With all of the attention this industry has given the NY Times Surrogacy article last week, which I myself had blogged about here, I wanted to give everyone a few additional updates to ponder. Once is from the American Fertility Association, and the other is from the NY Times themselves with readers responding directly to the Editor. I certainly hope that this article does more good than harm. What do you think?
Happy Holidays!
Good Morning and TGIF to all! Hope you are well. Morning radio show starts in about an hour, so here are your Friday Legal Updates. They are mostly international stories with a federal law suit just filed also added. Enjoy!
United States - Federal Law Suit Filed to block federally funded human embryo reserach. "A group of plaintiffs filed a federal lawsuit today in the U.S. District Court for the District of Columbia to "enjoin and overturn the controversial guidelines for public funding of embryonic stem cell research that the National Institutes of Health issued on July 7, 2009," according to a press statement...."
It will be interesting to watch this suit play out. What are your thoughts on stem cell research?
UK - Two directors of a fertility company appeared in court yesterday accused of illegally delivering sperm to women by courier. They are to appear in court next month. This is a test case under the Human Fertilisation and Embryology Act of "procuring sperm". They face two years in jail.
Australia - A couple must battle the courts to adopt their own son. I blogged on this case already, but I wanted to repost as I really feel for this couple. Grandma carried her grandson for her daughter. Apparently, surrogacy law in NSW has not kept up with science.
Poland - A surrogate mother is fighting for custody of the child that she gave birth to for another couple from Warsaw. Polish law does not regulate surrogacy, and despite a written agreement, this looks like a battle for this couple with their gestational carrier.
Uruguay - Uruguay is one step closer to becoming the first country in Latin America to permit same-sex couples to adopt children. Uruguay had authorized same-sex civil unions last year.
New Zealand - Parents of surrogate born daughter battle to bring her home from Thailand. The couple is heartbroken as the little girl is the daughter of the Thai surrogate in New Zealand, but the couple are her parents in Thailand. The couple claims to sought legal advice, but this unfortunately looks like another issue with fertility tourism in certain countries.
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When I read about a case such as the one below, it reopens the need for education of Intended Parents (and their surrogates) by experienced legal counsel. Why did this Intended Parent think that this situation would work out for him in Indiana? Was he aware of the risks? Did he know that there were other options in other more appropriate venues, such as California?
Well, either way, make certain that you "look before you leap," and you obtain legal counsel that can tell you of the risks and rewards of working in certain states. I can only hope for the best for this father and his daughters.
Ruling revives controversy over twins' placement - by Jon Murray in Indiana
"The blond, blue-eyed twin girls who started life in an Indianapolis intensive care unit could hardly have known they would become the focus of a years-long interstate adoption battle.
As they took their first steps and reached other milestones under the care of the only father they have known, Indiana child welfare officials challenged the legality of their adoption.
Last week, on the twins' fourth birthday, the Indiana Supreme Court issued a ruling that threw their family into limbo by reversing the final adoption decree and ordering a new review.
Karen Zaria and Kathy Zee Melinger again are stuck in uncertainty rooted in an adoption that legal experts say should never have been granted to Stephen Melinger. The New Jersey man enlisted Monrovia attorney Steve Litz, and his company, Surrogate Mothers Inc., to arrange a surrogate mother from South Carolina."
Good luck to this family!
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Today I have included a guest post to mix it up alittle for those of you who are followers. Enjoy!
We’ve come a long way since the early days of assisted fertility and conception and the first IVF baby. Childless couples who yearn to have child who’s biologically theirs (fully or partly) are now able to move beyond adoption and try surrogacy and ovum and sperm donation. Advantageous as they are, these issues are a major cause of legal and ethical concern. While certain groups of people abhor and are violently against any form of conception that doesn’t involve the legal sexual union of a man and a woman, there are others who are concerned about the opportunities for misuse that these kinds of fertility treatments pose.
And so we have the laws that determine ownership of the child when the sperm and/or egg are from different people. Since nature intended the woman to be the carrier and sustainer of the child for the first nine months, surrogacy involves a third party who has to be female. And this gives rise to a new complication – how do we assign ownership or claim a lack of it when a woman “rents” out her womb for nine months? It’s a well known fact that motherhood starts the moment the child is conceived – the woman carrying the child is able to feel a distinct emotional connection and bonding with the baby even before it is born.
And this is why it’s understandable that some surrogate moms are reluctant to hand over the children they have carried to term to the intended parents as they originally planned to. Looking at the issue beyond the emotional context, the law says that a surrogate is deemed the biological mother if her own eggs have been used for the fertilization process. The sperm donor, even if he is the intended father, is just that in the eyes of the law – an anonymous sperm donor who has no biological claim over the child conceived and born. On the other hand, if the child is conceived using the intended mother’s egg (or a donor egg) and the intended father’s sperm (or donor sperm), the surrogate has no biological claims over the child she carries.
It is in the best interests of intended parents to make sure that they take care of all the legal loopholes that are possible when they want a child through assisted fertility methods, by hiring a good agency and by retaining sound legal counsel to draw up the necessary papers well before the whole process begins. A few complications that may arise are listed below:
Ensuring that nothing is left to chance is the only way to save yourself a bunch of emotional and legal hassles and take home a healthy baby that’s all yours in nine or ten months.
By-line:
This post was contributed by Holly McCarthy, who writes on the subject of jobs in criminal justice. She invites your feedback at hollymccarthy12@gmail.com
Theresa M. Erickson, Esq. Subscribe to my blog at:
Surrogacy Lawyer & Egg Donation Lawyer
www.EricksonLaw.net
According to the New Zealand Press Association, a surrogate mother residing in New Zealand may be required to pay support to the Australian government as shown below:
"A New Zealand surrogate mother could be forced to pay child support for the baby she had for two gay Australian men.
It is understood the year-old surrogate baby girl is being raised by her biological father and his male partner in Queensland, who are her legal guardians, the Sunday Star Times reported.
The Australian government had provided some child support benefits for the father to stay home and care for her, as new parents were entitled.
However, the surrogate was tracked down and asked to contribute, which she has refused to do.
Surrogacy is illegal in Queensland and many other parts of Australia."
Click Here for Complete Article
Theresa M. Erickson, Esq.
Surrogacy Lawyer & Egg Donation Lawyer
www.EricksonLaw.net
Subscribe to my blog at: http://www.surrogacyeggdonorblog.com/subscribe.html
I read this post from an attorney in Georgia, who became involved when child support became an issue - yes, child support. This Surrogate is truly an angel, and let's be glad these types of cases are rare. I just wanted to add this one to make everyone go - ouch....
"Various issues arise as the concept of surrogacy comes before the legislatures of the country. One case that I handled for the Attorney General’s Office dealt with a surrogate mother, and is an example of how crazy surrogacy issues can become. This lady had been hired to have a baby for a multi-millionaire. He was not married and seemed to be tiring of his fortunes when he decided that he would like to have an heir. The surrogate mother gave birth to a healthy little girl and the man accepted the child, made payment, and went on his merry way. Then two months later, the man had one of his “assistants” drop the baby back off at the surrogate mother’s home with a note stating that he simply could not emotionally handle the responsibilities of being a parent. "
Click Here for Complete Article
Theresa M. Erickson, Esq.
Surrogacy Lawyer & Egg Donation Lawyer
www.EricksonLaw.net
Subscribe to my blog at: http://www.surrogacyeggdonorblog.com/subscribe.html
The Cour de cassation, where appeals are lodged before the French Supreme Court, delivered its decision on December 17, 2008, in response to an earlier decision by the Paris Court of Appeal. They essentially set aside the previous decision, which had accepted to recognize Californian birth certificates after a French couple had resorted to surrogacy in San Diego.
According to Conflict of Laws Blog, the case will have to be relitigated before the same Paris Court of Appeal, with different judges.
Click Here for French Press Release
Theresa M. Erickson, Esq.
Surrogacy Lawyer & Egg Donation Lawyer
www.EricksonLaw.net
People Magazine reports that Cedars Sinai in Los Angeles has settled with Dennis Quaid for $750,000.00 for the accidental overdose of his twins born via surrogate mother back in 2007.
We are glad to hear that the children have recovered from the medical scare.
Theresa M. Erickson, Esq.
Surrogacy Lawyer & Egg Donation Lawyer
www.EricksonLaw.net
Well, the Wall Street Journal has another piece on reproductive technologies today, which will likely bring them as much criticism at the New York Times Piece did on Alex Kuczynski. What amazes me the most is how Mr. Frank condemns Mrs. Kuczynski for choosing to use a surrogate mother to have her child, as if she indeed had another option. She is not some Hollywood starlet who chose not to “deal with birth.” In fact, the Hollywood excuse is way over utilized…isn’t pregnancy the new “in” thing for celebrity moms? Oh, how I digress......
Yes, the NYT pictures were the wrong choice – period, but the focus of the piece was her and how she created her family, as she is the one of us that most know. In fact, I found most of her comments, to include those revolving around her vacation before the birth and her ability to drink alcohol while her surrogate could not, as merely attempts to help her better deal with her own issues of not being able to carry her own child.
In fact, many of her critics spent too much time attacking Kuczynski, instead of focusing on her beautiful son.
Mr. Frank, on the other hand, has issues with surrogacy on many levels. In fact, he states the following:
“When money is exchanged for pregnancy, some believe, surrogacy comes close to organ-selling, or even baby-selling. It threatens to commodify not only babies, but women as well, putting their biological functions up for sale like so many Jimmy Choos. If surrogacy ever becomes a widely practiced market transaction, it will probably make pregnancy into just another dirty task for the working class, with wages driven down and wealthy couples hiring the work out because it’s such a hassle to be pregnant.”
I wonder what surrogates feel about this? I don’t think that they appreciate that their feelings are being trumped by Frank’s desire to make the transaction a “dirty task for the working class.” Most surrogates feel that they are helping someone in such a profound way, with money only being a small part of the transaction. Wouldn’t you agree?
Click Here for the Complete Article by Thomas Frank
Theresa M. Erickson, Esq.
Surrogacy Lawyer & Egg Donation Lawyer
www.ericksonlaw.net
With the media, including the Wall Street Journal and Fox News, focused on how the economy is causing more women to sign up as egg donors and surrogates, our industry needs to be sensitive to this. Specifically, we need to be certain that these women are doing it for the right reasons, as well as for the money.
There is quite a bit for them to think about before committing themselves to this process, to include medical risks, the emotional aspects and the time commitment. This process is not an easy buck for anyone, and the reproductive community needs to make certain that we do all that we can that they are thoroughly and adequately informed.
Click Here for an Article on this Subject
Click Here for a Similar Article on this Subject
Theresa M. Erickson, Esq.
Surrogacy Lawyer & Egg Donation Lawyer
www.EricksonLaw.net
As most of your reading this know…having an attorney when diving into the prospect of becoming a parent through Assisted Reproductive Technologies is one of the most important things that you can do. That becomes even more important once Egg Donors and Surrogates also get involved. Having a lawyer, especially one that specializes in Reproductive law, becomes more important for a few reasons:
1. EXPERIENCE & KNOWLEDGE. A lawyer within the field of Reproductive law will not only know the laws concerning surrogacy and egg donation in each state, but they will also have the experience in dealing with prospective parents as well as surrogates and egg donors.
2. CONTRACTS. An experienced attorney will be able to draft a comprehensive surrogacy and/or egg donation agreement that will be able to address any issues, whether monetary or not, that may arise during the course of the contract.
3. TRUST ACCOUNTS/FUND MANAGEMENT. A lawyer experienced in reproductive law will be able to tell prospective parents what fees and/or expenses are customary and will be able to fully handle your trust account along with keeping your relationship with your surrogate and/donor separate from any issues regarding funds.
4. DISPUTE RESOLUTION. With the help of an experienced attorney, you will have an intermediary for any disputes that may arise during the surrogate pregnancy between you and your surrogate.
5. RELATIONSHIP MANAGEMENT. Having an attorney that drafts your surrogacy contract and/or egg donation contract can aid prospective parents in deciding what type of relationship they will have with either their egg donor and/or their surrogate throughout the pregnancy and after.
Along with these few reasons there are numerous others that illustrate why you should have an experienced reproductive lawyer prior to embarking on egg donation and/or surrogacy. What are your thoughts?
With the high costs of infertility treatments it is no wonder that many prospective intended parents head to the internet to look for a surrogate instead of using a surrogacy agency. However, this is often a very bad idea.
Even though agencies are often expensive, they are often the safest way to go because they have already prescreened their surrogates prior to allowing intended parents to meet with them. Additionally, agencies will act as a buffer between intended parents and surrogates to cut down on conflicts that may arise in this emotionally charged situation.
Yet, just like when you are choosing your surrogate you should also do plenty of research on different agencies to determine which will best fit your needs before you ultimately decide on which one to choose. All in all, it is the best idea to use an agency instead of just finding a surrogate on the internet. You will end up saving not only money, but also have a better chance at saving yourself from heartache.
What are your thoughts?
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After a 10 week battle, it appears that the Japanese baby girl born through Surrogacy in India will be finally going home to Japan. The Supreme Court in India ruled today that the little girl needs to be issued a passport and travel documents for Japan. The passport office in India stated that the passport and travel documents are being issued stating that the little girl is a citizen of Japan since that is where her father is from and lives. This is a huge decision and a happy one at that.
As everyone will remember from prior blogs, the little girl born with the help of an Indian surrogate has been kept in India with her paternal grandmother since birth because of a long legal battle. However, it looks like she will finally get all of the paperwork that she needs to finally join her father in Japan.
Hopefully, these reports will turn out to be true and she will finally be able to leave India.
The formerly lenient surrogacy laws in India have recently become a lot stricter with India’s parliament changing surrogacy laws in order to protect surrogate mothers in India from being taken advantage of. They have additionally made it mandatory for Intended Parents and prospective surrogates to have surrogacy contracts and to have all of the insurance together prior to the surrogate becoming pregnant.
They are hoping that this will decrease the number of women being taken advantage of when foreigners come to India to get an Indian surrogate. This is going to also make it safer for intended parents who want to travel to India to get a surrogate because these laws will not only make the entire process safer for surrogates, but also for intended parents.
A judge in the state of Ohio took an encouraging step in the right direction for Assisted Reproduction Law. The judge ruled in favor of a single father, who used IVF and surrogacy to conceive his twins. However, he was not listed on the birth certificate; instead the surrogate was listed as the only known parent because Ohio state law did not recognize surrogacy. The judge in this case rule that the father’s name could be put on the birth certificate as the children’s biological parent. This is a huge step for surrogacy in the state of Ohio.
Today, I appeared on Dr. Radio, Channel 114, along with one of our four time surrogates in order give their show a perspective on surrogacy. It went well, and I encourage everyone to listen when they get a chance. The IVF physician who also appeared in studio gave some great information for everyone. Happy listening!
Here is the information for anyone out there:
ARE YOU A SURROGATE MOTHER?
MTV’S TRUE LIFE WANTS TO HEAR YOUR STORY!
Are you a young person who is acting as a surrogate mother? MTV’s True Life is looking for young people who are preparing to give birth to another couple’s baby who are interested in sharing the story of their unique pregnancy.
Do you enjoy being pregnant? Are you preparing to give the gift of life to a couple in need by carrying their child for nine months? Have you been a surrogate more than once, for strangers, friends, or family members? Or is this your first time carrying someone else’s baby? Does your family or significant other disagree with your decision to help other families have children by repeatedly enduring pregnancy? Or are you an intended parent, using a surrogate to carry the child that you cannot? Are you a same-sex couple desperate for a biological child of your own?
If you appear to be between the ages of 16 and 28, and want to share the story of your multiple pregnancy, email us at tlfall08@mtvn.com with all of the details. Be sure to include your name, location, phone number and a photo, if possible.
Note: Erickson Law is not endorsing this program. We are merely providing information for anyone that is interested.
This case has been around in two different court systems involving an Ohio man wanted to be a parent. He used an egg donor from Texas, and the eggs were fertilized with his sperm and the resulting embryo was implanted in a woman from Pennsylvania. She gave birth to triplets. The deal fell apart when the woman who gave birth took the triplets home. Litigation ensued in both Pennsylvania and Ohio followed.
In December the Ohio Supreme Court issued an opinion you can find as follows: http://www.sconet.state.oh.us/rod/newpdf/0/2007/2007-ohio-6750.pdf
It is a short opinion, both majority and dissent. The majority states that there isn’t any Ohio policy about gestational surrogacy and so there’s no reason not to enforce the contract. They go as far as allowing consideration of an award of damages against the surrogate for breaching her obligations.
Here are some other opinions on the matter: http://lexfamilia.wordpress.com/feed/
The following article speaks about the recent media attention to gestational carriers in India. I have not done enough research on the establishments in India; however, I do think that the laws in some US States are straightforward enough to keep people from venturing there. Price is certainly an issue, as the carriers in India are not requesting as much as carriers do here in the US - however, I would need to view their medical facilities, the health of the carriers, as well as determine the laws that exist there, if any. Regardless, this article is certainly food for thought.
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