to egg donation when relating details of her conception story, lest she inadvertently reveal the identity of her egg donor. This is a discussion I have had with celebrities whom I have represented and who have used egg donors: Whether and to what extent they are willing to go public, as there are ways to go public while still protecting the anonymity of their egg donor. It can be done and I am hopeful that one of them will one day — when she and her family feel the time is right for their family — make some kind of public remark about how their family was conceived. I also understand, however, that to make that statement is to forever disclose very personal details involving their children. These are details that their children should have a right to agree to share with the public or request remain a private, family matter. But many of my colleagues feel that the minute Halle Berry accepted her status as a premiere celebrity that she lost that right to be private and even more, voluntarily gave up her right to privacy in the interest of promoting that status as a female celebrity roll model which she has so openly embraced. I think it’s worth exploring this aspect of egg donation in the celebrity community in a blog devoted more to legal and ethical issues that are discussed when drafting an anonymous egg donation agreement. But putting these dynamics and very delicate issues aside, there is no getting around the fact that Halle’s pregnancy is going to perpetuate the overwhelming misconception that women in their mid-forties can get pregnant with a healthy infant, carry to term, and live happily ever after. The percentage of women who actually achieve this, however, are less than 2% of the female population.
More and more young women are getting the message. But far too many women age 35 and older simply do not understand the ticking time bomb that is the NOvary and will look at Halle and think “see she did it! so can I!”
Sadly, the reality is that Halle is (again assuming this is an old-fashioned conception) one of an extremely small number of women who get pregnant in their mid-forties. She is incredibly lucky. The kind of lucky that wins the $110,000,000.00 lottery. Congratulations to Halle (and my thoughts and prayers are with you Jennifer and Justin), but to anyone who looks at these women and think they are representative of the general population, or that they indicate a realistic chance for conceiving a baby using your own eggs at the same age as has (presumably) Halle, please do your research. By the time we turn 30, 90% of our good, genetically normal eggs have joined forces with the NOvary, by the time we are 40, 95% of those eggs have moved into that plush condo in Boca. The older you are, the more risk you face of serious infertility issues related to egg quality and quantity, and high rates of miscarriage due to chromosomally abnormal eggs. Halle may have won the lottery. That she is healthy enough to carry a pregnancy I have no doubt, but that she had healthy enough eggs to easily conceive this baby, that was a real long shot and if she did get pregnant using her own eggs, she is one helluva a lucky lady. Because 99% of the rest of us aren’t going to be so lucky. Please don’t look at Halle as your inspiration or roll model, whatever it was that led to the conception of this child defies the laws of fertility. I want all of us to have babies regardless of whether we are 35, 45, or perhaps even 55. But using our own eggs at those ages is something we must face as increasing unlikely as we increase in age.
Donor egg, and even egg freezing, give us the chance to wait until we are 46 to have a baby. Whether or not Halle is one of the many, many women who chose donor egg to help them conceive is something we may never know. But a word to the wise: don’t assume she conceived that baby without the help of medical science and/or another woman’s healthy egg. As I said in the beginning of this blog, a little over a year ago Halle Berry was cited as an example of the women in Hollywood who are blurring the lines and confusing women into believing our fertility exists far longer than it realistically does. What an interesting coincidence that a year later, she is announcing that she is pregnant and that a wonderful miracle has taken place.
All babies are miracles, the question is whether and to what extent Halle’s pregnancy and her little miracle will continue to confuse, confound, and frustrate all of the women who look to her as a symbol of fertility, of a fertility that frankly does not exist for the vast, vast majority of 46 year-old women. The odds of someone like me conceiving using my own eggs? Let’s just say I don’t play the lottery. If I choose to have a baby at any point in the coming months or years, it will be from the miracle gift of egg donation. I’d rather bet on the odds of having a 75% chance of conceiving and carrying to term than the 95% odds against me being another Halle Berry.
Filed under: Age and Infertility, Egg Donation, In the News, infertility in the media, Infertility on Television, IVF, Personal Musings, Thinking Out Loud, Uncategorized
Tags: age and infertility, Egg Donation, Halle Berry
Post Traumatic Infertility Stress Disorder and National Infertility Awareness Week
April 2, 2013 | By: Liz
We are rapidly approaching National Infertility Awareness Week (April 21-27); a week that is devoted to raising awareness of infertility and its impact on our lives. This is an important week, not just because we are discussing infertility on a national level, but because many of us may are faced with thoughts and memories that have long since been buried. Or have they? Many an infertile woman will understand very clearly what I mean when I refer to that which I call Post Traumatic Infertility Stress Disorder (PTIFSD). This is the part of our lives where we are periodically haunted by our infertility (IF) treatment, sometimes years after it has ended. Regardless of the outcome of our treatment, PTIFSD is signaled by a random flashback to one of any number of emotionally devastating moments during infertility treatment, a flashback that comes out of nowhere and is so vivid and acute that it catches our breath and momentarily disables us.
The first time I encountered PTIFSD was about two years after I had stopped IF treatment. One day I was holding my baby while on line in Starbucks and a woman came in bursting with news for the friends who were waiting for her: she was finally pregnant with twins and her beta was high! Upon overhearing this news (along with everyone else in Starbucks, most of whom probably had no clue what a beta is or why it was relevant) I had an immediate flashback to a time I too had learned I was pregnant, had a high beta and was probably carrying twins. My flashback delved further, rapidly scrolling through memories of the messages on my answering machine, including those from three nurses at my clinic to congratulate me and share their excitement about my pregnancy. Two of them gave me information that initially had not been shared with me, information which confirmed that I “must be” carrying twins, although that would later be confirmed by ultrasound. My brain spun with these memories and I became disoriented. It was only when the child in my arms, my child, grabbed my hair to get my attention that I snapped out of my seemingly trance-like state. I forgot where I was in time. I forgot I had a child. All I could remember were those happy moments of learning that I finally had a healthy pregnancy under way and the devastation that followed approximately 9 weeks later when I learned that I had to undergo yet another D&C and that my dreams were once again, dead.
While some of us do emerge emotionally unscathed from infertility treatment, many of us carry battle scars that last a lifetime. There is a cruel side of infertility treatment that people don’t often talk about and it involves the emotional scars we are left with, sometimes years after our treatment has ended and we are supposed to have “made peace” with our family building. Not many people will acknowledge that they still have bad days, get jealous or angry (sometimes very angry) over something small and seemingly benign but nevertheless powerful enough to cause a shock wave of traumatic and painful memories from our days undergoing infertility treatment to overtake us and send us into a tailspin, the likes of which we haven’t felt since. . . well since our days of infertility treatment. It has been a long time since I had a PTIFSD encounter but sadly, I had one recently and it was no easier to tolerate than was the Starbucks encounter I described above. And what struck me most was that while I understood that my infertility might still be fresh in my mind less than two years after my husband and I walked away from our IVF Clinic, I didn’t expect those same memories to carry with them the same ferocity so many years later. I mean, it has been over ten (10) years since I underwent an IVF cycle. Certainly time must have tempered my feelings, yes?
Apparently the answer was a resounding “no”. I was checking my email one morning when I received a surprise baby-on-the-way announcement from one of my childhood friends. She and I not only went to kindergarten together but we went through infertility treatment together. Despite having similar diagnoses, she went on to achieving several successful pregnancies via egg donation. I was so happy for her that I knitted a little sweater for her first born. What I experienced upon opening her email a few weeks ago, however, was hideously painful and I was left depressed, lethargic, moody and frightened. My friend had gotten pregnant by accident, in other words, without medical assistance. Indeed, much to everyone’s stupefaction, despite her age and many infertility diagnoses, she is experiencing a very healthy twin pregnancy. As I sat there reading her email I was happy for her, but at the same time I was overcome by memories of us holding hands while waiting to have our blood drawn in the morning, and the time she called in tears because she finally had to face the fact that she needed to use donor egg if she wanted to achieve a pregnancy (or so everyone thought at the time). And as I relived those memories (emphasis on the word relive) and read her email again I suddenly was overcome by anger and jealousy that I was not the one sending out the email. Out of nowhere I was overcome with a jealous rage that bordered on hate. Hatred for someone I have loved since I was so small a person? Yes, if I am truly honest I have to admit that I felt inklings of hatred for her. For the next day or so I had mood swings and bit people’s heads-off for no reason. It was only when I finally told my husband what I had received in that email that the feelings became less intense. Somehow by acknowledging my feelings I was finally able to begin to move away from this non-stop video memory spinning inside my head. Somehow this email had me caught in a perpetual mental loop of painful and devastating memories from my IF. As the memories subsided, I remembered a conversation with a therapist I had seen during and after my IVF days. During one of my sessions, she commented that what I was experiencing seemed a lot like post traumatic stress disorder; and so she and I created a new diagnosis, Post Traumatic Infertility Stress Disorder or PTIFSD.
I now have learned how to recognize and embrace the PTIFSD memories and use them to remind me of the joy that surrounds me. I hope my PTIFSD is now truly at rest in my past. But it’s okay if it is not. Because I know where these feelings come from, and that they will go away. These feelings do not control me, nor does my infertility continue to define me, instead it is the genesis of my growth as a human being, a woman, and a mother.
I recently had dinner with an infertility doctor. He asked me why I wrote The Infertility Survival Handbook and whether it had been cathartic. I told him why I wrote it – to let other women know they were not alone – but I also acknowledged that writing it wasn’t the least bit cathartic. My healing process is one that continues. Perhaps writing The Infertility Survival Handbook was my way of starting the healing process but I would be lying if I said I was finished with it.
The Infertility Survival Handbook was released during National Infertility Awareness Week (NIAW) in 2004. Today as we approach NIAW, I am thinking of all of the women (and men) who are currently struggling to have a baby. Now on its’ ninth (yes 9th!! Woot! Woot!) printing and as I contemplate writing an updated version, I think of all those women who have read my book and have emailed me, messaged me on facebook, or even called me (on a private number at home at 6am); women, who like me, struggle with the emotions that linger even after they have become mothers. PTIFSD is not yet in any diagnostic manuals, but I wish it were. I had two wonderful therapists who helped validate the emotions I was experiencing both during my treatment and well after it ended; therapists who believe in PTIFSD and its power. Not everyone has people in their lives like my therapist who invented PTIFSD, or someone that understands and “gets it”. And it is for those women I write this blog.
No you are not alone. Being unable to conceive a child when you so desperately want one, is painful. You are entitled to express that pain. You should not be shushed or told to “just relax” so you can get pregnant. And yes, that pain can stay in your heart and mind and hide there waiting to jump out and catch you off guard. That too is normal and you are entitled to express that pain as well. You should not be shushed or told “it’s over now just forget about it”.
You are not crazy. Infertility is a part of your life regardless of the ultimate outcome. It is an experience that shapes you and has the power to disfigure you – to change who you are – if you let it. If you think you might have “Post Traumatic Infertility Stress Disorder”, talk to someone. Get those feelings out. Give your feelings a name. Sometimes just by having a name, a reason, or a diagnosis gives you closure and helps you move past the feelings and you experience a sense of relief that allows you to let go. I may not be like my childhood/IF buddy who is on the verge of delivering twins. But I also am no longer be at the mercy of my memories. By being reminded that my reactions and feelings when confronted with things that trigger painful memories has a name, PTIFSD, I have been able to regain my balance. Or perhaps it is simply the understanding that, like anyone who goes through a very traumatic experience, I am bound to (at some point) relive that trauma, which has enabled me to begin to heal on a new, even deeper level.
Infertility awareness requires not only an understanding and recognition of the disease itself but of what that disease can do to us. So if all the media coverage regarding infertility in the coming days (of which I hope there is a lot), finds you feeling a little more blue (or red) than normal, a little bit more withdrawn or melancholy, remind yourself that this media coverage is triggering some old buried memories, just as that woman in Starbucks and my friend’s email caused me to become momentarily blinded by sadness, grief, and anger. It is okay that our infertility causes some of us to experience things and feel emotions long after we thought they were over. That can be a part of infertility too, PTIFSD; and it too deserves some recognition during NIAW.
The point of NIAW is to help us recognize that we should not suffer in silence, that we should band together and make people aware that infertility is a disease. What I wanted to share with you, and make people aware of is not just the medical diagnoses, but the sometimes unbearable emotional pain we feel. We also should not be forced to suffer the emotional pain in silence.
Filed under: Check This Out, Deadly Silence, Egg Donation, In the News, infertility in the media, Infertility on Television, IVF, Personal Musings, Recurrent Pregnancy Loss, The Infertility Survival Handbook, Thinking Out Loud
Tags: emotional impact, infertility, IVF, miscarriage, NIAW, Peace to Parenthood, success, The Infertility Survival Handbook
