Archive for the ‘Sam Sex Parenting and Reproductive Law’ Category
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:
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
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
March 28, 2011 | By: Liz
I am getting over a pretty nasty bought of pneumonia. And as a result, I have had a lot of time to think.
To think about everything that I should be doing in the office but can’t. To think about everything that I need to be writing: my e-book on egg donation is pretty much finished but I haven’t had time to input the final edits or to speak with my design and production team about getting it ready for the marketplace; I have an article on egg donation and surrogacy contracts that is due to the American Bar Association in a matter of days; I have to talk to my publisher about revising The Infertility Survival Handbook; I want to write a blog about a RESOLVE event I co-hosted on March 24th at Bis.Co.Latte Cafe in NYC regarding the legal issues egg and embryo donation; and oh yeah I am supposed to be teaching a class on third-party assisted reproduction at a law school and I have to prepare the syllabus (that one may not happen).
To think about all the contracts that I need to draft and edit for clients.
To think about the new series of blogs I am working on (perhaps it too will become an e-book?) on the mind-body connection in dealing with and resolving infertility. Thanks to a Facebook friend, I discovered a wealth of information on something called “Conscious Conception.” I have a ton of research to do on Conscious Conception, it is a seed germinating in my mind and something I very much want to talk about. Just this morning I was staffing out work in the office and we got into a long conversation about how much I believe faith plays in people’s ability to deal with and overcome fertility.
And yet, all I am capable of on this gorgeous sunny day is to THINK about the overwhelming amount of things that are filling my proverbial plate. I am utterly and completely without the ability to deal with any of it today. For today my goal is to be able to breathe. One of the fundamental things in life which I must attend to if I am going to get back to these things, yes? Yet, instead of recognizing the very important need to take care of my own health, I have been beating myself up for my inability to do my work. I feel like I am drowning, literally and figuratively.
It was only upon stumbling across an issue of the Wellesley Alumnae Magazine and its cover article about “When Life Doesn’t Measure Up” and reading about how, when and why so many of my fellow Wellesley sisters feel like failures, that I realized that I feel like a failure for having pneumonia and not being able to do my work. And with that thought, I was off and running on a journey of self-analysis that of course brought me right back to the world of fertility and the feelings of failure that come with it.
Apparently, my college magazine conducted some kind of a poll asking graduates to discuss their feelings about their satisfaction with their life and feelings of inadequacy, failure, or success in a variety of different contexts. I don’t recall receiving a questionnaire in the mail or an email like this — must have missed out on contributing my own thoughts to this very profound poll. The reasons women gave for feeling like a failure were incredibly diverse. And yet, despite the very diverse reasons or situations my Wellesley sisters gave when describing their own issues with failure, including dealing with chronic illness, the article did not mention infertility or an inability to have children (or the choice not to have children) as raising issues of failure. Certainly, someone among the thousands of Wellesley graduates has experienced difficulties conceiving and must have felt like a failure. I did. I do. Why didn’t someone else talk about it? The Dixie Chicks talk about it in their song “So Hard” . . . a ballad that haunts me every time I hear it. It’s all about the feelings of failure and loss we have when we can’t conceive. One out of every 8 Americans is dealing with infertility. Why didn’t the Wellesley College Alumnae Magazine talk about it? Especially at an all women’s college, you would think that a topic like infertility and failure related to something so integral to being a woman would be recognized and not continue to be shrouded in secrecy. The article talked about the shame my sisters felt about their various failures, the secrecy that surrounded them but infertility was not among them. What gives?
The secrecy and shame surrounding infertility is pervasive. Just as for my sisters who are wrestling with their own failures of a different nature, the article pointed out that all of them felt better by talking openly in the article about failure and its impact on their self-perception.
Indeed, the magazine itself was often a cause for Wellesley alumnae to feel failure. By hearing about the success stories profiled in the magazine many women admitted that they felt that they had let down the school or that they failed to measure up to the “Wellesley standard” of being or becoming another Hillary Clinton. The article concluded with the following statement:
“But maybe what we don’t know is what failures happened to those women before they became household names that eventually brought them to the point of celebration. And until we hear those stories, too, we can’t begin to make new templates for success that acknowledge the inclusion of failure as part of a life well-lived.”
And this leads me to the following conclusions:
Until we hear stories about our feelings of failure and inadequacy arising from our infertility, and our subsequent success at overcoming them, we cannot begin to make those new templates for success that acknowledge how much stronger or sensitive we have become as a result of our infertility.
Until we hear stories about our feelings of failure and inadequacy arising from our infertility, we cannot begin to find faith that our own journey will end in success. We need to be inspired by the success of our sisters (and brothers) who have gone before us and achieved that which we long for — a baby — even if that success means embracing an alternate route to parenthood such as surrogacy, egg or embryo donation, or adoption.
It is, as my Wellesley sisters say, in embracing the loss in which we gain the faith to succeed. I wish there was no stigma to being infertile but I must confess that the lack of mention of infertility in this article really drove home for me the sense of the overwhelming stigma with which we live. I have a serious issue with the Wellesley Alumnae Magazine for not bringing to light a discussion of how failing at something as intrinsic as becoming a mother can be so devastating to our sense of self-esteem, to our marriages, and to our sense of failure as a woman. (I cannot fathom that not one woman responded to that poll and didn’t mention infertility and if that was the case, I am even more troubled by the statement that makes regarding how much we hide about our infertility).
Learning from others who share their own shame or other sense of failure about something with which we are all supposed to be able to do — conceive, carry and give birth to our children — is what will carry us through. For others it is not necessarily biological or medical failure but a sense of frustration at being unable to conceive because we lack the essential components — we are socially infertile. And learning from others who find ways beyond our social infertility will give us ideas and strength for achieving that which our sexual orientation precludes us from obtaining.
And as the wheels started turning and hit overdrive as I considered the article and my own sense of failure because I have pneumonia and am unable to work (and am thus letting down my clients to whom I truly want nothing more than to help have a child), and considered once again the stigma with which we live, I couldn’t stay silent. I pulled out my laptop and curled up in bed to “think through” this article and my situation and put together the pieces of this puzzle. My blog will now not only be devoted to discussing the concepts behind Conscious Conception, but it will be devoted to de-stigmatizing this disease. I know there is a Wellesley sister out there somewhere who is struggling to defeat the NOvary™ or endometriosis, to locate a birth mother, to navigate the increasingly complicated red tape of Ethiopian adoption, or to find a way to establish the fact that she and her partner are both the legal mothers of the child one of them delivered and which they intend to parent together.
So in my failure of having pneumonia, new ideas and inspiration have been born for my blog and thus my day has turned into one of celebration. And I ask you to please not be silent. I took the pledge with RESOLVE not to remain silent and today my failure in being human and having pneumonia has given me an idea of how I can fulfill my pledge to RESOLVE. My blog is a safe place where I hope to support people walking with me on this path, and to provide the occasional nugget of legal or medical information to move us another step forward on the path to parenthood. And thus I ask you to talk about your shame. Talk about your sense of failure. Talk about your frustration, your anger or confusion. (And if you are a Wellesley alumnae, help me convince them to let me write an article about infertility). Share your story here wherever you may be in your journey. And I will try and find people to share with you how they conquered the NOvary, endometriosis, found birth mothers, survived the red tape of Ethiopian adoptions, or proven their joint parentage.
Because I know that if we continue to be silent and give in to this crazy stigma, we will never know what failures happened to those women (and men) among us before they became mothers (and fathers), and that eventually brought them to the point of celebration. And until we hear those stories we can’t begin to make new templates for success that acknowledge the inclusion of infertility as part of a life with children.
And now for some random FAQ’s and reminders:
Yes, you can establish your parentage if you are a same-sex couple and one of you has a baby. Depending on where you live the mechanisms for doing this will vary. In some states you can file a legal action to have your parental rights established, in other states you may need or want to adopt (even if you are not married). In some States and in some circumstances you may need or want to do both.
If you have a functioning uterus, egg donation is perhaps the most successful route to pregnancy for women who have issues with the NOvary™. At many clinics, with a properly screened egg donor, live birth rates per egg donation are in the 60% range. Yes, you read that correctly, you could have a 60% chance of conceiving a baby using an egg donor. And among those that conceive using an egg donor, the rate of twin conceptions is in the 40% range (making a strong case for single embryo transfer).
If you are considering adoption but have financial concerns or are worried about wait times, relinquishment risks, or red tape, embryo donation is a rapidly growing path to parenthood. Using embryos donated from another family who has cryopreserved embryos which they no longer wish to use to build their own family, you may have a 40% chance of conceiving a child. In addition to the affordability of embryo donation and the high success rates, you have the opportunity to carry the child, control the uterine environment, and may have the ability to conceive more than one child (this will depend on the type of embryo donation you enter into, as well as the number and quality of the embryos donated to you).
If you don’t have a functioning uterus, gestational surrogacy is another option for becoming a parent. Using either your own gametes (genetic material), or an embryo created from egg or sperm donation (or sometimes both), another woman can carry a child for you and you will have all legal and parental rights upon that child’s birth. Surrogacy laws vary by State, and it’s far from inexpensive, but when done correctly, surrogacy is a wonderful means of building a family.
And let’s not forget what is now almost considered boring: IVF. If you have a viable uterus, eggs and/or sperm but for other reasons have difficulty conceiving on your own, with the assistance of In Vitro Fertilization, your chances of conceiving get better every day. With the improvement of the culture medium used to nourish embryos, together with advances in reproductive medicine, some families will have as high as a 70% chance of conceiving. Although the vast majority of families using IVF will need more than one attempt before conceiving, this is a technology that should not be ignored.
Other things to consider are:
PGD, (Preimplantation Genetic Diagnosis). This enables you to select only those embryos that appear chromosomally normal for embryo transfer in an IVF cycle. For older infertility patients, those with a family history of hereditary illness, or those with recurrent pregnancy loss, PGD can increase your chances of conceiving a healthy baby.
ICSI, (Intracytoplasmic sperm injection). This is where doctors inject the sperm into the egg to help facilitate fertilization. For families with male factor infertility this can help side-step problems with sperm that might prevent it from fertilizing an egg.
DNA Fragmentation Assay. This is a test performed on sperm to determine whether the sperm are chromosomally normal. Although there is a large range of “grey area” where it is unclear whether the sperm are going to cause problems with conception or pregnancy loss, this is proving to be a very important aspect in solving cases of recurrent pregnancy loss, IVF failure, or otherwise diagnosing “hidden” infertility issues.
Blood Clotting Disorders and other immune issues. Do you have unexplained pregnancy loss or IVF failure (with an egg donor)? Go get a work-up from a hematologist or other doctor specializing in diagnosing harder to find infertility issues. Sadly many physicians routinely overlook or discredit the influence or impact of blood clotting and/or immune issues on the ability of an embryo to implant in the uterus, or to the ongoing development of a baby.
Are you going to stay silent, or are you going to talk with me here about what you are feeling, what you are trying to do to overcome your infertility, or what you did that helped you overcome it? Speak. If not here, then find somewhere. Please.
Filed under: adoption, Age and Infertility, Deadly Silence, Egg Donation, Faith and Infertility, IVF, Peace to Parenthood, Personal Musings, Recurrent Pregnancy Loss, Sam Sex Parenting and Reproductive Law, The Journey to Parenthood, Thinking Out Loud, Third-Party Assisted Reproduction, Treatment, Uncategorized