Posts Tagged ‘gestational carrier’
February 23, 2016 | By: Liz
So in Part 1 we discussed some of the agreements you might need to enter into when building your family through third-party assisted reproduction and how my colleagues and I can help you with them. Now let’s take a look at some of the more obscure but equally important issues that might come up.
back to our top ten list:
(6) Using cryopreserved embryos in the event of a divorce or after a death. Do you know whether you can use frozen embryos after a divorce or separation? Did you know that this is one of the hottest legal issues in third-party assisted reproduction law (Hello Sofia!). What if you want to conceive a child using frozen embryos after your partner dies? Will you be a legal parent? Will your child be entitled to inherit from your partner’s estate, or your partner’s social security benefits? These are some of the most complicated and cutting-edge issues in reproductive law and you don’t have to be Sofia Vergara to regret not having had a thorough discussion with an attorney before you make decisions (or have a pre-conception embryo disposition agreement prepared or even just check off a box on a clinic consent form) that has the power to change your life plans. And heck, just look at Sherri Shepherd and her battle not to have child support obligations. That case just turns my stomach.
(7) Managing money in a surrogacy arrangement: You may be spending over $100,000 in connection with your surrogacy or receiving tens of thousands of dollars in compensation as a surrogate. Do you know where the money is being held? Do you know how and when it is being paid and what documentation, if any is being provided to support the payment? What happens if your agency goes under and the escrow account was held by the agency? Are independent escrow managers necessary and when should you retain one? Do the state laws which govern your surrogacy arrangement provide special rules for how and where money must be held? How do you know if your money is safe?
(8) Doing a home insemination: It may be a more affordable way to conceive your child (and more intimate as compared to the stirrups in your doc’s office), but will you have a legally recognized family if you do a home insemination? Did you know that in some states a doctor must perform the insemination in order to terminate the sperm donor’s parental rights and ensure that the intended parents are deemed legal parents?
(9) Getting your birth certificate: How and when can you get a birth certificate with the intended parents'(s) name(s) on them? Can you get them before the baby is born or only after birth? Do you need to do a second or step-parent adoption? Is the law in the State in which your baby will be born uniform throughout the State or does it vary County by County or even Judge by Judge? Do you know what you need to do, where you need to do it and when you need to do it in order to obtain a birth certificate for your child with your name on it? One of my colleagues has a fairly famous quote from an interview he gave about the fact that the ease with which he can or cannot obtain parentage orders sometimes comes down to the button he pushes in the elevator in the courthouse. Are you walking into a courthouse like that? Do you have any alternative?
(10) Understanding the impact of changing laws: Third-party assisted reproduction is a new and emerging area of the law. Some states have statutes governing egg and sperm donation, and surrogacy, others have only case law (or judge made) law. Some states have statutes or laws which are unfavorable and others have laws which are favorable to different types of third-party assisted reproduction. Some states have outdated laws that may change in the near future. Other states have laws which may be unconstitutional given recent decisions from the United States Supreme Court, but the state may not yet be complying with or adhering to new and evolving constitutional principles. When and how will these evolving laws impact your family building and the recognition of your family, as a family? And as long as we are discussing the status of various state laws, doctors (as much as we love and need them in this process) don’t always fully understand the laws, especially the nuances with which my colleagues and I have become familiar. Just as I would never try and tell my clients what their latest blood test results mean, and my clients should not listen to me with great seriousness when I put on my honorary lab coat, they shouldn’t listen to their doctor’s advice about what they can and cannot do to build their family. Sure, get her opinions on what options you have, but check with someone who actually practices reproductive law before you cross a type of third-party assisted reproduction off your list because your doctor tells you that option isn’t available it to you.
My colleagues and I can help you answer most, if not all of these questions. We can help you make smart (or smarter) choices as you begin the often complicated process of building your family using donor gametes like egg, sperm, or embryos, or with the help of a gestational surrogate. We can protect you in almost all of the scenarios and situations discussed in this top ten list. Reproductive lawyers are here to help you become a parent and help make sure that your legal parent-child relationship and family are recognized by the government and other people who might try to challenge your status as a mom or dad. It’s that simple. And it’s that important.
Filed under: anonymous sperm donation, Birth Certificates, Birth Orders, Current Affairs, Egg Donation, Embryo Disposition, Embryos, Family Building Law, Frozen Embryos, fund management in third-party assisted reproduction, Gestational Carrier Arrangements, infertility in the media, known sperm donation, Parentage Orders, Pre-Birth Orders, Reproductive Law, Reproductive Lawyers, Same Sex Parenting and Reproductive Law, Surrogacy, surrogacy escrow management, Third-Party Assisted Reproduction
March 5, 2015 | By: Liz
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:
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.
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