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A Book on Adoption By Emily Giffin — and i’m too scared to read it!

July 30, 2012 | By:

Everyone who knows me, really knows me, knows I am sucker for all things Emily Giffin (I mean we have sooo much in common . . . you do know I said that tongue in cheek right?  although the similarities in our lives, associate in a big law firm turned author of best selling book . . . although admittedly she’s had slightly better publishing success than I), and that I like Danielle Steel too.  There I have outed myself.  Chic lit and romance novels are my thing.

But Emily Giffin’s new book, Where we Belong, has adoption and reunion of birth mother and adoptee as it it’s theme.  I respect Ms. Giffin tremendously.  She did a fantastic job addressing infertility and child bearing in Baby Proof as noted in a previous blog; and I understand from discussions with colleagues that Ms. Giffin interviewed reproductive lawyers and perhaps other professionals in the world of ART in order to properly address issues of infertility in Baby Proof.  So I’m guessing that she probably did a really good job researching adoption and is nothing but politically correct, sensitive and thoughtful when writing about this very delicate topic.  (If it’s okay by you, I’m just going to call her Emily.  She is after all my soul sister.)  I see on Emily’s FaceBook page that people are asking her if she will do a sequel so it must be good.  But are any of those people who are asking for a sequel part of an adoption triad or an adoption professional????

I have read so many books and articles that are written by people with good intentions but nonetheless totally botch the job when it comes to adoption language and/or addressing the emotions and feelings that come up for people in adoption triads.  I won’t mention the titles here — why bad mouth a book you might enjoy — but I have had to put a couple of them down and just agree to disagree with the author.  Anyone who knows me also knows that once I start a book I HAVE to finish it no matter how bad or boring is the tombe.  I am that anal that I will force myself, yes force myself, to finish something I hate.  Even on a beach on a vacation, I will force myself to gut through the last few pages of a book which I think is really awful.  So I am very careful these days about what I will read.  Knowing that I am committed from start to finish I only can choose books that I feel will truly entertain or enlighten.  And thus, I do my research and read reviews and blogs (and FaceBook pages) to see what people think.  So far, Where We Belong gets amazing reviews.  And yet, I won’t download it to my tablet or buy it  . . . what’s up with that?

I guess I am really afraid that Emily will hurt me or bring up emotions that I would rather not face.  I am after all, an adoptive mother and one who feels very strongly about the use of positive adoption language and who wishes that adoption came without bittersweet feelings or even shall we say, threatening feelings.  I worry about legislation that will open adoption records that currently are sealed and thus create a greater potential for dramas like the one portrayed in Where We Belong to unfold for my friends.  (btw, I “get” both sides of the argument to open adoption records, and while I have my own opinion on this topic I do respect those who don’t share it, so please don’t spam me on this particular topic, I leave this up to legislators and their constituents to figure out whether it’s right or wrong, good or bad).

I also really care about the birth mothers I have represented and knowing what they go through, I can only imagine how they would feel — especially those who wanted a closed adoption or less contact with the adoptive family — if one day the child they placed for adoption knocked on their proverbial door.

And please let’s also be clear, I hate the term “gave up for adoption” . . . this term runs rampant throughout reviews of Emily’s book so I am worried she uses it IN the book.  Please remember that this is a decision someone makes and it is NOT an easy decision for anyone.  Birth mothers have “placed” their child for adoption, a term which hopefully is more respectful of their decision to enter into an adoption, as opposed to “gave up” or “give away” which makes it sound like babies are a commodity and birth mothers don’t care about what happens to their baby.  “Gee, I think I’ll just give this baby away today . . . ”  I think NOT.  I hate this terminology and while I never know what is right or wrong and often worry about what words I use with my own clients and in my family, I really don’t think this one particular term is respectful to birth mothers.

And as I have recently discovered it’s not even politically correct to call my clients who are considering making an adoption plan for their baby, a birth mother.  These women now request or prefer to be called “emoms”.  An emom is a woman who is expecting a baby and is considering placing her baby for adoption.  I would strongly suspect that emoms don’t consider what they are thinking about doing (emphasis here on thinking) to be “giving up” or “giving away” . . .  This is such a highly charged issue with advocates for both terms that I suspect just by talking about this language I am going to get a ton of hate email.

And I have already upset myself thinking about adoption language and whether Emily used it appropriately . . . As a result of my discussion of terminology I have relived allot of what my own family, and our adoption triads, have gone through, as well as some of the adoptions my office has handled . . . I can’t even write a blog about this topic without getting myself upset and disjointed, so how am I going to do reading this book?  And I HAVE to finish it if I start it . . . And yes, I know that’s ridiculous and nutty and if I don’t like a book I should put it down, but that’s just not ME people.  I am nothing if not thorough (and loyal) right through to the end.

F*&^k.  I love Emily’s work and I feel I have a professional obligation to read and review this book.  And yet I am scared sh!tless at the thought of reading it.  But read it I must.  Right? Wrong?

Crap.  What to do . . . stay tuned.

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Surrogacy Symplified — The Masked Marauder of Misinformation Unmasked!

July 28, 2012 | By:

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!!

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The “Pickable Factor”

February 10, 2009 | By:

 

Starting an adoption plan isn’t easy stuff for anyone.  Most prospective adoptive parents come to the process carrying a hefty amount of baggage.  Whether it is from infertility treatment, or being an “older” adoptive parent, or our marital status, most of us are really scared about what a birth family may think about us and who we are.  There is no doubt that the fear of rejection is daunting.  It’s amazing what we do to ourselves through this process.  How we compartmentalize our personalities and our features and try to “predict” what it is that might make us more appealing to a birth family or what might make us less “pickable”.  It has gotten so out-of-control in some respects that I now lovingly call it the “Pickable-Factor” or the “Pickable List.”

 

The Pickable Factor is anything that we think might disqualify us or make us less attractive to a birth family, ultimately causing her to choose another adoptive parent(s) over us.  Every one of us has our own list of “pickables” that we think will make our wait take longer.  I don’t care what is on your “Pickable Factor” or your “Pickable List”.  The Pickable Factor is a myth!  Birth families usually don’t care as much about what’s on our Pickable List as we do.

 

Now before you go dismissing me altogether, please keep in mind that I have been on both sides of the fence.  I am an adoptive parent twice over and I am adoption advocate and professional.   And I can count the number of times on one hand that a birth mother has “rejected” an adoptive parent because of a “Pickable-Factor.”   I don’t mean in any way shape or form to dismiss the fears that give rise to our list of Pickable Factors.  I do want to reassure you that most, if not all of the time, what we think is going to disqualify us or make it harder to be chosen by a birth mother are not really what birth families are focusing on when trying to find a forever home for their baby.  

 

Among those of us who may have even greater fears regarding rejection by birth parents are prospective adoptive parents who are cancer survivors or who have some physical disability.  You may think that having had cancer makes you somehow less “pickable” than another adoptive parent.  But in my experience, it really isn’t true. The right birth mother is not going to care about your medical history.  Just like the fact that she’s probably not as likely to care about your religion, or your age or anything else on the list you’ve created.  She’s going to pick you because of some inarticulable, beautiful quality in you, one that is completely separate and distinct from your medical profile.  Or, maybe she chooses you because of a random baseball cap you’re wearing in one of the photographs in your dear birth mother letter or your adoptive parent profile.  (And yes, it can be that random.)  My point is this, what most birth families want and what we think they want, are vastly different.  Your Pickable Factors are exactly that, your Pickable Factors, no matter how consequential you may think they are.

  

            I recently gave a seminar on adoption advertising.  Although the crowd was relatively small, it was a diverse group, including three women who are cancer survivors.  Two of these women have children through adoption and the third was waiting to be picked by a birth family.  One of the women was very open about her experience (we’ll call her “Adoptive Mom A”).  Adoptive Mom A talked about how scared she was that a birth mom would reject her and all the things on her “pickable” list.  Her greatest concern, however, was that the birth mom wouldn’t want to place a baby with her because of her history of cancer.  She also had been afraid that her age, her physical appearance and her religion would ultimately (and always) cause a birth parent to choose another adoptive couple.  Much to her surprise, however, she and her husband met their first birth mother within a few months of starting their search.  And they met their second birth mother – for their second adoption – fairly quickly too.  Surprising to her, neither of the birth mothers with whom she and her husband made adoption plans, cared about her history of cancer, nor her religion nor her age.  The other adoptive mom who is a cancer survivor, Adoptive Mom B, also spoke about what it was like to search for a birth parent with this (as she put it) “elephant in the room.”  When she and her partner finally met the birth mother who chose them to parent her baby, the birth mom didn’t ask a single question about the cancer even after Adoptive Mom B brought it up.  What made these birth families look past something like a history of cancer?  Adoptive Mom A said that her first birth mother chose them because she just felt more “comfortable” with Adoptive Mom A and her husband; their birth mom felt less “judged” by Adoptive Mom A and hubby than she had when she met with other prospective adoptive parents.  Adoptive Mom B said that their child’s birth mother says she picked them because they looked like a fun family and that their child would live an active, fun-filled life.  Cancer, apparently, wasn’t on these birth parents “Pickable List.”

 

What these two women shared is consistent with a recent informal survey published in Adoptive Families Magazine.  The survey presented the birth parents’ perspective and what they are thinking when they choose adoptive parents (see Adoptive Families Magazine September/October 2008 issue at p.40).  Among the criteria Adoptive Families presented as important to birth parents were a stable and financially secure home life for the child.

 

            Everything we list among our Pickable Factors is legitimate, to us.  But it isn’t always relevant for birth families.  A dear friend (Mel from Stirrup Queens) emailed me about this issue, and I took some time to really think about it.  I put myself back in “waiting mode” and I thought about things from the birth parent perspective.  Ultimately, I think what brings us together with our children’s birth parents is largely out of our control and that is very hard to deal with.  We can obsess about just about anything and everything as part of this process; it is so hard to live a life with so little control about how, when and where we’re going to become a mom or a dad.  But the reality is that at the end of the day the obsessing and worrying is for nothing.  Cancer, your religion, your marital status are all aspects of who you are, but they don’t define you.  It’s what defines you as a whole – not just itemized, compartmentalized things on a list, even elephant sized things – that make a fit for a forever family.  The right birth family for your situation usually is the birth family that sees the whole you and looks past elephants and minutia to see who you really are and what you have to offer a baby, even if the essence of you is somehow inarticulably summed up by the beautiful baseball cap you’re wearing in the picture you threw into your profile at the last minute.  

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