5 Things that Keep Fertility Attorneys Up at Night
Fertility attorneys like to say that we are the luckiest attorneys because our jobs are happy. We have the enormous privilege of helping our clients on the journey to having children through third-party reproduction, including surrogacy, and egg, sperm, and embryo donation. Fertility attorneys create contracts and file petitions in court to protect the rights of gestational carriers (or surrogates), donors, and intended parents. While the journey to parenthood is emotional and often overwhelming, the vast majority proceed relatively smoothly. However, that does not mean that there aren’t situations that arise that cause fertility attorneys to lose sleep. Here are five examples:
1. A client reaches out when she is already pregnant and there is no known donor agreement.
If you are thinking about asking a friend or a partner’s family member to donate sperm so that you can become pregnant, it is crucial to speak to an attorney beforehand. Sperm donation is one of the oldest forms of third-party reproduction, yet it still presents some of the most common risks. To protect against potential pitfalls, a legal agreement between the parties is needed before any donations are given by known sperm donor (in contrast to purchasing donated sperm from a sperm bank or clinic, when a legal agreement is not necessary). The recipient/s and the donor (and the donor’s partner or spouse) must be represented by separate legal counsel. This agreement will clarify the essential understandings of the parties, including that the recipients will have all parental rights to any child resulting from the donation, and the donor will not have any financial responsibilities or obligations to any child resulting from the obligation. The sperm donation agreement will also address:
· method, timing, and logistics of donation
· disposition of any remaining cryopreserved sperm
· confidentiality and disclosures
· understanding as to future communication, both with parties and as to children
· handling of related costs and expenses, including those for testing, transportation, storage, and legal
If you are already pregnant with a child conceived from sperm from a known donor and you do not have an agreement, don’t panic! Just make sure to put contacting a fertility attorney in your state at the top of your to-do list.
2. A client became pregnant from at-home insemination in a state that requires medical supervision.
Attorneys at our firm, Trachman Law Center, LLC are licensed in multiple states. Of those, some states, like New Jersey and Montana, have artificial insemination statutes that require a donor to donate sperm under the supervision of a doctor or nurse practitioner. If the donor does that, he will never be treated as a father and will have no legal relationship or responsibility for a child who may be conceived. If a donor provides specimens outside of a medical or clinic setting and the inseminated is completed at home, donors in states with such statutes will be considered “fathers” under the law and they will have parental rights and obligations to any child born.
All hope is not lost though! If you find yourself in this situation, you can terminate a donor’s rights by having the child adopted by the birth mother’s spouse or partner.
3. A pre-birth order needs to be rushed.
Life gets busy, and sometimes clients forget to let our team know that a gestational carrier has become pregnant. Not always, but this most often occurs when we are working on independent surrogacy journeys (where the parties knew each other beforehand and no agency is involved in facilitating the journey). It’s crucial to notify attorneys of a pregnancy because, first of all, yay! But also, we need to know when to prepare and file the petition for the pre-birth order (PBO), which asks the court to affirm the legal parentage of the child. We initiate these filings in the second trimester of pregnancy so that a PBO will be granted before a baby is born and can be used to direct the vital statistics office to put the intended parents’ names on the birth certificate automatically.
Court filings take time to put together, and the parties need time to review the filings with their attorney and sign their affidavits. Moreover, courts are often slow to grant the petitions, and if a hearing is required (which it sometimes is in certain counties in some states, like New York), the hearings may be scheduled weeks from when the petition is filed. You don’t want to run into the situation where your baby is born and you’re still waiting for the PBO!
4. Independent gestational surrogacy journeys without an agency.
Of course, there is nothing wrong with doing an independent surrogacy journey without an agency. We typically see this when parties knew each other beforehand, like when a sister carries a child for her brother and his spouse. The reason this one is on this list is because independent journeys are much more work for the clients and the attorneys. Agencies handle the nuts and bolts of the process. They help make sure that the surrogate’s health insurance covers surrogacy, and assists her with getting a new plan if it does not. The agency has relationships with escrow companies to manage the funds needed for the surrogacy, in addition to setting the partes up with a mental health professional for the evaluation, and handling all reimbursements for which the surrogate submits receipts. Without the involvement of an agency, facilitating these aspects of the arrangement falls to the attorneys and the parties themselves. Keeping track of all of these moving parts can be overwhelming!
A great solution to this is to hire an agency to facilitate these aspects of the surrogacy journey, even if your surrogate is a family member or friend. Many agencies are happy to assist with other aspects of the surrogacy process even if they are not involved in matching the parties.
5. An intended parent passes away without a will.
This is a tragic situation that we hope never happens. But, planning for the worst case scenario is necessary when you are about to have a child. Working with an attorney to draft a will that properly defines your children as children born to you via surrogacy or other forms of reproductive technology is very important, as is making sure that you’ve appointed a guardian and a successor guardian in your will who could take custody of your children if you and your spouse/partner pass away during or after the surrogacy journey. This is so important that by law, New York intended parents must have a will executed by the time their surrogacy contract is signed, and many agencies require this as well. If you’re thinking about having children through third party reproduction, get in touch with an attorney in your state to discuss estate planning.