American College of Assisted Reproduction & Adoption Lawyers (ACARAL)

“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.

One of my areas of interest is how to balance the rights of the future child with that of the egg donor and the intended parents.

I had an example this year when, this Spring, I represented my client for the second time in 23 years – the first time as a nine month old, born in another state, when I finalized his MA adoption in 1986 and the second time in 2009 when I petitioned the MA Probate and Family Court to appoint a Guardian Ad Litem to find the birth mother since my client had a severe genetically related medical condition and faced major surgery unless his treating physicians could obtain more medical information on how this condition was treated with my client’s blood relatives who had this condition. The out of state adoption agency, which had the most complete records, had gone out of business and my 23 year old records were long gone (MA requires attorneys to keeps files for 6 years from completion of the legal matter). Long story short, the court appointed GAL found the birth mother and it turned out that she and her two daughters had been looking for my client – excellent medical and social ending.

How should we provide, at a minimum, for contact routes which will survive the test of time as here – say 10 years plus after the birth of the child via egg donation?

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.

Theresa M. Erickson, attorney at Erickson Law, a boutique law firm specializing exclusively in third party reproduction, announces their European Surrogacy & Egg Donation Conference to be held in Genève, Switzerland July 29-31, 2009, along with The Surrogacy & Egg Donation Center at Conceptual Options, LLC, of Southern California.

The Conference is aimed at informing the European community on the possibilities that exist in the United States for family building. The topics to be discussed include explaining the process of third party assisted reproduction, as well as helping alleviate the uncertainty of the journey, such as medical insurance issues, obtaining birth certificates and passports, citizenship issues, and taking your baby home.

Erickson Law would also like to note that all information regarding attendees will be kept in the strictest of confidence to ensure you remain anonymous on all levels.

For additional information on The European Conference on Surrogacy & Egg Donation please visit the website. For additional information on the Conference, click here.

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.

1. Have it notarized

Egg donor and gestational surrogacy agreements attempt to set forth, in a logical and hopefully balanced way, the understandings and responsibilities between usually non-attorney parties in a context of potentially great anxiety around the issues of infertility and longing for parenthood. It is therefore critical that all reasonable efforts be made to ensure that the parties understand the contours of the legal relationship which these agreements are establishing between them. For this reason, it is considered good practice that each of the parties are represented by counsel (with husband and wife permitted to share counsel in the absence of actual or suspected irresolvable conflict between them) with regard to the issues addressed in the agreement.

Many agreements provide simply that the parties sign and date the agreements. In the case of egg donor agreements, where all parties have code numbers, the execution of the agreement usually features the signatory’s code number rather than actual name.

A potential legal problem presented by this procedure is if there is an alleged substantial breach of the agreement by one party (or parties) leading to an effort by the other party (or parties) to seek sanctions under the agreement. In order to enforce or seek sanctions under the agreement, the potential plaintiff(s) must prove the identity of the defendant signatory(ies) and that same understood the agreement. This is made more difficult if the parties do not execute the document before a notary public, who requires legally cognizable identification by the signatory and who asks if the signatory is signing the document of same’s free will and with full understanding thereof.

Where signatory names are confidential, the notary public execution page can be maintained separately so that the confidentiality of the signatories is maintained, with sanitized copies of same provided to counsel for the other party (parties).

2. Egg donation agreements – reporting of future health issues – make it both ways

Most egg donation or ovum donation agreements include a health notification provision which states that if a child is born as a result of the egg donation and an unforeseen health problem arises, the parties should communicate with regard to same via the matching agency or counsel. This language should be made more specific and set forth that the egg donor is obliged to contact the matching agency or counsel should she become aware, at any future time, of a medical condition, which could affect the child born of her egg, of which she was unaware at the time of her egg donation and which was not revealed during the medical screening which occurred at the time of her egg donation. Similarly, there should be specific language that the intended parents of a child born from egg donation are obliged to notify the egg donor, through the matching agency or counsel, of any previously unknown medical condition of the child which could result from a medical or genetic condition of the egg donor so that she will be made aware of same given its potential relevance to her health and that of any future children conceived by her donation of eggs or conceived by and parented by her.

Herbert D. Friedman, Esq.
www.massadopt.com
www.massartattorney.com