American College of Assisted Reproduction & Adoption Lawyers (ACARAL)

Most people consider health insurance companies to be greedy and eager to look for ways to deny coverage to insureds.  But there is one “refusal to pay” restriction in policies which is becoming far more widespread of late and for which – hard as it may seem for a surrogacy lawyer to write – I find significant justification: The surrogacy exclusion.

A surrogate (gestational carrier) is under contract to deliver a baby that is not genetically hers to someone else (intended parent(s)) and is paid for her time, effort and risk in being pregnant.  She does not wish to take physical custody and raise the baby post-delivery and, indeed, is legally prohibited from doing so.  Her insurance company is right not to underwrite her prenatal care and delivery expenses in such a situation, regardless of the fact that this trend towards virtually uniform exclusions in policies makes surrogacy even more of a financial burden for so many people.

Theresa Erickson and Sanford Benardo will be speaking at the Albany Law School on October 28.  The Albany Law Journal of Science and Technology has dedicated its 20^th anniversary symposium to assisted reproductive technology.

The topic of Theresa’s talk is: “The Practice of ART Law from a Practitioner’s Perspective – How Law and Science Interact in the Real World.” Sanford’s talk will be on the concerns of recipients and concerns of donors in egg donor contracts.

Click here for more info.  (The symposium can always be viewed live via web.)

“Building a Baby, with Few Ground Rules” (New York Times: December 13, 2009) should serve as a cautionary tale for individuals attempting to assemble surrogacy and egg donation plans without the guidance of lawyers experienced in these fields.  Those of us who work regularly to prepare gestational surrogacy arrangements and state-specific legal structures acknowledge that the law is considered “unsettled” in even the most surrogate-friendly venues.  Outcomes are forecast only to the best of our abilities.

Web sites like surromomsonline.com have emerged because potential traditional carriers (considerable legal risk) and gestational carriers (less legal risk, generally, but only if structured properly) are looking for a more “personal” connection with eager intended parents.  The motivation behind this is commendable, but when carriers advertise that they “already have a contract to use” and other such dangerous measures to circumvent the complexity that is part and parcel of a surrogacy arrangement, serious red flags should go up.  Intended parents often try to “go independent” and use sites like this to find a carrier in order to reduce cost and avoid working with programs and lawyers and psychologists.  Yes, costs go down this way, but risk profile goes way up.

Carriers should know that quite a few national surrogacy programs will give their preferences vis a vis intended parents serious consideration:  their input matters.  They can feel good about having their wishes followed and still have the protection afforded by a recognized program.  Intended parents should consider the benefits that come with experienced legal representation and think twice before cutting legal corners to try to save money.

On the birth certificate application filled out at the hospital, the birth mother chooses whatever name she wishes for the baby (or it is labeled “Baby Girl/Boy” with her last name). Then, in order to have the birth certificate released to my office, she executes my office’s birth certificate request form and must use the same name as on the birth certificate application (which I often don’t have a chance to see, as it is filled out during her stay prior to discharge). These names must also mirror the name listed on the consent/surrender documents (or at least the consents must include an a/k/a notation). I have had an increasingly difficult time trying to keep these matched up.

Some counties will just not release a birth certificate if there is a slight inconsistency in spelling, even though they know full well about whom the request pertains.

Are others dealing with this?  Any ideas?

In this movie, a husband and wife lose a baby and adopt a nine-year-old girl who is “not nearly as innocent as she seems.”

The social work and adoption advocacy community have reacted to the trailer (the movie does not open until Friday, July 24) by calling for boycotts of Warner Bros.  There is little doubt that this film does not cast adoption in a positive light, though I don’t believe it is as reprehensible as they are making it out to be.  It’s a simple summertime horror film, not some incisive documentary about the dangers of adopting an older child.  In fact, the protagonist herself is the one who issues the taunt on the trailer (see below).

Claims have been made that Michael Jackson was not the genetic father of his children Prince Michael I and Paris, and that Debbie Rowe, his ex-wife who gave birth to them, was not the genetic mother [click for more] . That is, Debbie Rowe was a gestational carrier, implanted with embryos created with donor sperm and donor egg. Whether the donor material came from known or anonymous donors is a mystery, along with the rest of these questions.

All seem to agree the children were created in vitro, opening the possibility that donor material was probably used , at least in part. Just think of all the possible scenarios:

• Michael Jackson sperm; Debbie Rowe’s egg
• anonymous donor sperm; Debbie Rowe’s egg
• anonymous donor sperm; anonymous donor egg
• Michael Jackson sperm; anonymous donor egg
• known sperm donor; Debbie Rowe’s egg
• known sperm donor; known egg donor
• etc!

Debbie Rowe insists that she is the genetic mother and wants custody; DNA tests will prove this one way or the other eventually. But she already forfeited custody to Jackson: does she have any legitimate claim (if she is the genetic mother or not)? And what if the children are not related to Michael Jackson genetically? Does this strengthen Debbie’s Rowe’s claim for custody? And what if the sperm donor was known (his identity was known to Michael Jackson)? Does the donor have any claims?

Here’s what we do know: the State of California is arguably the most progressive in the US regarding surrogacy; more surrogacies take place in California than in any other state.  California case law shows that courts consider the intent surrounding the conception as the primary factor in determining custody. So if Debbie Rowe basically agreed to bear Michael Jackson’s kids for him, with the intent of his achieving full custody eventually, a court may very well rule in favor of Jackson’s estate, no matter the source of the genetic material.

However, it is unknown whether any parentage proceedings during the course of the pregnancies (if eggs to form embryos did not come from Rowe) culminated in Orders allowing the original birth certificates for the children to list only Michael Jackson as parent.  As Rowe and Jackson were married at the time of the births, absent such proceedings, Rowe’s name would be listed as mother on the birth certificates and she could not have voluntarily terminated her parental rights without an adoption and another parent stepping-in to assume them.

There may have been a surrogacy contract as well as sperm and egg donor contracts; we would assume that these would have been drafted by Jackson’s lawyers and that Rowe and any donor(s) would have had independent review by competent counsel. But we cannot know for sure at this point.

ACARAL will keep a close watch on these fascinating developments.

Pay egg donors for contributing to stem cell research?  New York became the first in the United States to say yes:

New York has become the first and only state to opt to pay women for eggs donated for human embryonic stem cell research. The Empire State Stem Cell Board (ESSCB), which oversees New York’s $600 million stem cell research program that was launched last year, came to the decision last week (June 11) following “extensive deliberation” from its ethics committee. (“NY to pay for eggs for research,” TheScientist.com, June 17, 2009)

In an interesting twist, New York – a state that forbids compensated surrogacy – has now determined that it is acceptable (ethically) to compensate women for donating eggs to be used for clinical research.  Perhaps the distinction is that legislators (I’d venture to guess from upstate territories) were behind New York’s statutory prohibition on commercial surrogacy, while more enlightened scientists and other interdisciplinary professionals who make up an ethical review board are behind this latest ruling.  ASRM compensation and procurement guidelines will continue to control.  A pioneering move sure to generate controversy.

In my private law practice, I represent birth mothers throughout New York State quite often.  Maybe it’s just the diversity we have here in New York, but I’ve found that the birth moms I have been privileged to work with really do come from all walks of life.  A representative sampling – over the years – includes an investment banker, a jewelry designer, the daughter of a banker, a waitress, two Orthodox Jewish women, several unemployed single moms, a woman struggling to get off drugs, and a graduate student in the humanities (throw in a hedge fund trader birth father client, too).

To be sure, there is virtually always an economic disparity between the adoptive parent’s means and those of the birth mother.  But what may surprise many people is that not all birth moms are looking to “back up the truck” and load-up on living expense money to the maximum extent permitted by law.  More than a few – with legitimate financial needs and claims – choose to tough it out because NOT asking for the help actually makes them feel better about themselves and the circumstances surrounding their decision to provide their baby for adoption.

It is hard to criticize someone who wishes to adopt, especially when the child of choice is from an impoverished African nation and would otherwise languish in an orphanage or foster home for most, if not all, of his or her childhood.  And I think that Madonna’s heart is in the right place.  But only someone with as public a profile as Madonna (Angelina Jolie, for instance) could stir-up such controversy when attempting to do such good.  While others focus on the fast-tracking of Madonna’s procedural obligations (recently dealt a setback by a Malawian judge), the more interesting issue, to me, is the potential to exacerbate an already damaging (because it is largely true) public perception issue that exists in the world of international adoption: the sense that being selected by an adoptive parent who is choosing among waiting children in an orphanage or foster home is analogous to winning the lottery.  Each child who makes it out is lucky beyond measure and the ones who go unpicked have to stick it out where they are.

But with Madonna, everything is more intense.  She swoops in with her entourage and identifies a child she wants – the others are not selected – but she also provides significant and desperately needed funding through her Raising Malawi Foundation to help make the day-to-day lives of those left behind much better.  So it’s hard to begrudge her what amounts – to some – as a trophy, no?

The American College of Assisted Reproduction and Adoption Lawyers (ACARAL) is a not-for-profit organization formed to share ideas, advance understanding, promote ethical standards and serve as a public resource in these constantly evolving areas of law.

If you have any questions, please visit http://www.acaral.org or contact us at info@acaral.org.