Sherri Shepherd’s Surrogacy Battle and the View from the Other Side.

March 16, 2015 | By:

Sherri Shepherd.  Who hasn’t heard her name recently?  The former host of The View is in the midst of a major lawsuit with her ex-husband over her son.  She claims she doesn’t have any responsibility for the child she helped bring into this world.  REALLY??  Is she serious?  Sadly, yes.  And she’s leaving this issue — what could be a ground-breaking decision in the laws pertaining to third-party assisted reproduction — to a Judge to decide.  She couldn’t work it out privately with her Ex.  Nope, she had to go to Court.

I used to like Ms. Shepherd.  She spoke on behalf of the infertile.  She was our advocate.  She was one of the very few public — celebrity voices — speaking about the pain of infertility.  I am trying to have faith in our judicial system right now because Ms. Shepherd has destroyed my faith in the power of the infertile woman.  What she is doing, is to me, disgraceful.  Wow!  I guess I am angry.

I went to a benefit a few years ago for RESOLVE.  It was its annual Night of Hope and Ms. Shepherd was receiving an award for raising awareness about infertility.  She gave a moving speech about the pain we go through when we cannot conceive without medical help — without help from third-parties.  She moved me to tears talking about how much she wanted a baby and to be a mother and how sad she was every time her fertility treatment failed.  It was very clear during that speech that she wanted nothing more than what every other infertile woman wants, a BABY.  And now she’s trying to dump the responsibility for that baby — that longed-for, hoped-for, much-wanted baby — on someone else.  And that someone else is her egg donor or surrogate, that third party without whom she and Mr. Sally would not have conceived, and realized what she said was her dream.  Her dream of becoming a mother.

Many of us don’t realize that dream and that’s why I find her actions to be such a slap in the face.  To go from being a proud infertile woman putting one foot in front of the other and thanking her fertility specialist (I can remember his name) for helping her, to dumping responsibility that is rightly hers on the people who helped her achieve that dream.  That’s just wrong.  It is morally wrong and it is legally wrong.  I am going to stop discussing the moral component of it because I get the fact that there are people in this world for whom I hold little or no respect.  But from a legal standpoint, what she’s doing is profoundly dangerous and could potentially turn reproductive law upside down, and erase years of progress helping women just like Ms. Shepherd become mothers.

I should comment that I don’t know many details about Ms. Shepherd’s egg donation arrangement or surrogacy arrangement.  But if she’s litigating this issue in Pennsylvania then I am guessing her surrogate is a resident of the Commonwealth of Pennsylvania and that the laws of that Commonwealth govern the surrogacy agreement.  The thing is, there isn’t really any law in Pennsylvania when it comes to third-party assisted reproduction.  There isn’t a statute governing third-party assisted reproduction and when there isn’t a statute governing the actions of intended parents like Ms. Shepherd and Mr. Sally, the laws of third-party assisted reproduction typically look to the intent of the intended parents (Ms. Shepherd and Mr. Sally) prior to the conception of the child.  Typically those intentions are spelled out either in an egg donation agreement or gestational surrogacy agreement (or both), or in some cases through consent forms signed by an egg donor at the fertility clinic at the time she donated her eggs.  But the bottom line is that there is some written statement that the egg donor does not want to have parental rights to any child conceived from her donation, and that the intended parents want to have parental rights and all the responsibilities that come with parenthood for any child conceived from the donation of eggs by the donor.  Similarly, the intended parents (Ms. Shepherd and Mr. Sally) would — and in this case did — enter into a gestational surrogacy agreement which would clearly spell out that the intended parents (Ms. Shepherd and Mr. Sally) were going to be the parents of the child the surrogate carried, and the surrogate would not have any parental rights.  A well-written agreement would address what would happen in the event the intended parents divorce prior to the birth of the child.  Typically the intended parents are still the parents even if they divorce but maybe her agreement says something different, or is silent on the point.  But the bottom line is that in order to have conceived this child, Ms. Shepherd’s egg donor waived all parental rights and Ms. Shepherd assumed them; and Ms. Shepherd stated her unequivocal desire and intent to be a parent of the child her surrogate was carrying and her surrogate expressed no desire or intention to ever be the child’s parent.  I would be shocked if the legal documents at issue in her case don’t refer to the parties’ intent about who were going to be this child’s parents.  Ms. Shepherd claims she was defrauded into entering into the agreement.  I find that hard to believe given the years of infertility treatment she went through and the statements I heard her make that night at RESOLVE.  I think she wanted this baby.

The question is whether the Judge will uphold the terms of those documents or contracts.  And that is where I get scared.  What if the Judge decides that the agreement with the surrogate is unenforceable for some reason and that Ms. Shepherd isn’t legally responsible for this child, that she isn’t his mother?  What then?  Does any intended parent get to change their mind when they one day decide that they don’t want to be a parent anymore?  Where does that leave the law of intent as it informs decisions related to third-party assisted reproduction?  Is the intent of the parties what governs the determination of parentage or is a gestational surrogacy agreement or egg donation agreement just another contract that can be thrown out of court on technical or some other grounds?  Decades of law pertaining to third-party assisted reproduction are at risk.  All the hard work my colleagues have done to make it possible for Ms. Shepherd even to consider having a child through third-party assisted reproduction could be damaged, even worse, destroyed.  Will Pennsylvania remain a surrogate-friendly state?  I get sick thinking about it.

Ms. Shepherd has crossed over to the other side, that of becoming a parent after battling infertility.  And apparently she doesn’t like the view so much.  I get the fact that Ms. Shepherd is angry at her ex-husband.  I get the fact that she doesn’t want to be in this child’s life.  I may not agree with her moral positions but legally I am horrified at the way she is going about getting out of her obligations as a parent.  What she is doing has the potential to set the law back in ways so significant as to preclude other infertile women and men from having a child through third-party assisted reproduction.  I am at a loss to understand how someone who was such a staunch advocate for the infertility community and who so desperately wanted a baby could get to a place where she wanted to put the rights of so many others like her at risk.  I cannot fathom why someone would risk establishing a legal precedent that could jeaopardize the rights of so many just like her.

This all begs one question:  What would Ms. Shepherd have said three or four years ago about someone taking the position she is taking today?  Probably nothing nice.

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Successful Surrogacy in New York: Myth or Reality?

March 5, 2015 | By:

Successful Surrogacy in New York

Myth or Reality?

 Most people think surrogacy is illegal in New York. This is true, in part; but it’s not completely true. I have tried demystifying this topic, but confusion remains despite my best, and repeated efforts.  So let’s try again because there are a lot of people in New York State who need to use a surrogate to build their family and they should know the scoop on surrogacy.  And there are a lot of women interested in carrying a baby for another couple or parent, who would like to be a gestational carrier or surrogate but don’t know what rights they have under NY law (please note I use the terms surrogate and gestational carrier interchangeably except where otherwise noted).

There is no doubt that we, as New Yorkers seeking to build a family and we, as New Yorkers in the family building business, are at a HUGE disadvantage when compared to states like Connecticut and California, or Illinois or Massachusetts where surrogacy is legal and perhaps even governed by statute. But that doesn’t mean we don’t have options. As a prospective or intended parent you can enter into a gestational surrogacy relationship, you just need to know when and how you can do it. As a lawyer or doctor, you can certainly help people have babies through surrogacy, you just need to know what aspects of your role in this family building process are legally proscribed or permissible. (This blog addresses only those aspects of family building through surrogacy for prospective or intended parents or gestational surrogates.)

The three biggest myths surrounding surrogacy in NY are:

Myth Number 1: Surrogacy always is illegal in New York

Myth Number 2: Traditional Surrogacy is illegal in New York

Myth Number 3:  NY will not recognize a surrogacy relationship entered into in another state.

 This blog will debunk the first myth that surrogacy always is illegal in New York.  Subsequent blogs will address traditional surrogacy, another type of surrogacy where the surrogate uses her own egg to help conceive a baby for prospective parents, and what happens when NY courts get involved in enforcing or recognizing gestational carrier arrangements made in other states.

So back to our first myth.  Only certain types of surrogacy are illegal in New York, not all surrogacy. As a NY resident and intended parent you:

(1)  cannot pay another NY resident to carry a child for you; and/or

(2) enter into a contract for that NY resident to carry that baby deliver in NY.

Any contract for a compensated gestational carrier/surrogate who resides in the State of NY and will deliver in the State of NY violates NY law.  The contract itself is illegal and unenforceable and the compensation is illegal.  Drafting the contract and matching the prospective parents with the surrogate also happen to be illegal but that gets us more into the work that attorneys and doctors perform with relation to gestational surrogacy.

A NY prospective parent,  however, can enter into a contract to have someone outside of NY carry a baby for them; and they may compensate that gestational carrier (provided of course she lives and will deliver in a surrogacy friendly state–more on this in a moment). So let’s break it down to what is illegal:

            Paying a gestational carrier in NY to carry and deliver a baby in NY.

            Entering into a contract to pay the gestational carrier in NY to carry and deliver the baby in NY.

      I have oversimplified this a bit, but I think you get the essential points.

No contract, no payment.

Prohibitions aside, if you are a NY intended parent and need to use a surrogate, or you are interested in becoming a gestational surrogate you have very doable options:

You can have a friend or family member act as a gestational carrier for you, or you can carry a baby for a friend or family member, as long as there is no compensation.  This is called “compassionate surrogacy”.  Strange as it may seem, this happens more frequently than you would think and more women are willing to help their friends and family members by acting as “compassionate gestational carriers” than you might expect.  If you are a prospective parent, don’t write-off this option just because you can’t think of anyone who would do this for you.  You might be surprised to find out that your sister-in-law or best friend from college would be willing to carry a baby for you, and expect or want nothing in return.  Some things to conisder about compassionate surrogacy:  Of important note, you cannot have a contract in this type of relationship, but you do need legal documents prepared before the baby is conceived which explain the process and the laws of the State of New York as they apply to compassionate surrogacy.  This legal document, albeit not an enforceable contract, will discuss the parties’ intent to conceive a child through third-party assisted reproduction, explain how the intended parents’ parental rights will be established and when the surrogate’s parental rights (and her husband if she’s married) will be terminated as she will be deemed the child’s birth and legal parent at the time of birth (as will her husband), and how and when a birth certificate will be issued with both intended parents names (assuming there are two intended parents – it could of course just be a single prospective parent).  That’s a quick summary of compassionate surrogacy and NY.

You also can look for gestational carriers in surrogacy friendly states – outside of New York.  In those states you can compensate the gestational carrier (it usually is easier to find a gestational carrier who will be compensated than one who will do this out of love and affection and without compensation), and enter into a binding, enforceable contract. In many of these states you can get a pre-birth order that identifies the prospective or intended parents as the legal parents from birth and relieving (for lack of a better word) the surrogate of any parental rights or obligations she does not want to have.  Other states permit you to obtain a post-birth order that identifies the intended parents as the legal parents for purposes of the issuance of a birth certificate with their names on it. Sometimes, a non-genetic parent (for example, when an egg donor was used, or for same-sex couples where one parent may not be genetically related to the baby) may have to enter into a step-parent adoption when they get back to NY, but that isn’t a huge burden if you have found a wonderful surrogate.

There is no doubt that the laws as they pertain to surrogacy both in and outside of NY are complicated and can be overwhelming, but that doesn’t mean you can’t do this. It is simply a question of who will carry your baby. If you have a friend or family member who is a NY resident and who wants to carry a baby for you, as long as you don’t pay them money to carry the baby it is legal to enter into surrogacy arrangement. If you don’t have a friend or family member willing to carry on a compassionate (uncompensated) basis, then you need to go outside the borders of NY and find a surrogate whom you will compensate.

For more information on surrogacy-friendly states (NY is, of course, not considered surrogacy-friendly because you cannot compensate a gestational surrogate), and for more information on the laws of other states that might help you locate a surrogate check out this website:

http://creativefamilyconnections.com/surrogacy-law-by-state/

 

Nothing in this blog is intended to, nor shall it be considered legal advice.  Nothing herein shall be deemed to create an attorney-client relationship.  The contents of this blog are for informational purposes only.

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Never, Ever Give Up

October 29, 2014 | By:

Today is one of those days where I wish I could make all the hurt and pain go away for one of my clients.  For today, everything seems to be falling apart on their path to parenthood.  The thing is, I cannot count the number of clients I have had who have been in similar situations — afraid that they had run out of options or run out of money — and we found a way, they perservered for another day and then another day after that until I got the glorious news that they finally had a baby on the way (whether through egg donation, surrogacy or adoption).

With everyone of those clients I refused to give up, I refused to let them give up.  Because I have seen so, so many of those “never gonna happen to me/us” situations have a happy ending.

More to the point, I have spoken with so many of those parents who, in the end, were grateful for all the mishaps, all the donors who changed their mind or were screened-out, the changing of surrogates after two failed embryo transfers with only one embryo left . . . whatever the situation was (and there are so many I am not even going to begin to try and describe them all–you know how hard this can be), every single time when I got the call to tell me the joyous news, my client express grattitude for all the mishaps.  GRATTITUDE.  Because but for those mishaps, they wouldn’t be holding THIS baby, at this moment, and they couldn’t imagine not having THIS baby.

This happened to me too.  Had one of our adoptions not been disrupted (as in the baby went back to its birth mother after placement), I wouldn’t have the family I have today.  I loved that baby but I love THIS family more.

Whatever happens on your path, whenever you have a crappy-puts-you-over-the-edge-you-can’t-take-it-anymore-this-is-never-going-to-happen-for-me kind of day, remember that tomorrow is a new day with a new opportunity.  That there are more options and more choices, you just have to keep looking and putting one foot in front of the other.  It may suck today but one day, it might all actually make sense.  At the very least, one day you will know that but for all that came before, you wouldn’t be holding THIS baby.

So this my advice for today:

Never, Ever Give Up.  At least that’s what the sign above my desk says, and I believe it says it all.

(I like this necklace too)

never ever give up hope

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