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The Bizarre World of Embryo Banking. Where My Motherhood and Morality Meet.

December 7, 2012 | By:

Every once in a while I have true conflicts between my self as a former infertility patient and my career as a reproductive lawyer and adoption attorney.  A couple of years ago, I wrote a law review article on the disposition of frozen embryos, and whether or not talking about embryo adoption was legally correct whether the better, more appropriate terminology was/is embryo donation.  There are hundreds of thousands of frozen embryos in cryopreservation in this country where the intended parents of those embryos no longer wish to use the embryos for their own family building.  These embryos are often referred to as “leftovers” a term which somewhat disturbs me but is strictly speaking, accurate.  These embryos are “leftover”, after a family was created through IVF and now remain in a state of frozen suspension.  Many of those embryos could be used to help build another family, and be donated to an infertile couple.  There was some confusion as to whether these embryos should be placed for adoption or donated in a similar manner to egg and sperm donation and I wanted to resolve that confusion — at least for myself.  I ultimately drew the legal conclusion that the term embryo adoption isn’t really accurate because there isn’t a human being to adopt.  I could go into a lengthy analysis of how I came to that conclusion but your eyes would roll back in your head and you would probably start drooling from boredom.  So let’s just defer that analysis and argument for another day.  If you are interested, you can get a copy of the article on the web (click here).  I now happen to be a huge advocate for embryo donation.  I think it is a fabulous way to build a family.  However, these are musings for another blog.  But my article did provide some clarity to those medical facilities which are banking those frozen “leftover” embryos.

So here I have been sitting happy as a woman with a barren uterus could ever be, contemplating my holiday shopping safe and secure in my belief in, and advocacy of embryo donation.  And then I hear about this doctor in California who has a new kind of embryo bank.

Before I heard of this physician in California, I was aware of only one type of embryo bank; one where frozen “leftover” embryos are being made available for donation to infertile families.  These frozen embryos were the subject of my law review article.  This new embryo bank, however, does not contain any of these “leftover” frozen embryos.  This bank is comprised of embryos which were recently created using carefully selected donor eggs and donor sperm.  The donated eggs are fertilized with the donated sperm and the resulting embryos are frozen for future selection by hopeful intended parents.  Let’s stop briefly and note emphasis on the words “future selection”.  We will circle back to why this is relevant but I wanted to point out that these embryos are being created for future selection by wanna-be-moms and dads.

This physician has created his embryo bank in a manner to facilitate selection for all types of characteristics — everything from physical traits like blond hair and blue eyes to religious ethnicity.  Jewish embryos, who knew?  Actually, this could be fantastic for Jewish couples who need a single Jewish egg donor, and/or want to further ensure a connection with Judaism by having a genetic connection on the sperm side of life.  You have no idea how hard it can be to find a specific ethnic donor and this is something I gather this doctor has identified as a plus to his business model.  Speaking of business models, he also offers a money back guarantee.  You choose a batch of embryos to use to try and get pregnant.  If you don’t get pregnant the first time, you get two more tries using different batches of embryos.  If you don’t get pregnant, you get 100% of your money back (approx. $12,000).

Upon hearing of this embryo bank a part of me was disgusted and a part of me . . .  well I was excited.  Super excited. Especially about the money back guarantee.

The infertility patient part of me sees this as a great opportunity to get pregnant.  Frozen embryo transfers — while statistically less successful than fresh embryo transfers — can be lot easier to go through than an IVF cycle.  For me having the embryos created using donor gametes isn’t a big deal.  But if it were, I would be able to select an embryo based on whatever I might deem important.   So, yeah baby!  Let’s have another baby!  Give me this doctor’s number.  I am in!  Or perhaps it would be better to say the embryos are [going to be] in [me]!

But the legal scholar, academic, intellectual, lawyer part of my brain is sitting here vomiting and is pissed that I am putting these thoughts onto cyber-paper and making an argument in favor of this horrific new kind of embryo bank.  Stork Lawyer Reality check:  It is pretty much illegal to create embryos without first having identified intended parents as recipients for those embryos and from what I understand, there are no intended parents waiting for those embryos when this doctor is creating them.  The intended parents don’t enter the picture until the embryos are selected from the database and someone signs up with this program to undergo an embryo transfer procedure.  This is where that whole “future selection” comes in.

The laws regarding assisted reproduction essentially come down to intent to parent before conception: in a third party assisted reproductive arrangement there is supposed to be a contract or other document signed before the embryos are created, whereby intended parent(s) agree to be legally and morally responsible for the embryos and children that may result from the ART process.  In this case there is no such contract or preexisting intended parent.  The embryos subject of my law review article all had intended parents before the egg and sperm came together to create the now frozen “leftover” embryo.  But this new type of embryo banking lacks that component.  There are no intended parents choosing the eggs and the sperm with the immediate intent to parent.

And speaking of all those “leftover” embryos shouldn’t we first be dealing with and using all the existing cryopreserved embryos before we go about creating them? And what about the potential that this doctor may be creating even more “leftover” frozen embryos (what happens to those embryos that don’t get selected)?

Let’s not analyze whether this is baby selling.  I can’t, or won’t go there, although many others have.  Consanguinity, or the risk of an individual created through donor gametes marrying or having a child with a genetic sibling is another issue that has been raised.  The number of families that are created using any individual egg or sperm donor’s genetic material is a concern not to be overlooked or ignored.  These donors presumably are also donating through egg donation agencies, fertility clinics or sperm or egg banks.  We all have been astonished by stories of men who have discovered that they have fathered over a 100 children as a result of their donation to sperm banks — there is a significant risk that through this new type of embryo banking program not only will children have multiple full siblings running around but that egg and sperm donors have created half siblings through other programs.

Even more, if I understand this program correctly (and I am pretty sure I do) batches of embryos are being created which contain embryos which are full siblings to embryos which are contained in other or separate batches of embryos.  It sounds like  it is possible that three separate donations could take place using these three batches of embryos.  Okay, follow-me slowly here for a minute because this is a little bit like playing Twister.  In other words,  three batches of embryos each of which contain embryos which are full genetic siblings to embryos in other batches, could be donated to three different families thereby creating three separate families whose children are all full genetic siblings to each other!

Do the recipients of these embryos know how many full genetic siblings their child may have?  Are the donors aware?

It is supposedly almost impossible from a statistical standpoint for one of these children to marry its full sibling.  But when you add in the half siblings that could be created through other donation programs, and/or smaller ethnic groups for whom donation can be a challenge because of the limited number of donors available matching their ethnicity, doesn’t the risk become somewhat more than insignificant?  And even if it doesn’t, I worry that people don’t have enough information about how many genetic siblings are out there whether they are full or half siblings.

But I get it, I get why he did it.  Especially for someone with an ethnic background this type of program would be hugely popular and let’s not forget the money back guarantee.  We’re all broke after trying IVF multiple times, why the heck not take out a second mortgage if you know you will be able to pay it back if you don’t get pregnant?  Sounds pretty good doesn’t it?

I am at war with myself.  I want to go running to that clinic and pick out an embryo tomorrow.  And then my lawyer (self) tells me to stop and think about whether I want to participate in, and thereby endorse a practice which I believe, in my own legal opinion, is legally impermissible, and legally and medically unethical.  Is my desire to be a gestational mother stronger than my moral center?  Good question.

 

 

The views expressed in this blog are the views and opinions of this author and are not intended to provide or constitute legal advice or a statement of the laws as they may pertain third-party assisted reproduction within the United States.

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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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Infertility Treatment and Insurance — Speak Up While You Can!

January 30, 2012 | By:

There is an important deadline tomorrow:

Public commentary (from you!!) is needed to demand that infertility treatment coverage be included as an essential benefit under the Affordable Care Act (ACA).  To include your voice and make sure your concerns and needs are addressed contact the Department of Health and Human Services before January 31st, 2012.

The decision to include infertility treatment as a covered essential benefit falls solely in the hands of Kathleen Sebelius, US Secretary of Health and Human Services.  You can email her at

EssentialHealthBenefits@cms.hhs.gov

For more information please read http://myemail.constantcontact.com/Infertility-Matters–Demanding-Essential-Benefit-Coverage.html?soid=1101342191383&aid=B44Urr44QiU

 

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