Archive for the ‘Surrogacy’ Category

The “Lightly Regulated” US Fertility Industry: The Myth Continues

Posted on March 28th, 2012 in Assisted Reproduction, Egg Donation, Ethics, Legislation, Surrogacy | No Comments »

Countries – indeed, whole regions of the world – which disallow or severely curtail IVF and/or gamete donation are often mistakenly called “highly regulated” environments. Heavy restrictions, usually with religious underpinnings or simply borne out of a failure to think progressively, hardly constitute regulation. They are more accurately described as prohibitions.

Compared with places like Italy, the Middle East, England and Canada (specifically with regard to paid gamete donation in these last two countries), the fertility industry in the United States has been likened to the “Wild West” – a loosely regulated landscape where anything is possible. This is just not true. The FDA, the mandates of various states vis a vis gamete donation (New York is prominent here), the ASRM (even though it oversteps its bounds with attempts at economic regulation) and the internal administrative policies of many responsible IVF clinics prove that significant regulation exists to shape appropriate conduct and safeguard the health of all IVF patients and egg/sperm donors. I think that we need better and more refined regulation so that we cut the lag time between scientific advancement and policies designed to effectively govern practice. But little regulation in the US? Not the case.

Sanford Benardo to Guest on “The View”

Posted on June 22nd, 2011 in ACARAL News, Popular Culture, Surrogacy | No Comments »

Sanford M. Benardo, Esq, president of ACARAL and Northeast Assisted Fertility Group, will be a guest on ABC’s The View.

Airing Friday, June 24th at 11:00 AM the episode will focus on Surrogacy and will also be co-hosted by special guest Giuliana Rancic. The episode will also be available to watch on The View‘s website.

New Jersey: Intended Mother Not Biologically Related to Child Must Adopt

Posted on February 24th, 2011 in Adoption, Assisted Reproduction, Egg Donation, Embryo Donation, Legislation, Noteworthy Decisions, Surrogacy | No Comments »

The appellate division held that a married woman had to adopt her husband’s child.

The child was created with her husband’s sperm and a donor egg.   The resultant embryo was then transferred into a gestational carrier who gave birth to the child.   The married woman argued that if she was artificially inseminated with donor semen, her husband would be considered the legal father pursuant to New Jersey statute.   While the statute does provide for legal recognition of the husband, the Court distinguished this case and required an adoption.

Justification for the Surrogacy Exclusion

Posted on February 4th, 2011 in Surrogacy | No Comments »

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.

Connecticut Supreme Court Honors Gestational Surrogacy Agreement Establishing Parentage

Posted on January 13th, 2011 in Assisted Reproduction, Noteworthy Decisions, Surrogacy, Technology | 1 Comment »

The Connecticut Supreme Court, on January 7, 2011, held that a gay man, not biologically related to his twins, could have his name placed on their birth certificates establishing legal parentage over them along with the twin’s biological father.  This decision, if structured properly through an attorney, means that a gay family utilizing gestational surrogacy in Connecticut will no longer need to have the non-biological parent adopt the child in a second-parent adoption.


Surrogacy & Egg Donation Without Legal Representation

Posted on December 14th, 2009 in Egg Donation, Surrogacy | 2 Comments »

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 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.

Michael Jackson’s Children and the Battle for Custody

Posted on July 6th, 2009 in Assisted Reproduction, Egg Donation, Popular Culture, Surrogacy | 1 Comment »

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.