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.

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.