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The Top Ten Things Reproductive Lawyers Can Help You With – Part 2

February 23, 2016 | By:

So in Part 1 we discussed some of the agreements you might need to enter into when building your family through third-party assisted reproduction and how my colleagues and I can help you with them.  Now let’s take a look at some of the more obscure but equally important issues that might come up.

back to our top ten list:

(6) Using cryopreserved embryos in the event of a divorce or after a death.  Do you know whether you can use frozen embryos after a divorce or separation?  Did you know that this is one of the hottest legal issues in third-party assisted reproduction law (Hello Sofia!).  What if you want to conceive a child using frozen embryos after your partner dies?  Will you be a legal parent?  Will your child be entitled to inherit from your partner’s estate, or your partner’s social security benefits?  These are some of the most complicated and cutting-edge issues in reproductive law and you don’t have to be Sofia Vergara to regret not having had a thorough discussion with an attorney before you make decisions (or have a pre-conception embryo disposition agreement prepared or even just check off a box on a clinic consent form) that has the power to change your life plans.  And heck, just look at Sherri Shepherd and her battle not to have child support obligations.  That case just turns my stomach.

(7) Managing money in a surrogacy arrangement:  You may be spending over $100,000 in connection with your surrogacy or receiving tens of thousands of dollars in compensation as a surrogate.  Do you know where the money is being held?  Do you know how and when it is being paid and what documentation, if any is being provided to support the payment?  What happens if your agency goes under and the escrow account was held by the agency?  Are independent escrow managers necessary and when should you retain one?  Do the state laws which govern your surrogacy arrangement provide special rules for how and where money must be held?  How do you know if your money is safe?

(8)  Doing a home insemination:  It may be a more affordable way to conceive your child (and more intimate as compared to the stirrups in your doc’s office), but will you have a legally recognized family if you do a home insemination?  Did you know that in some states a doctor must perform the insemination in order to terminate the sperm donor’s parental rights and ensure that the intended parents are deemed legal parents?

(9) Getting your birth certificate:  How and when can you get a birth certificate with the intended parents'(s) name(s) on them?  Can you get them before the baby is born or only after birth?  Do you need to do a second or step-parent adoption?  Is the law in the State in which your baby will be born uniform throughout the State or does it vary County by County or even Judge by Judge?  Do you know what you need to do, where you need to do it and when you need to do it in order to obtain a birth certificate for your child with your name on it?  One of my colleagues has a fairly famous quote from an interview he gave about the fact that the ease with which he can or cannot obtain parentage orders sometimes comes down to the button he pushes in the elevator in the courthouse.  Are you walking into a courthouse like that?  Do you have any alternative?

(10) Understanding the impact of changing laws:  Third-party assisted reproduction is a new and emerging area of the law.  Some states have statutes governing egg and sperm donation, and surrogacy, others have only case law (or judge made) law.  Some states have statutes or laws which are unfavorable and others have laws which are favorable to different types of third-party assisted reproduction.  Some states have outdated laws that may change in the near future.  Other states have laws which may be unconstitutional given recent decisions from the United States Supreme Court, but the state may not yet be complying with or adhering to new and evolving constitutional principles.  When and how will these evolving laws impact your family building and the recognition of your family, as a family?  And as long as we are discussing the status of various state laws, doctors (as much as we love and need them in this process) don’t always fully understand the laws, especially the nuances with which my colleagues and I have become familiar.  Just as I would never try and tell my clients what their latest blood test results mean,  and my clients should not listen to me with great seriousness when I put on my honorary lab coat, they shouldn’t listen to their doctor’s advice about what they can and cannot do to build their family.  Sure, get her opinions on what options you have, but check with someone who actually practices reproductive law before you cross a type of third-party assisted reproduction off your list because your doctor tells you that option isn’t available it to you.  

My colleagues and I can help you answer most, if not all of these questions.  We can help you make smart (or smarter) choices as you begin the often complicated process of building your family using donor gametes like egg, sperm, or embryos, or with the help of a gestational surrogate.  We can protect you in almost all of the scenarios and situations discussed in this top ten list.  Reproductive lawyers are here to help you become a parent and help make sure that your legal parent-child relationship and family are recognized by the government and other people who might try to challenge your status as a mom or dad.  It’s that simple.  And it’s that important. 

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The Top Ten Things Reproductive Lawyers Can Help You With

February 10, 2016 | By:

Sometimes when I tell people what I do for a living they look at me like I have two heads.

Reproductive Lawyer?  What’s that???

Part One

In this day and age when celebs like Sofia Vergara and her Ex are all over the news fighting over which one of them is going to get to use their frozen embryos, I am really surprised that so many people have no idea what it is that reproductive lawyers do.  Or more to the point, why reproductive lawyers are not only helpful, but often play a critical and essential role for individuals and couples building their family through third-party assisted reproductive arrangements like surrogacy, egg, sperm, and embryo donation.

So what is it that we do for our clients?  How is it that we play such an important but poorly understood role in the formation of our modern families?  Here, in no particular order, is an overview of the top ten things reproductive lawyers can help you with as you begin to build your family through third-party assisted reproduction.  Now these may not be humor-worthy of top ten list legend David Letterman, but for anyone going through third-party assisted reproduction or considering it, this is an important list:

(1)  Reviewing your agreement with your surrogacy or egg donation agency (sometimes called a service agreement):  If things go south with your relationship with the agency this is the document that is going to be your agency’s safety net and the document you will look to in order to seek a refund of all or some of the money you paid.  Shouldn’t you know your rights and the agency’s obligations and responsibilities before you sign an agreement and work with the agency?

(2) Reviewing your surrogates insurance policy:  What if it doesn’t cover a surrogacy pregnancy?  What options do you have to avoid a potentially catastrophic financial liability?

(3) Preparing contracts for you:  Egg, sperm, and embryo donation agreements (anonymous or known), and gestational surrogacy agreements are all critical documents in protecting your family in the future and protecting you and your donor/surrogate during the IVF process and/or pregnancy.  Understanding the role this agreement plays in third-party assisted reproduction and the necessity for having them drafted is far too often overlooked.  How do you make sure your sperm donor is really a donor and not something more (like a parent)?  When does your egg donor relinquish parental rights?  What happens if she changes her mind about donating? How and when can you use any leftover frozen eggs or preembryos?  What happens if you and your surrogate disagree over something really important like selectively reducing the pregnancy?

(4) Using boilerplate contracts with your agency, or contracts you find on the internet:  Do they really protect you and what issues might arise if you use one?  Did you know that you are probably violating copyright laws by using one?  Did you know you cannot be forced or compelled to use an agreement provided by an agency and that you have the right to use an independent lawyer?

(5)  Entering into a known sperm donation agreement (with a friend or a Starbucks Sperm Donor):  What do you need to know about these sometimes very dicey situations?  What makes them so risky and how can you avoid those risks?  What can you do to protect yourself whether you are the intended parent or the sperm donor?  How can you protect yourself from a known sperm donor asserting parental rights or an intended parent trying to impose parental rights, custody or child support obligations?  Does a sperm donor need to be worried about the State asserting a claim that he has child support obligations?  Good intentions aside, everyone thinking about this form of family building is (in my humble opinion — IMHO) a fool for not consulting with an attorney before entering into this type of family building arrangement.

 

These are just a few of the important ways reproductive lawyers can help you through the obstacle course of third-party assisted reproduction.  We want to help you make smart future-thinking decisions and ensure that everyone has their rights protected as they intend them to be and as they move forward through this process.

Up Next in Part 2 We Explore:

(6)  Planning for Divorce or Death.

(7)  Managing money in a surrogacy arrangement.

(8)  Doing a home insemination:

(9) Getting your birth certificate:

(10) Understanding the impact of changing reproductive laws:

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

January 8, 2013 | By:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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