Archive for the ‘Sam Sex Parenting and Reproductive Law’ Category
Reproductive Lawyers and ART for Gay Parents to Be
March 31, 2014 | By: Liz
Sometimes I feel like people don’t get what I do for a living. At parties when someone asks me what I do and I tell them I am reproductive lawyer, I get a blank stare and an “uh huh” response. I then explain that I am a lawyer that helps people have babies. I may get a smile but I usually can tell that my fellow partygoer remains confused. He or she will often ask me a question about adoption, assuming that I am an adoption attorney. I next explain that while adoption law is part of my job, with my specific area of practice most of the time the adoption is just for one parent in a same-sex relationship who is seeking to establish parental rights after a surrogate birth. If I am really lucky I get to talk about third-party assisted reproduction and all the ways people can have babies these days–and all the risk that comes with this technology. And I am not talking about medical risks, or the risk of not getting pregnant, as third-party assisted reproductive technology (“Third Party ART”) is unbelievably successful. I am talking about the risks presented by the laws that may apply to these family building arrangements. Most people have no idea how complicated these laws are and how important my job can be to help ensure that all the work doctors are doing to help people become a family, results in a legally-recognized “forever” family.
And it is not just my fellow partygoer who fails to understand the importance of what I do with respect to Third-Party ART. Many doctors have no idea the complexity of the legal landscape their patients may be facing. So when Gay Parents to Be in partnership with RMA CT recently contacted me and told me about an upcoming event it was having with the Triangle Community Center in Connecticut, and that they needed a reproductive lawyer to help round out the panel, I jumped at the opportunity. How could I not participate when asked if I could help explain why a reproductive lawyer needs to be a part of a patients’ ART team, and why what I do really matters? Would I help? No brainer, just tell me where to go and when to be there.
Saturday, April 5th 12pm – 2pm
Triangle Community Center
618 West Avenue, Norwalk CT
I often think that although we are all blessed when we become parents, those of us who faced challenges in becoming parents are more appreciative of our children and our family. There are simple and seemingly insignificant things that couples that conceive without jumping through hoops take for granted, like the birth certificate with their name on it. For those people who may have to spend tens of thousands of dollars and most certainly need a team of doctors and nurses and other reproductive angels to have a baby, that birth certificate is the symbol or proof of their victorious transition to parenthood. The birth certificate is often the one document that says “forever” family more than any other.[i]
While Third-Party ART, like surrogacy, is helping more and more people achieve their dream of having a family, it also raises more and more legal issues about how we protect that family. My job often boils down to making sure that birth certificate is an “untouchable” document and to do that I need to be involved in the process just as early – sometimes even earlier – than the medical team. Preparing the legal landscape ahead of time is just as important as preparing a surrogate’s uterine lining. Just as a reproductive endocrinologist is going to monitor hormone levels and the thickness of a surrogate’s uterine lining in preparation for embryo transfer, one of my roles as a reproductive lawyer is to make sure everything that the medical ART team is doing to create this family, will be legally protected.
Most people entering into surrogacy arrangements understand that they need a contract with their surrogate. What they often fail to understand is that the contract isn’t just about addressing the relationship with the surrogate or the financial commitments being made to her. That surrogacy agreement is going to lay the foundation for obtaining a birth certificate and sometimes having the wrong wording, or not having specific wording in a surrogacy agreement can prevent the birth certificate from ever being issued, or being issued with the right people’s names on it. Although many states have statutes or cases that specifically provide mechanisms for obtaining this birth certificate, in far too many states the complexities regarding the establishment of parentage is far more complicated and/or downright tricky. Although a state may be “surrogacy friendly” the laws in that state may vary county-by-county and even judge-by-judge. Even more, as the country becomes friendlier to marriage equality, and state laws are becoming more progressive, the definition of what a family is may now include three parents, or “intimate partners” who share parenting responsibilities. It is this ever-changing legal landscape applicable to Third-Party ART that makes addressing the legal side of these family building plans essential.
As one of my colleagues has [not so] facetiously said, sometimes whether or not you can get a birth certificate comes down to which elevator button you are pushing in the courthouse. I am really thrilled that I am going to have this opportunity to explain what I do, and hopefully ensure that more people who are considering entering into Third-Party ART arrangements understand how reproductive lawyers can help them, when we can and should be helping them, and helping ensure that when it is time for them to get their birth certificate it (hopefully) doesn’t come down to which button they are pushing in the courthouse elevator. And if it does come down to elevator buttons, that there is confidence that the attorney who has been hired to press the elevator button can successfully navigate the legal landscape necessary to obtain that birth certificate.
[i] This blog does not address issues regarding the enforceability of birth certificates for same-sex couples.
Filed under: Birth Certificates, Birth Orders, Gestational Carrier, Gestational Carrier Arrangements, Parentage Orders, Pre-Birth Orders, Questions about the Office, Sam Sex Parenting and Reproductive Law, Surrogacy, The Journey to Parenthood, Third-Party Assisted Reproduction
Tags: Announcements, gestational carrier
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
Surrogacy Symplified — The Masked Marauder of Misinformation Unmasked!
July 28, 2012 | By: Liz
My phone has been ringing off the hook with questions from prospective clients about surrogacy. Everyone with whom I speak is terribly confused and seems to have received bad or misinformation from someone or somewhere. At first I thought it just a coincidence but now I wonder whether there is someone out in the world spreading vicious rumors about surrogacy thus causing many, many people to live as if they were in the fun house at the amusement park — you know the one with all those crazy mirrors that makes you look totally distorted (and always insanely fat or ugly) — sadly thinking that surrogacy is or will not be an option for them for building their family. As if the world of infertility wasn’t enough of an amusement park fun house, we now need the NOvary(tm) to have another partner in crime, a masked marauder (or perhaps multiple marauders) disseminating incorrect information about surrogacy? I don’t think so!
I’m going to take this opportunity to try and clarify surrogacy and all it’s intricacies especially in New York (most of them legal issues so it’s a good thing I’m a lawyer). As we are dealing with this Masked Marauder of Misinformation (who hereinafter shall be referred to as “MMM”), I am putting on my favorite caped crusader costume (wanna guess which character it is?) and I am taking the MMM, DOWN!
So what is my biggest beef with our friend the MMM? Mostly that s/he is telling everyone, including doctors, things about surrogacy that are so totally wrong people think surrogacy is not an option for them when in fact it may be a very viable option to become a parent. For some of us, surrogacy is our ONLY option to become a parent, and in this case MMM is doing the greatest disservice by making people believe that unless they MOVE half way across the good ol’ USofA they won’t be able to have a baby (and yes, one person with whom I spoke recently was told he would have to move to a different state in order to become a parent).
Before I begin my discourse and try and simplify these issues so you have the basics under your belt, I want to state for the record that I have no clue who or what MMM is or why all of this wrong information is circulating. Nor do I think MMM is one person. Rather, I think MMM is a combination of information being provided by physicians and their staff, people’s well meaning friends, and the Internet.
We know we all have to be careful about what we read on the internet (including this blog, don’t rely just on me, if you want to pursue surrogacy please find a good reproductive lawyer, find out what laws are going to apply to your individual situation and then start the process). So if you are reading this because you’ve had a web-based MMM encounter, I’ll do my best but I don’t know what you read and where you read it.
With respect to what our friends tell us, if your MMM experience came from a well-meaning waiting-room compatriot . . . well my attitude about that is that unless they actually went through it, they know Bubkis (Yiddish or born and bread NY’er for: “nothing”, “jack sh-t”, or “less than nothing”). And even then, when I say went through it, there is a vast array of what people think they “went through” as an infertile person. There is nothing more annoying than the person who goes on an on about how hard their battle with infertility was and how painful, expensive, and emotionally demanding it was (as you listen and think “OMG I’ve finally met someone who ‘gets it'”) and then you find out they did two IUI’s and conceived twins and are back for number three. Whereas you did 5 IUI’s and are on your third IVF cycle and also have had a miscarriage somewhere in there and, you’re still trying for number one! (BTW, doesn’t that just drive you crazy, those people who did one or two IUI’s — and who no doubt suffered — and who think they know how you feel; who think they have a clue how hard infertility can be?!?). So in this context I am not just talking about infertility, I mean surrogacy, and unless your “friend” had a child or attempted to have a child through surrogacy you have most definitely had an encounter with MMM.
With respect to information provided to you by a physician, here I must tread carefully. All I can say is that yes, you have had an experience with MMM. As noted above, in this blog I am addressing the legal issues because I am a lawyer. I defer medical issues to dr’s because even when I put on my “white doctor’s coat” (ala The Infertility Survival Handbook), I acknowledge that I did not go to medical school or become a licensed, board certified reproductive endocrinologist and thus should not be considered to be providing medical advice or information (although the book was read by three physicians before going to print). Just as I will not talk about medical issues to which I may not have full and complete information, I don’t think doctors should be giving you legal information. Some of my colleagues and I have a real “thing” about how frequently doctor’s do and say things that constitute practicing law without a license. It’s MMM at its most annoying (and personally offensive).
What MMM myths do I need to dispell or simplify? Well let’s start with what is annoying me the most and what I know most about: surrogacy in NY.
Contrary to the MMM you have heard, you CAN do surrogacy in NY!! However, MMM is definitely impacting people’s ability to do it as many clinic’s are so afraid of surrogacy laws in NY that they won’t even discuss it or do an embryo transfer even in a completely legal, uncompensated compassionate surrogacy arrangement. What you cannot do (and dr’s should not do) is an embryo transfer within the State of NY when your surrogate (a/k/a gestational carrier) is being compensated and lives in and will deliver in NYS. A NY State resident cannot carry a baby for another NY State resident for compensation above and beyond limited pregnancy-related expenses (please talk to a reproductive lawyer, adoption attorney, or family lawyer about what expenses are considered “pregnancy-related” and would be permissible under NY law). If you have a friend or family member who is willing to carry a baby for you for free that is amazing, and legal. If she needs reimbursement for pregnancy-related expenses that MAY be okay, depending on the type of expense and the amount (this where you need legal advice). I typically am very strict about whether or not these expenses can be paid; I am very conservative because I don’t want anything to cause problems when I am getting birth certificates and just like every where else in the world we go, you get the wrong judge and what you know is legal, permissible and you have even done before, THIS judge won’t let you do! Indeed, I was reading an article written in The Family Advocate, a magazine published by The American Bar Association for its members, written by my colleagues Diane Hinson, Esq., & Maureen McBrien, which addressed the status of surrogacy laws around the country, and they printed a quotation from another reproductive lawyer that made me laugh out loud: “[a]s one ART attorney put it, the result in any given case can depend on ‘which elevator button you need to push at the courthouse.'”
So the bottom line in NY is that if you have a friend or family member who will carry a baby for you, who will be your surrogate, you can enter into a surrogacy arrangement with her. She cannot be compensated or paid the way surrogates are in many other states, but depending on circumstances, she may be entitled to reimbursement of minimal expenses directly related to the pregnancy. You also can obtain birth certificates with your names on them. You will need legal documents before you can do the embryo transfer and it is very important you have these documents prepared. However, the documents you will have prepared are different from gestational carrier or surrogacy “contracts” and are not enforceable the way surrogacy contracts are in certain other states. That said, the documents your attorney will prepare for you can be very helpful if something were to go wrong during the pregnancy or after birth, and may also help your attorney get the birth certificate. Every attorney has their own practices and procedures (in every state), so you may want to interview a couple of attorneys to find one whose personal practice make you feel the most comfortable.
One issue you may have, however, is finding a doctor in NY to perform the embryo transfer even when you are doing a compassionate surrogacy like that which I have been describing. Unfortunately, due to the power of MMM, some clinics are electing NOT to do any embryo transfers under any circumstances or fact patterns, period. They are losing business by taking this position and it’s sad when you have been working with a clinic for years and they tell you that you need a surrogate, your sister agrees to carry the baby for you for free, and your beloved doctor refuses to do the embryo transfer. I am so upset by this increasing trend that I have on my (way too long) “To-Do” list, to write a white paper or perhaps law review article on why doctors are wrong to take this position.
However, in my opinion doctors may not be wrong in declining to perform embryo transfers in the State of NY when the surrogate is going to be compensated, or paid when she resides in a state in which surrogacy is legal. If you have found a surrogate in Illinois, a State in which surrogacy is legal and reasonably easy to do, you likely cannot bring your Illinois surrogate to NY to do the embryo transfer at your clinic even if this is where your embryos are stored. There are a few clinics that may do the embryo transfer if everything about the surrogacy is legal in another state, in this case Illinois, but arguably because you are a NY resident and the embryo transfer is taking place in NY, a doctor might be found to be violating NY’s statute against facilitating paid surrogacy arrangements. Arguably, this statute was meant to apply to paid surrogacies taking pace within the state of NY (not Illinois) but a your doctor may not want to risk a potential felony violation over an issue of statutory interpretation.
MMM aside, as a NY resident you also have the option of locating a surrogate in a state in which it is legal to compensate the surrogate (Connecticut is another example of a state in which compensated surrogacy is legal), and once you have all the appropriate legal documents in place, you can either have any frozen embryos transferred to CT or undergo the IVF cycle in CT with your surrogate undergoing the embryo transfer procedure. The baby will be born in CT and you will obtain a CT birth certificate with your names on it.
So let’s recap for NY’ers: MMM notwithstanding: it is not illegal to enter into a surrogacy arrangement. You can either find a friend or family member to carry the baby for you within (or outside of the state) New York or you can find a surrogate in another state, preferably a surrogacy friendly state, to carry the baby for you, and you will compensate the surrogate. Depending on the State, whether New York, Illinois, or Connecticut, you will need legal documents before the embryo transfer can take place; and the process by which you obtain birth certificates with your name on it differs between the states and even within a state (they can vary county by county and even sometimes Judge by Judge — this is why I cracked up over the elevator button quote; it’s beyond accurate).
You will need a reproductive lawyer in the state in which your surrogate is to deliver the baby to tell you what that process will be AND what needs to be included in the agreement you enter into BEFORE you do the embryo transfer (the surrogacy agreement or contract). Florida, for example, requires that specific statutory language be included in your surrogacy contract. BTW, another MMM fact to dispel. If you enter into a surrogacy in Florida, you are NOT adopting your baby. You are doing a surrogacy or gestational carrier arrangement just as you would be in Illinois or Connecticut (or many other states). The MMM on this issue stems from the fact that the surrogacy statute is included within the Florida Adoption Statute. Just because the surrogacy provisions are contained in the adoption statute does NOT result in or mean that you are adopting the baby, your baby, which your surrogate delivers in Florida. A reproductive lawyer in Florida can explain this process in greater detail.
Wherever you live, whether NY or another state, MMM has led to lots of confusion over what you can and cannot do with respect to surrogacy. NY’ers are, I think, experiencing the most confusion right now. Hopefully statutes will be passed in the next year or two that will make almost all forms of surrogacy legal in NY, and which will permit NY’ers to stay in NY to have their babies via surrogacy. A member of the NY legislature, Amy Paulin, has introduced a bill that will make surrogacy legal in NY. She needs help from her constituents and other residents of the State of New York, so if you are interested in helping another state become surrogacy friendly, please seek her out on FaceBook (she specifically requested that people post to FaceBook) or send her a letter in support of her efforts. Please, for me??? FaceBook, quick post, Go Amy, Go Surrogacy, Go NY!
Surrogacy is easy in many states, but due to MMM many people are confused over the process, the steps involved, and the cost. Some of the confusion is well-founded. As noted above, in some states it can depend on the Judge to whom you get assigned which will determine how easily you will obtain a birth certificate or whether it can be done pre or post birth. Many states have set procedures by statutes, others rely on cases decided by Judges, and still others prohibit it altogether or prohibit certain aspects of it. Traditional surrogacy (where the surrogate uses her own egg to become pregnant) is illegal in many, many states and if you enter into this type of surrogacy you may well have to adopt the baby in order to legalize your parental rights; and you are still at risk for the surrogate to assert parental rights as it is her genetic material she is carrying.
The questions you need to ask are as follows:
Is surrogacy legal where I live, and if so what restrictions (if any) are there on the process, what documents do I need to have prepared before embryo transfer, and what steps need to be taken to establish my parental rights? If using an egg donor in addition to a surrogate, does that impact any aspect of the process? You may for example, need to do a second-parent or step-parent adoption in the state in which you live in order to establish the parental rights of the non-genetic parent. Do not rely on anyone other than a reproductive lawyer, adoption attorney, or family lawyer to answer these questions for you. MMM runs rampant in this area of the law and in fact, the law changes fairly quickly so what may have been true a few years ago, if told to you now, may well result in a run-in with MMM. Other blogs I have written have addressed the questions you need to ask or legal documents you need to have prepared when entering into a surrogacy arrangement in greater detail than I did in this post. If you are considering surrogacy, you may want to explore those posts for additional information.
There is a wealth of information that you need as you start on this path, topics we haven’t touched on are issues related to insurance and escrow or trust account management. These subjects are less frequently discussed (and extraordinarily important) so less often subject to MMM encounters. I plan on blogging about them and am working on an series of books to demystify third party assisted reproduction in general.
But whatever you do, don’t take what people (even your doctor) tells you at face value! The Masked Marauder of Misinformation is just as stealthy as the NOvary! I am so jaded that I sometimes feel like a client is describing an MMM encounter from a friend who does not want my client to have a baby and thus has filled his or her head with utter nonsense out of nothing other than jealousy (how sick and twisted am I?) Or, political issues within a reproductive practice are causing a client to draw assumptions about surrogacy — MMM that surrogacy is illegal because her clinic won’t do an embryo transfer to an uncompensated surrogate — that are just plain wrong!
Beware the MMM. There are so many options for becoming a parent through surrogacy that odds are you can find a way to do it. Don’t believe everything you hear! Got a question, get an answer, just make sure it’s not from the Masked Marauder of Misinformation!!
Filed under: Birth Certificates, Birth Orders, Current Affairs, In the News, IVF, Parentage Orders, Personal Musings, Pre-Birth Orders, Questions about the Office, Sam Sex Parenting and Reproductive Law, Same Sex Parenting and Reproductive Law, Surrogacy in New York, The Journey to Parenthood, Third-Party Assisted Reproduction, Uncompensated Surrogacy
Tags: adoption, Birth Mother, birth orders, embryo transfer, escrow, gestational carrier, infertility, IVF, Parentage, pre-birth orders, state laws, Surrogacy, surrogate, trust account