Archive for the ‘In the News’ Category
What you want to know about surrogacy in New York and why you want to know it!
January 25, 2012 | By: Liz
I have been watching all the coverage of the birth of Beyonce’s baby and the rumors she used a surrogate, and I have been fielding questions from clients left and right about whether this is true (I have no idea, please stop asking. This is what I get for engaging in legal debate on FaceBook!). I do have to say, however, that I am somewhat surprised by the lack of knowledge about surrogacy laws in New York. Most people think it is totally illegal under all circumstances; they are wrong. Most people think no one ever uses a surrogate in NY; that also is wrong. Most people think it is impossible to find a surrogate in NY; that is somewhat wrong. Most people that have some understanding about what is permissible regarding surrogacy in New York think that you have to adopt the baby in order to get your name on the birth certificate. This too is wrong.
So what is the deal with surrogacy in New York State anyway? Would you be surprised if I told you that one of the most active aspects of my practice involves surrogacy and it all takes place in the Empire State? Would you be even more surprised to know that it also is one of the more fun things I do and that I love helping people with surrogacy in NY. It happens to be one of the more time intensive aspects of my work but I get to dust off my old litigation garb and go to Court (in fact I am headed to Court this Friday) which always offsets the time spent drafting papers. It is one of the aspects of my work that truly blends all aspects of what I love doing as a lawyer. I get to help people have babies, I get to draft documents, motion papers, and go to Court and talk about esoteric aspects of NY law with judges. Indeed, the law in NY with respect to surrogacy is getting so well-settled thanks to recently decided cases (to the extent that any aspect of ART law is “settled” or established) that half the time the Judge just wants to engage in an intellectual debate about what the law does and does not provide for and why. Half the time I think they just want me to explain third-party assisted reproduction, IVF, Embryo Transfer Procedures, and the definition of an embryo, but far be it from me to (a) miss an opportunity to “argue” with anyone; (2) miss an opportunity to educate anyone about what I do; and (3) do anything that stands in the way of helping someone become a parent. But I digress.
The skinny on making someone else’s belly fat with your baby in the State of New York (and while I mean absolutely no disrespect to gestational carriers/surrogates and am awed by what these women do for infertile women and men, let’s face it, if you can FINALLY have a biological child and can do so without the proverbial bump, this may be a good thing. Trust me, having been pregnant 9+ times, most of us do not get a cute little bump ala Beyonce although I do like “the glo!” And for the record I am not talking about using a surrogate for vanity’s sake. I am talking about long battles with infertility etc). But I digress again . . . is as follows:
No compensation.
Must have some type of legal document prepared before cycle starts evidencing the parties’ intent as to who will be parents. This document is not a legally enforceable contract but is useful for many purposes, not the least of which is avoiding later disagreements over how the pregnancy will be handled and establishing intent for purposes of determining parentage (let your lawyer sweat the language in the Court documents but I do think there is merit to including this document when you are requesting a court order to obtain a birth certificate, although some attorneys may disagree with me on this — I haven’t yet had an issue submitting it).
After confirmed conception, sometime in second trimester, you should begin thinking about getting Court Orders determining parentage. These papers will be filed in Court AFTER the baby is born and depending on who is seeking parental rights it may be Family Court or Supreme Court (but recent case law indicates you could probably file in either Court for either gender parent–I am currently trying for the first time to file the paperwork for both mom and dad in the same court, to date I have always submitted them in different courts. Like I said, new case law is giving me an opportunity to try and streamline the process). There is a lot of paperwork to be prepared so be nice and give your attorney a break and give them a head-start. Please don’t descend upon us the day your baby has been born. Although, depending on our calendars we will probably try to help you anyway.
Make sure to notify the hospital social work department of what is going on so they are not caught off guard and can assist you with proper legal paperwork at time of birth.
After birth the surrogate (and her husband if she has one) will have to relinquish/surrender/terminate (pick your verb) their parental rights. They are both considered the baby’s legal and natural parents under New York law until they terminate parental rights and you get your Court Order. They should execute some additional documents as well, but they exceed the scope of the blog. A good reproductive lawyer will know what else should be signed at or around the time of birth in addition to documents terminating parental rights. Please note that, just because the surrogate and/or husband are taking steps to terminate their parental rights does not mean you are adopting your baby. Nor is there a home study involved in this process as there is in an adoption.
Around this time you get to take your baby home!
Your attorney next files your proceedings in whatever jurisdiction(s) in which s/he has selected for purposes of venue. Not adoption proceedings. I call them Parentage Proceedings or Parentage Orders.
It’s a good idea to try and get these papers moving through the court system as soon as possible after birth (doesn’t always happen as soon as everyone would like) and with as much speed as the court system will provide (there are options for making the process go more quickly, so talk to your reproductive lawyer as most of us feel that time is of the essence).
These papers request that the Court declare you to be the baby’s legal/natural/genetic/biological (pick your verb) parent(s), and that New York State replace the original birth certificate that was issued with the surrogate’s name (this must be issued under NY law until such time as the legislature determines whether it can forego this step). The birth certificate with the intended/biological parent(s) name on it looks identical to the first — no one will know the diff.
You can request to have the first birth certificate with the surrogate’s name on it be sealed. However, many intended parent(s) feel this is unnecessary as they have no problem recognizing the gift that their friend or family member has given them by carrying and delivering the baby — everyone knows already so who cares whether the birth certificate can be obtained without showing cause to have it unsealed. But this is a personal issue to discuss with your attorney.
If all goes well, the Court grants your petition(s) and you get the new birth certificate with your name(s) on it. As noted, the original birth certificate may or may not be sealed.
Depending on where in New York you did all of this will impact how quickly you get the new birth certificate with your name on it. I have had clients get one in 30 days and others have waited months. This truly will come down to red tape and papers not getting lost on people’s desks!
Can you find a friend or family member to carry a baby for you? You would be surprised at how many people do have someone in their lives who would be willing to help you. One thing I have noticed is that the people who have been more open and out-of-the-closet about their infertility often have more people offering to be a compassionate surrogate than those of us who remain silent. They can’t offer to help if you don’t know you need it, right?? For the record, we did have a family member who offered to carry a baby for us and while this wasn’t something we were interested in doing (we chose adoption instead), we were both moved beyond words by the fact that she even considered doing it. You know who you are. Love you!!
This blog is not intended to provide legal advice. It is intended to provide an educational summary and overview of what this attorney believes currently may and can happen in the State of New York with respect to compassionate surrogacy arrangements, and in order to obtain a birth certificate for intended and/or biological parents whose child was carried by a friend or family member. If you are interested in compassionate surrogacy you should speak with an experienced reproductive lawyer or family lawyer with experience with these types of proceedings.
And for the record, I believe Beyonce delivered her baby.
Filed under: Birth Certificates, Birth Orders, In the News, IVF, Parentage Orders, Pre-Birth Orders, Sam Sex Parenting and Reproductive Law, Surrogacy in New York, Third-Party Assisted Reproduction, Uncompensated Surrogacy
Tags: adoption, Birth Family, birth moms, gestational carrier, infertility, intent, miscarriage, Parentage, success
The Starbucks Sperm Donor
October 18, 2011 | By: Liz
There have been a ton of interesting articles in magazines recently about third party assisted reproduction. One particular article caught my attention and both intrigued and kind of grossed me out.
The article was in the October 10th/17th edition of Newsweek, “You got your sperm where?” The discussion in the article focused on how people are finding sperm donors (SD for short) through the internet (the “virtual” donor). The article described one donor-recipient match and donation that was initiated through web contact and fulfilled via a donation made in a Starbucks bathroom in NYC. Major yuck factor to that one. Seriously, have you been in a Starbucks bathroom recently? The line outside the bathroom will give you an indication of how actively they are used (hopefully not all for sperm donation purposes), and thus how potentially grimy they are. I have a pretty high threshold for gross bathrooms and overall I think Starbucks does a good job keeping its bathrooms clean. However, with the high traffic many of these bathrooms experience, you have to assume that they are crawling with germs. And if you are trying to have a baby, at least to me, public bathrooms and sperm donation don’t make a great combination. But to each his or her own, I suppose.
The thing that really got me, aside from the fact that this was taking place in Starbucks, was the lack of thought people were giving to what they are doing. It’s one thing to go on a blind date with someone you met on an internet dating site. To conceive a child from an online site — one that is not run by a sperm bank — seems a wee bit more frightening than agreeing to meet your average Tom, Dick or Harry for dinner or drinks.
One of the reasons people seem to be turning to online sources is to avoid the anonymity of sperm banks. There is a sperm donor registry that is designed to help families created through anonymous donation, match the SD’s with the children conceived from the donations and to help children/adults conceived through sperm donation find their biological father. The appeal of finding a random guy from whom you will receive donated sperm, and with whom you can establish some kind of non-anonymous but also non-parent-child relationship, is appealing to many people. I get that. No problem there. Except, I don’t know, maybe some legal issues surrounding that lack of parent-child relationship. . . .
Known sperm donation agreements are some of the trickiest agreements a reproductive lawyer can draft. I am always extremely careful when I draft them. Why you ask? Because, even though the goal of the agreement may be to avoid having the SD be liable for child support or retain any parental rights to the child conceived through the donation . . . courts overturn them with surprising frequency. All it takes are a couple of birthday cards signed “love Dad” and a court may well determine that, notwithstanding my carefully drafted known sperm donation agreement, the SD does indeed have parental rights, is liable for child support, and the child may even be able to inherit through “donor dad’s” estate. Did any of us intend for that to happen when we sat down at the table to discuss what they wanted the agreement to accomplish? No. My clients usually want to have a friend donate sperm so that they can have a child (alone or with a partner), and have the comfort of knowing who the person is that is donating his genetic material. All those “what-if” and “what is he like” questions can be answered later by the existence of a specific known SD.
If the SD and the recipient mom don’t want to have a parental relationship — for example two women in a relationship who intend to parent a child together but don’t want to use an anonymous sperm donor, and would like a close friend of theirs to donate his sperm (think along the lines of a well-known singer and her partner and another very well known male singer) — the sperm donation agreement becomes a critical component for recognition of the intended family unit. The sperm donation agreement establishes what everyone intends to happen, and what everyone intends to be their respective rights and responsibilities in the future. These intentions are set forth in writing prior to the conception of a child. Most of the case law in the US that involves third-party assisted reproduction (including known sperm donation) looks to the parties’ intent at the time the child is conceived. Provided that everyone sticks to the terms of the agreement, usually a good sperm donation agreement will be upheld if ever there are arguments, disagreements, or when and if someone suddenly wants something that was NOT intended when the agreement was drafted. The thing is that just a few real-life events can cause that sperm donation agreement, and the parties’ intention, to come into question. A court could decide that while the parties may have written down and signed an agreement that said one thing, their actions reveal a contrary intent. Actions frequently speak louder than words when it comes to known sperm donation arrangements.
So let’s get back to the people who donated and received the sperm at Starbucks. Do you think they took the time to consult a reproductive lawyer? Did they consider what the consequences would be 10 years down the road if suddenly one person decided they wanted a different type of relationship or needed child support? It didn’t sound like it from the article in Newsweek. While their intent may have considered the prospective best interests of the child — having a person that the child could one day meet or speak to and thus avoid identity issues that plague many children conceived via anonymous sperm donation (thus giving rise to the donor registry I mentioned) — the reality of what they were doing and the lack of awareness of the long term ramifications are mind boggling.
According to the article, one man who is donating sperm through online forums, is asking the recipient to scream “make me pregnant!” or something like it during intercourse. Let’s agree to not discuss the fact that they weren’t using medical professionals or a home insemination kit. The statement the recipient is being asked to state in and of itself could be interpreted as an expression of their mutual agreement and intent to parent a child, TOGETHER. Did the recipient of this sperm intend for this man to be the FATHER of her child? I don’t believe she did. Or did she? Did the SD?
And hey, are we doing background medical checks of any kind? Does anyone know if the people donating or receiving the sperm are healthy or otherwise able to parent a child? What if the SD has an infectious disease? What if the recipient is an ax-murderer? Odds are they aren’t anything other than people with good and honorable intentions. But if the law comes down to intent, don’t we owe it to the child to express that intent?
The internet is a wonderful place and it is a frightening place. We all have heard horror stories stemming from internet match-making. Let’s not add conception of a human being to those horror stories. For anyone considering this type of sperm donation, and apparently there are plenty of people doing it, or even those seeking to enter into a known sperm donation with the assistance of medical professionals, do me a favor: Find a reproductive lawyer or a family lawyer and talk about how you want to protect your family!
Maybe I am over-thinking this. Maybe it’s not different than someone who goes to a bar knowing she is ovulating, with the intent to hook-up with some guy and hope she gets pregnant. At least the people going to Starbucks theoretically know each other’s real names and have some information about each other, and both know that a child is being conceived. Good intentions and lack of (legal) judgment aren’t a crime. Then again, apparently Law & Order made an episode about this subject (maybe not involving a Starbucks sperm donor) and I would love to watch it. I wonder what issues the writers of Law & Order found to address?
And really, I am just totally dumbfounded by this, someone donated his sperm in a Starbucks bathroom? Wow. What’s next? A mile-high club for sperm donors?
Filed under: anonymous sperm donation, Check This Out, Current Affairs, In the News, Infertility on Television, known sperm donation, Personal Musings, Sam Sex Parenting and Reproductive Law, Thinking Out Loud, Third-Party Assisted Reproduction
How art imitates and informs our life as prospective parents.
May 26, 2011 | By: Liz
I have periodically blogged about how Hollywood portrays infertility, but I have never really focused on how Hollywood or television portrays parenthood. There are tons of great movies and t.v. shows about parenting, but there isn’t a ton that really addresses the transition people go through when they become parents: The Leap from Infertility to Parenthood. Granted there are fantastic movies like Juno that really capture aspects of adoption, but until now I haven’t really seen a movie or t.v. show that helped me understand (even as Monday Morning QB) what the transition — the Leap — is like. I am always “warning” my clients to be prepared for life with baby, but I previously have not had anything I could tell them to watch which accurately represented or characterized the Leap.
Well that has all changed. Last weekend I was watching a movie with my DH (Dear Husband). He had rented the film and I had agreed to watch it (despite an initial lack of interest) because the main character was played by Katherine Heigl, who is as we know, an adoptive mom. Not only do I love her films in general but I always am willing to watch a movie where the actor is in real life a parent through ART (assisted reproductive technologies) or adoption. And I am especially interested if the film involves parenting or the formation of a family. Putting aside a desire to escape my life and enjoy the movie, I always wonder whether the actor’s personal experiences with infertility, ART or adoption will influence his or her choices as an actor.
To be honest, when DH proposed watching this film I had no idea what it was about. I was inclined to pass as I had a vague recollection that the film had not been a tremendous success at the box office. But when I heard that Katherine Heigl (who ranks #2 behind J.A. as one of my favorite female actresses) was one of the lead actors, I caved. And what a good decision that turned out to be!
The movie in question is “Life as We Know It” starring KH and Josh Duhamel (JD). You can check out a trailer at http://lifeasweknowitmovie.warnerbros.com/dvd/
In this movie KH and JD play the close friends of a couple who pass away, and who name KH/JD as their baby’s legal guardians. Romantic comedy aside, the movie is a fantastic and very realistic portrayal of the Leap, and how the relationship between the parents can change. As I was watching this movie, both my DH and I were struck by how much the movie reminded us of what it was like to suddenly go from being wanna-be parents to BOOM being parents.
I think the movie really resonated for me because I am an adoptive parent who had very little notice of our pending adoption and I had never really focused on what it would be like to be a parent (let’s face it I spent the entire time wanting a baby and never realistically envisioned what it would be like to have the baby and be a mom). Once the movie really gets past the characters’ acceptance that they are now parents, there are some very insightful moments about the reality of being a parent and how different that reality is from your expectations. Whether or not you take a baby care class as part of your adoption plan, I highly recommend this film because I think that it really shows you — and in a humorous, light-hearted manner — what you are in for when someone hands you that baby! From changing that first poopy diaper, to installing baby gates and midnight runs to the pediatrician, I think that Life as We Know It is a great primer for prospective parents through adoption or assisted reproductive technologies like gestational surrogacy.
Most people who have gone through infertility tend to have blinders on about the reality of parenting. Whether you only have 24 hours notice or ten months to prepare for your baby’s arrival, this film has some very poignant moments about what the transition feels like and what surprising issues parenting can present us with. Best of all it’s fun to watch. It is a surprisingly good romantic comedy, Josh Duhamel is total eye candy (and I won’t hold it against my DH that he thinks Katherine is eye candy too), and it’s sweet, has a happy ending and all that stuff. So if you are on your way to parenthood after experiencing medical or social infertility, I think this movie is a Must See.
And not to totally discredit my intelligence, my DS (Dear Son) has turned me on to SpongeBob SqaurePants. I had the unexpected pleasure this week (while cleaning up a child’s puke) of watching an episode of SpongeBob involving a baby scallop and SpongeBob’s experiences as a new parent. This episode of SpongeBob presents a similarly hysterical and informative perspective of what the Leap is like to being a full time SAHM. I can’t remember the title of the episode off the top of my head (I will check the DVR and post the name of the episode if I can find it), but suffice it to say that I could relate to SpongeBob’s adjustment to caring for a baby all day and all night while Patrick (his best friend) goes off to work every day as they simulate and satirize what its like to be new parents.
I totally and completely remember that in the beginning of my “maternity leave” I had a rough time. By Wednesday night when DH walked through the door, I was an exhausted mess. Thursday night, when DH returned from work and walked-in the door, I handed over DS and went upstairs to have a good exhausted-woman-cry-in-the-shower. By Friday night, I was prepared for the hand-off at the door, and upon hand-off I bolted out of the house to have coffee at Starbucks (decaf of course b/c I was breastfeeding).
So what am I getting at? “Life as we know it” as parents is very different from life as we know it while waiting for the Stork. I don’t really care whether or not you are taking baby care classes or infant CPR (although I think both are excellent ideas) because the reality of life as a new parent is vastly different than anything we can ever learn in school. As infertile prospective parents we tend to be so focused on our goal of becoming parents that we lose sight of what we are in for when we are parents. It is a transition the likes of which you just can’t understand until you are living it and why I call it the Leap. Life As we Know It and even (surprisingly) Master SpongeBob, have nailed it on the head and I highly recommend watching them (when I find out the title of that SpongeBob episode, I will post it and maybe you can find it somewhere and watch it). Both are totally and completely worth watching.
p.s. please note that I am not complaining about being a parent. I love every minute of this crazy, full-catastrophe life I am living! I want more kids and my attitude now is much more about enjoying and being mindful of the joy in this experience. I am just saying that these movies can help prepare you for the full-catastrophe aspect of parenting.
p.p.s. If you have any other movies that you think are good to watch as prospective parents, post them here. Maybe we can start a list of “Movies to Watch During the Wait”!!
Filed under: adoption, In the News, Infertility In The Movies etc., Infertility on Television, IVF, Peace to Parenthood, Personal Musings, The Journey to Parenthood, The Two Week Wait Care Package, Thinking Out Loud, Third-Party Assisted Reproduction, visualization
