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The American Fertility Association Blog

News Alert: There Are 50 States & Michael Jackson’s Children Were Born in Only One - California

July 2, 2009 - Thursday
Posted by admin

California is one of the only states that permits the intent of the parent(s) to govern their parental rights, so that the intended parent (or intended parents) are listed as the legal parents on the birth certificate, regardless of biological connection, so long as this intent is formalized in an agreement/consent.

I, like all of us, have been intently watching the news involving Michael Jackson and his children, yet what amazes me is that lawyers on TMZ and other national news outlets are declaring that Michael “never formally adopted the children.”  Therefore, he must not be the father of these children…..And, they then ask, who are the parents of these children? 

Well, guess what?  He is the father - no adoption required in this case no matter if he is the biological father or not, which appears to be the case for all three children.  In California, surrogacy law is very clear as to who is the parent, regardless of biological connection, based upon intent.  We can only guess at the facts in this case, but a birth in California with a surrogate, egg donor and sperm donor, will not affect his rights to these children, or the rights of his children to his estate.  The only uncertainty is the fact that he was married to Ms. Rowe at the time of the birth of the first two children.  She may certainly have a claim if she remains on the birth certificate, again even if an egg donor was used. 

What people have to remember is that almost all people have the desire to be a parent, even Michael Jackson, so we need to remember his intentions to be a father, instead of focusing on the drama surrounding these children.  Let’s hope they can move forward without their father in their lives and become successful adults without the media making it worse

See more on Channel 10 News and my interview.

Theresa Erickson, Esq.
Erickson Law

Categories
Adoption • Donor Egg • Family Building • Surrogacy

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Child-Free Living on Father’s Day

June 22, 2009 - Monday
Posted by admin

About 10 years ago, I received a call from my dad just before Father’s Day. My mom had recently died from her second bout with cancer, and my dad and I had become extremely close as a result. After the usual check-in conversation (how are you feeling, how are the dogs, etc…) he asked if my partner and I had thought about having children, and if so, when he might look forward to that blessed event.

I was caught a little off guard, and all I could say was “why?”

My coming out about a decade earlier was not initially well-received. For my mom, who told me she had known since I was a teenager, it removed any plausible denial that she had left, and solidified in my mind that mothers are truly psychic. For my dad, it was an event of seismic proportion, but not for the reasons that you might imagine. I was a baseball fan (go Giants then, go Diamondbacks now) and a private pilot - two activities that he in no way associated with being gay. “But you like sports!” was a phrase I got used to hearing over and over again as he sought to come to terms with my announcement.

Though everything smoothed out very quickly thanks to our nieces and nephews immediately accepting us, we had never broached the topic of having children with our parents. Not that we hadn’t thought about it. In fact, we had been giving it serious consideration for about six months when my dad popped the question. And that’s really the point of my writing today. Because everyone that I know who considered having children, the decision was not a casual one. As a gay couple, we considered adoption. There are many worthy organizations out there, the Dave Thomas Foundation for Adoption being one of the best. What about surrogacy? Growing Generations which was one of the pioneers of surrogacy for the gay community, offered another option.

In looking back, our wrestling with the question was about us getting to the place where we recognized that child-free living was an equal option to having a child, so the decision could be made from that perspective. There were many considerations that went into our process, many of them purely emotional and all of them highly personal. My partner was - and still is - a second grade teacher. He has a brilliant way of interacting with children that most parents only aspire to and genuinely loves being with kids and teaching them. For my part, every time I held one of our friends’ babies, something inside me felt great. I kind of melted into the little one in my arms. We thought about how happy it would make my dad and my partner’s parents to have another grandchild. We looked at the practical side as well, knowing the costs involved, both financial and emotional. We looked at the rewards of guiding someone from infancy to adulthood and to deep satisfaction that we imagined in seeing our child live out his or her full potential. Perhaps most importantly, we asked ourselves what was as the heart of the matter, and the answer was creating family.

Ultimately, we opted for child-free living. And we realized that we had constructed a family around us that fulfilled our needs and that allowed us to contribute to others. A family that included our parents, our sisters and brothers, our nieces and nephews, our godchildren, our friends’ children, our friends at church, and yes - even our dog. Because for us family is that most special group of people that we choose to surround ourselves with, and that may or may not be related to us through birth. It is the group that we want to accompany us on our journey on earth. It was not an easy decision, but for us, it was the right one, and ten years later, it still feels right. 

I’m going to give my dad a call in a few minutes to wish him a Happy Father’s Day, and to thank him for the answer to my oh-so-simple question 10 years ago when I asked him “why” he wondered if we were going to become parents. “Because,” he replied, “I think you and Bob would make great dads.”

Happy Father’s Day, dad. I love you.

Ken Mosesian
Executive Director

Categories
Adoption • Donor Egg • Egg Donation • Family Building • Surrogacy • Third Party Reproduction

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Secrets

May 20, 2009 - Wednesday
Posted by Corey

I was interviewed by Vogue Magazine today about the Manicures & Martinis Infertility Prevention Program.  The editor wanted to know what the most important take home message from the series was.  I circled around that for awhile and this is what I truly think.  More than anything else on the planet, people are entitled to their own personal truth.  The truth about themselves.  And women deserve to know the truth about their own biological clocks and what their bodies can and can’t do.

Personal truth.  In my view, people have the right to know.  Were they were donor inseminated?  Or adopted?  Carried by a surrogate?  Whatever it is, we all have the right to know. 

You know what?  Facebook has been very good to me.  I have reconnected with friends and family I haven’t seen in years and years but never stopped loving.  I have brought lots of family back into my life, among them, seven cousins, especially my cousin Robyn who is one of the true loves of my life.  But another cousin too, who was adopted in 1955, the same year I was born.  But you know what’s really weird - I don’t think he knows he’s adopted.  And here we sit, reconnecting over coffee after all these years, and I have a secret.  His secret.  We are both in our fifties, and even after all this time, it’s so bizarre.  I don’t think he knows that we are not biologically linked.  And to tell you the truth, it is making me crazy. 

God, how the world has changed since the 1950’s, it’s like another planet, not another era.  I have a funny photograph of my cousin being bottle fed by his mom while she is holding a cigarette in the same hand.  Child abuse by today’s standards.

My cousin has a right to know.  And I don’t know what the hell to do.

Corey Whelan
Program Director
The American Fertility Association

Categories
Adoption • Donor Sperm • Fertility Preservation • Infertility • IUI • Surrogacy

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The Real Grey’s Anatomy Cliffhhanger - What Will They Do With Izzy’s Embryos?

May 16, 2009 - Saturday
Posted by admin

12:15 p.m.

By: Steven H. Snyder, Esq.

O.K., Izzy and Alex have a baby.  Well, sort of.  But they are going to have a baby, right?  Well, maybe.  If Izzy lives.  Even if she doesn’t live?  Hmmm . . .  If this were happening in the real world, what would be the odds and possible outcomes?  Let’s see if we can write the script(s) for next year’s opening episode.

T.V. Show Background:  Izzy has cancer, and she is worried that her treatment and/or outcome may affect her fertility.  She is in love with Alex (or is she still in love with the ghost of Denny?), so, in spite of the fact that they are not yet married, she and Alex undergo in vitro fertilization and create embryos for storage and future use using Izzy’s eggs and Alex’s sperm.  Izzy has surgery (but can’t remember it), and now we just don’t know if she is going to live or die.  But those embryos are there, and Alex, now that he has married Izzy, will definitely survive (barring an unexpected off-season car accident - one never knows!).

Legal Background:  I won’t bore you with details, but the courts in the U.S. have had occasion to address the status, possession, and use of embryos. 

The soap opera summary is that embryos are generally regarded as neither property nor persons (except in a very rare state like Louisiana); they occupy some category in between and are entitled to “special respect” because of their potential for human life.  (This means that accidentally destroying an embryo won’t subject the responsible party to murder charges or wrongful death lawsuits, but the persons whose sperm and eggs are used to create them are entitled to possession, control, and recovery of their own embryos.)    Therefore, if a clinic (or hospital like Seattle Grace) wants to keep or control the embryos against the wishes of the genetic parents, they it can’t.  The parents get the embryos and can move them or use them as they wish as long as they agree.

If the parents don’t agree on the use of the embryos, especially where they get divorced, there are a variety of theories that determine whether either parent can use the embryos against the wishes of the other.  Again, generally speaking, if the parents disagree, the parent who does NOT want to use the embryos wins.  (Just as a person has the right to procreate, each also has the right not to procreate.)  The courts have not yet forced a person under these circumstances to procreate against his or her will.  This may be because the documents the couple signed at the hospital stated that they couldn’t use them, it may be in spite of what the documents say because of intervening changes in their circumstances, or it may simply be because the parent seeking to use the embryos has other options to procreate without the sperm or egg of the former partner. 

If one of the parents dies, the embryos generally belong to both parents, so the survivor should be able to use them as he or she sees fit.  This is particularly true if the documents signed at the hospital at the time of the IVF procedure give the survivor permission.  If there are documents, the hospital will honor them, and the courts will likely give them full force and effect.  (Did we ever hear about or see any such documents in that episode?  Hmmm . . .)

The real question if one parent dies is whether, if and when the survivor uses the embryos, the resulting children are the legal children and heirs of both parents (including the deceased parent) or just the surviving parent.  If the surviving parent is the man, the only options for use of the embryos becomes through a surrogate or the man’s subsequent significant other (or wife?).  If it is with a new partner who intends to parent the child, it is unclear who the child’s legal parent will be - the deceased genetic mother’s or the new birth-parent partner’s?  Is this more like a surrogacy or an egg/embryo donation?  Will the child inherit from the genetic father’s estate, the deceased genetic mother’s estate, the birth-mother partner’s estate, or all three.  (Whatever happened to that huge inheritance Izzy received?)

The courts have not dealt specifically with this issue to my knowledge except in the context of social security benefits for posthumously conceived and born children.  The question for social security purposes (simplistically put) is whether the deceased parent had the duty to support the child under the law of the state where it was born.  Most states have answered this question, “Yes,” and children born up to 2 ½ years after the death of one parent have become eligible for social security dependent survivor benefits.

So.  Back to the world of T.V.

Izzy lives and she and Alex stay married:  They use the embryos cooperatively.  They have children, and they live happily ever after (or until one of them suffers some other debilitating disease and dies).  (Maybe they both die later and Meredith and McDreamy become guardians of the resulting children and raise them as their own!)

Izzy lives and realizes she should never have married Alex and divorces him:  They fight over control and use of the embryos.  We may find out whether they have any signed agreements (and which doctor advised them about their effect).  Whatever the outcome, the person not wanting to have babies with the embryos wins (I think).  (Does this change if Izzy wants to use them without Alex, and her cancer has left her unable to have children any other way?  Hmmm . . . )

Izzy dies and Alex is so crushed he can’t ever love anyone else and just has to have Izzy’s children:  He should have control over the embryos (but check out the documents and consents they may have signed), so he uses a surrogate to gestate the children and becomes a single parent.  He subsequently applies for social security benefits for the children and succeeds (as long as they weren’t born too long after Izzy’s demise).  Is Izzy’s inheritance still floating around, is it in trust, and can the children benefit from it?  Hmmmm . . .

Izzy dies and Alex realizes he really loves Callie, and they get married and use the embryos:  Do the documents at the hospital allow this much leeway to Alex?  If so, he and Callie have the children, and we find out whose kids they legally are and whether they inherit from only one or both mothers, genetic and birth.  My vote is that Callie becomes the legal mother, and the children retain the right to inherit form Izzy’s huge estate (or was that all donated to charity?)

I wish I could be inside the minds of the writers of Grey’s.  It would make it so much easier to predict what is really going to happen.  The interesting (and, perhaps, somewhat scary) thing is that T.V. is just following real life.  The questions discussed somewhat lightly above are very real, very serious questions that will someday have to be decided in the real world.  Perhaps this just gives us the opportunity to reflect, become aware, and better prepare ourselves for our own life’s decisions.  Good luck!


Steven H. Snyder, Esq., is the founding and principal partner of Steven H. Snyder & Associates, ATTORNEYS AT LAW.  Mr. Snyder’s primary areas of practice are Assisted Reproductive Technology Law and related Estate Planning.

Categories
Egg Freezing • Family Building • IVF • Surrogacy

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Why is an Escrow Agent/Account a good idea In a surrogacy arrangement?

February 11, 2009 - Wednesday
Posted by Lisa

Escrow accounts. Some swear by them. Some hate the idea. But I am here to give you MY ‘professional’ opinion and hopefully you will see the beauty in the simplicity of the reason behind an Escrow account.

At the signing of the contract the Intended Parents’s deposit the entire amount of the surrogate fees including an estimate of co-pays, possible child care, possible housekeeping, lost wages etc. with their chosen escrow agent. (That person or firm will most likely be your own attorney or they will be able to recommend someone.) It may cost an additional $1,000+ but it will be well worth it. My motto has always been don’t mix money with babies and this keeps it as separate as it can be under these circumstances. (The escrow account is not set up for medical, clinical, psychological, or anything other then the surrogate’s direct surrogacy/pregnancy related expenses.) If you are working with a first time surrogate with insurance this amount could be between $18,000 and $22,000. Yes, that is a lot of your hard earned money to have in an non-interest baring account but it’s best to have everyone involved know that if there is a pregnancy the money is there and ready. If, and I mean IF, there is no pregnancy, then any money not used will be returned back to the IP’s. (Money may have been subtracted for start of medications fees or transfer fees, mileage, lost wages, etc.)

Moving forward….your surrogate is pregnant. She has receipts and monthly base fees and possible travel expenses. Money that she needs to be reimbursed from somewhere. If the money has been deposited with an escrow agent then your surrogate only needs to have financial conversations with that person handling your money. The escrow agent then will call you, the IP’s, if there is an unusual request that isn’t specified in the contract. Usually, if all requests are only the base fee or maternity clothing etc, then a monthly statement is sent unless another arrangement has been made. Having your surrogate only discuss money, payments, reimbursements, compensation, (whatever you want to call it) with your escrow agent allows YOU, the IP’s, to have conversations with your surrogate about the more important issues that are going on like the latest OB appointments, how she is feeling, what she is planning on doing next weekend, how her family is, what color you are painting the baby’s room….much more pleasant don’t you think, then “Hey, I need $5.95 for that prescription I picked up yesterday.” or “I hate to say anything but my monthly check is a 10 days late.”

I mentioned that these were simple reasons to have an escrow agent however writing it all out made it seem longer then I wanted! In all seriousness, please consider making your life easier and your surrogate more comfortable by using an escrow account. Its worth it in the end!

Sharon LaMothe
InfertilityAnswers.net

Categories
Surrogacy • Third Party Reproduction

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