Fertility attorneys like to say that we are the luckiest lawyers because our jobs are fun. We have the tremendous privilege of helping our clients on their journey to having children through third-party reproduction, including surrogacy, and egg, sperm, and embryo donation. Fertility attorneys draft contracts and file court petitions to protect the rights of surrogates (or surrogates), donors, and intended parents. While the journey to parenthood is emotional and often overwhelming, most go on relatively smoothly. However, that doesn’t mean there aren’t situations that appear to cause fertility lawyers to lose sleep. Here are five examples:
1. A client is contacted when she is already pregnant and does not know the donor agreement.
If you’re thinking about asking a friend or family member of your partner to donate sperm to help you get pregnant, it’s important to talk to a lawyer first. Sperm donation is one of the oldest forms of third-party reproduction, but it still presents some of the most common risks. In order to protect against potential pitfalls, a legal agreement between the parties is required before making any donation by a known sperm donor (unlike buying donated sperm from a sperm bank or clinic, when legal agreement is not required ). The recipient and the donor (and the donor’s partner or spouse) must be represented by separate legal counsel. This agreement will clarify the important understandings of the parties, including that the recipients will have all parental rights to any child resulting from the donation, and that the donor will not have any financial responsibility or obligation to any child who 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 disclosure
· understanding of future communication, both with the parties and with the children
· handling related costs and expenses, including for testing, transportation, storage, and legal
If you are already pregnant with a child conceived from sperm from a known donor and you don’t have an agreement, don’t panic! Just be sure to put contacting a fertility attorney in your state at the top of your to-do list.
2. A client becomes pregnant from home insemination in a state that requires medical supervision.
The attorneys at our firm, Trachman Law Center, LLC are licensed in multiple states. Of those, some states, such as New Jersey and Montana, have artificial insemination laws that require the donor to donate sperm under the supervision of a doctor or nurse practitioner. If the donor does that, he is never considered a father and has no legal relationship or responsibility for a child that may have been conceived. If a donor provides specimens outside of a medical or clinic setting and the insemination is completed at home, donors in states with such laws are considered “fathers” under the law and they shall have parental rights and obligations to any child born.
All hope is not lost! 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 must be rushed.
Life gets busy, and sometimes clients forget to let our team know that a gestational carrier has become pregnant. Not always, but it often happens when we do independent surrogacy journeys (where the parties already know each other and there is no agency involved in facilitating the journey). It is very important to inform lawyers about the pregnancy because, first of all, yay! But also, we need to know when to prepare and file a petition for a pre-birth order (PBO), which asks the court to confirm the child’s legal parentage. We start these filings in the second trimester of pregnancy so that a PBO can be issued before a baby is born and can be used to direct the vital statistics office to automatically put the names of the intended parents on the birth certificate.
Court filings take time to put together, and parties need time to review filings with their attorneys and sign their affidavits. Moreover, courts are often slow to grant petitions, and if a hearing is required (which sometimes is in some counties in some states, such as New York), hearings can be scheduled for weeks. since the petition was filed. You don’t want to run into a situation where your baby is born and you’re still waiting for the PBO!
4. Independent pregnancy surrogacy journeys without an agency.
Of course, there is nothing wrong with making an independent surrogacy journey without an agency. We usually see this when the parties know each other first, such as when a sister carries a child for her brother and his wife. The reason this one is on this list is because independent travel is more work for the clients and the attorneys. Agencies handle the nuts and bolts of the process. They help make sure the surrogate’s health insurance covers surrogacy, and help her get a new plan if it doesn’t. The agency has relationships with escrow companies to manage the funds needed for surrogacy, in addition to assigning parts to a mental health professional for evaluation, and handling all reimbursements where the surrogate is submitting receipts. Without the involvement of an agency, facilitating these aspects of the arrangement falls to the lawyers and the parties themselves. Keeping track of all these moving parts can be overwhelming!
A great solution here 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 help 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 identifies your children as children born to you through surrogacy or other reproductive technology is very important, as is making sure you appoint a guardian and a surrogate guardian in your will who can care for 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’s intended parents must have a will executed at the time their surrogacy contract is signed, and many agencies require it as well. If you are thinking about having children through third party reproduction, contact an attorney in your state to discuss estate planning.
