Throughout the nation, a state’s position on surrogacy is crystal clear, whereas in others, it can be utterly obscure. Surrogacy is governed at the state level which ultimately means each state has its own constituents and tolerance levels regarding laws they can enact. This is why each and every state’s laws and legislations differ with surrogacy.
A recent article in USA TODAY by reporter Anita Wadhwani wrote a great piece titled, “Vague surrogacy laws can lead to heartache.” This article surrounds the issues occurring in Tennessee. When reviewing Tennessee surrogacy legislation, legal experts are claiming that this state is crawling behind not only in surrogacy laws, but also in fertility and reproductive technologies.
The story goes on to highlight a former Tennessee surrogate mother, who carried a baby for an Italian couple a few years ago, had a change of heart and decided she wanted the baby.
“After years of legal wrangling, the state Supreme Court earlier this month ruled partially in her favor, sending the case back to a Nashville juvenile judge to decide on custody of the girl,” writes Wadhwani. She continues, “The girl is now 3, lives in Italy, speaks no English and has been raised since infancy by the Italian couple after the surrogate’s legal fight to keep her was dismissed by lower courts.”
Wadhwani goes on to write that this is a wrenching custody battle that surrogacy law experts say might have been avoided if Tennessee laws didn’t lag woefully behind.
“Tennessee’s surrogacy law ‘lacks a clear process for persons to create, carry out, and enforce traditional surrogacy agreements,’” the Supreme Court noted in its opinion. “That leaves parties to surrogacy contracts and courts ill-equipped to deal with the complex questions that inevitably arise in this area of law.”
These blurred legal lines have created much sorrow for the parties involved.
Benjamin Papa, the attorney representing the Italian couple told the reporter, “Certainly, it’s complicated to try at this point to establish a visitation schedule if you have a child who doesn’t speak English, has never met the surrogate but does have a biological mother whose rights have never been terminated.”
Papa’s statement is both excellent and jaw-dropping.
If the biological mother’s rights have never been terminated, which is stunning, considering she’s been living with her parents for three years and if the surrogate obtains visitation, she will be a virtual stranger to this little girl.
I’m mystified by this. Yet, because the laws are so vague, I’m not stunned by this mess.
“The battle has been very hard,” Papa said. “They went through the whole surrogacy process in good faith. From their perspective, the surrogate decided she wasn’t going to live up to the bargain at the last minute. They have been very frustrated with her trying to back out of the deal everyone agreed to.”
And it appears that this case isn’t the only one floating around in the courthouse.
Wadhwani reports, “In one Rutherford County case, the surrogacy arrangement went smoothly. There was no conflict between the surrogate and the intended parents. And then the Tennessee Department of Health intervened.” The reporter pushes forward, “The surrogate was implanted with an anonymously donated egg fertilized by the intended father’s sperm. When the couple went to court to establish parentage, just before the birth of their child, state attorneys argued against them, saying that the surrogate must be listed as the child’s mother on the birth certificate.”
The end decision was that the court ruled with state health officials.
Diane Hinson, a Fellow of the American Association of Assisted Reproductive Attorneys shared her point of view regarding this article.
To date, Tennessee remains one of four states which mandat an “intended mother” using an egg donor to become a legal parent after the baby is born.
This adoption process also impacts the surrogate. Hinson said the surrogate, “is on the hook as the legal parent until that adoption proceeding is completed.”
Julia Tate, a lawyer involved in the Rutherford County trial, told reporters she plans to appeal this Court of Appeals ruling.
“There are women using donated eggs every day in Tennessee,” Tate said. “All these surrogates — they don’t want to be named as the mother of the child. All the intended parents want is to be named as the parents. We’re out of step with the nation. Our department of health is out of step with the nation.”
Tate also pointed out that because of this “stepparent adoption process,” the new parents have been unable to receive a Social Security card for their baby and cannot add them to their health insurance plan.
After all the expenses of the surrogacy process, more finances are added on to the tab with the adoption proceedings.
Let’s hope that all this can be rectified in the Tennessee courts so these parents are treated with the dignity they deserve. They have endured and sacrificed so much to have a baby.Read More
When Facebook and Apple announced their willingness to pay for their employees’ egg freezing, the initial reaction was shock. While some employees will no doubt take part in preserving their future fertility, for the most part, the consensus of this broadcast remains quite mixed.
In the Los Angeles Times, reporter, Karin Klein, questioned whether or not this is a work perk.
Her introduction pretty much says it all.
“It’s generous indeed for Facebook and Apple to extend their benefits to include egg freezing for women who want to put off child-bearing. And it might be exactly what some women want. But it’s also a sign of how poorly the U.S. workplace has responded to the needs of families,” she writes.
Klien highlighted that under these new benefits, female employees will collect up to $20,000 for the process.
She goes on to say that egg freezing is no longer considered an experimental procedure. In the same breath, she continues it’s an elective treatment and is not really recommended by the American Society of Reproductive Medicine.
Before the egg retrieval process, a woman must be on a series of hormones prior to the surgery, and sometimes, a short hospital stay is recommended.
Klien writes, “Still, an increasing number of women are expected to want this option. The question is whether they want it because that’s their preference in how their lives unfold, or whether they, as well as men, feel that there is little option if they want to be parents, but also want to succeed at their jobs.” She continues, “The American workplace, especially the realm of high-powered jobs, is particularly hostile to the family. Longer work hours are demanded, weekends are consumed and paid vacations are much shorter than in many other developed nations.”
And Klien is right.
In the Atlantic, reporter, Rebecca J. Rosenjun, reveals some jaw-dropping statistics in reference to maternity leave policies. In her article, WHY NOT HELP FAMILIES? A Map of Maternity Leave Policies Around the World, uncovers staggering information.
“If you’re a woman working in the United States and your employer provides paid maternity leave, consider yourself lucky: Just 11 percent of Americans employed by private industry have access to some sort of paid family leave. For state and government employees, 16 percent can take paid family leave,” Rosenjun reports. “The U.S. federal government provides no paid family leave to its employees, though they can use their sick days or vacation days that they’ve saved up. This state of affairs places America in a very small group: countries that neither provide new parents with some sort of Social Security-esque benefit nor require that businesses pay their employees even a portion of their normal salaries.”
We offer little, if no support for families. Don’t get me wrong, it’s a great thing that Apple and Facebook are bringing fertility to the front of the news, but what’s really needed is genuine support for families with job security after a woman has her baby and is ready to return back to her position at the office.
What’s the use of “egg freezing” when our nation, as a whole, ignores the needs of families?
Another writer taking a jab at this announcement, Kristin Maschka from Huffington Post, listed her thoughts in the piece, “Apple, Facebook and the Absurdity of an Egg Freezing Benefit.”
According to Maschka’s commentary, women have two career choices: have a company freeze their eggs or a company makes internal changes enabling women to have children, care for her family and still have a thriving career.
She writes, “The egg-freezing strategy means that Apple and Facebook are also saying ‘It’s up to each woman to plan her way through her work life. If she doesn’t, then too bad, it’s her fault.’” She continues, “All of this implies women can simply plan and choose our way through today’s work life challenges — marry the right guy, don’t lean back, choose a family friendly career, have kids early, have kids late, freeze your eggs, just ask for flexibility — and all of it actually prevents us from taking effective actions to change our workplaces and our public policies.”
Then there’s another buzz about this topic.
In the high tech fields, it’s younger employees who are in demand since they are on the cutting edge. Tech companies are making an investment in its youthful employees, and by offering to freeze their eggs, they perhaps are insuring their investment for longer staying power. And when the thirty and forty-something-years arrive for the “first round of childbearing,” a new generation of graduate students will enter the corporate doors.
It’s something to think about.Read More
Election Day is less than one month away. Standing on both sides of the voting isle dangles a personhood amendment in North Dakota, Measure 1, rallied by extremists with the intent to change its state constitution. If passed, Measure 1 could threaten birth control, stem-cell research, and in vitro fertilization (IVF).
Election year is prime time for personhood bills to emerge.
According to the Jamestown Sun, reporter, Ryan Johnson explains there is one infertility treatment clinic in North Dakota, Sanford Reproductive Medicine Clinic, which offers IVF.
If Measure 1 passes, all IVF treatments will come to a screeching halt.
Dr. Stephanie Dahl of the Sanford Reproductive Medicine Clinic said if Measure 1 passes, IVF would no longer be an option.
Johnson writes, “It will affect hundreds of North Dakota families who dream of having children,” Dahl said. She continued, “IVF is often the only successful option for infertility patients, especially those diagnosed with male-factor infertility.”
In his article, Johnsons explains how the treatment in creating an embryo may at times produce abnormal eggs, which would not be suitable for implantation.
Dahl told reporters at a press conference, “However, under Measure 1, these abnormally fertilized eggs must be protected, even if they have no chance of growing into a healthy baby and will result in miscarriage,” she said. “Even a lab accident, such as an incubator malfunction that destroys embryos, could become a criminal offense.”
According to Johnson, although the North Dakota Medical Association opposed the legislation in 2013, as voting day nears, they’re standing on new ground. It won’t oppose nor support.
Dr. Steffen Christensen took part in opening the doors to the Sanford Reproductive Medicine Clinic two decades ago. To date, he told reporters, more than 1,000 children were born through the medical efforts of the clinic.
“But this measure could ‘literally shut us down,’” said Christensen, adding how it could push him into retirement. Christensen also wanted reporters to know, “If approved, his colleagues could face criminal charges for what they do on a routine basis. We’ve been successful, we’ve followed all the ethical rules and regulations and we want to continue to serve the patients of North Dakota and our whole region.”
Johnson reported if Sanford Reproductive Medicine Clinic is forced to close its doors, the patients they would have served will now have to journey to others states.
In Valley News Life, Dahl was reported saying, “If Measure 1 passes, we will stop offering IVF immediately. We will begin the process of finding other centers in Minnesota and in South Dakota and Colorado to accept our patients.”
National reproductive health groups are opposing this ballot line item.
According to Wday.com, reporter Keven Wallevand said these national groups, championed by medical specialists, have echoed their Measure 1 opposition.
He writes, “The American Society for Reproductive Medicine says Measure 1 would insert the government into personal medical decisions, and would mean the end of in vitro for couples trying to have children.”
In N.D., sprouting around churches are political signs urging residents to vote “Yes” on Measure 1. And embedded in church bulletins, Wallevand writes, are inserts voicing the same.
Hundreds, if not thousands of people requiring and needing IVF will be ill-affected if this passes.
An alliance of North Dakota residents has created a grassroots campaign and organization called, “North Dakotans Against Measure 1 (NDAM1).” Their mission is to overthrow Measure 1.
On their website, they clearly engage visitors with the following message, “NDAM 1 believes Measure 1 is poorly written and the unclear language leaves it open to interpretation – leading to more government intrusion into our personal lives. Measure 1 may seem harmless, but it is an extreme and dangerous law. It would have serious unintended consequences if passed.” It continues, “Government should not be interfering in our personal decisions.”
I’m always proud of grassroots organizations such as this, which has the heart and passion to stand up and fight.
My personal feelings on this measure and these types of “personhood bills” are that a woman’s reproductive rights are just that: hers.
Move forward on legislation highlighting “safety and security,” but don’t cordon off limitations on how a woman procreates.
Infertility treatments are rarely covered by insurance and are incredibly expensive. To now ask that these couples and individuals drive out of state for treatment is ludicrous – and it all boils down to those who oppose abortion rights.Read More
When a woman chooses to go to a fertility clinic for a procedure, an unbridled sense of parenthood hope follows. And if a pregnancy is achieved via an IVF procedure, the last thing any mother-to-be wants to hear is there was an insemination error.
This very scenario has prompted litigation between Jennifer Cramblett, a resident of Uniontown, Ohio, and Midwest Sperm Bank LLC, located in Downers Grove.
It’s hard to imagine that something like this could occur, but clinics and the medical world as we all know, are not immune from blunders.
Here’s the lawsuit core which is netting international attention.
Cramblett is alleging the sperm she chose was from a Caucasian male, but she found out during her pregnancy, the sperm used was from an African-American.
In the Chicago Business periodical, their reporter, Fareeha Ali writes, “Ms. Cramblett and her partner, Amanda Zinkon, are white and ‘their desire was to find a donor with genetic traits similar to them both,’” according to a complaint filed yesterday in Cook County Circuit Court. “After Ms. Cramblett became pregnant, they found out the sperm was from an African-American donor, not the donor they requested.”
Cramblett became pregnant in December 2011.
The truth started to unravel following her communication with the sperm bank in April 2012.
With an eye to the future, Cramblett and her partner decided to have more children and wanted to use the same sperm donor.
It was that phone call which alerted her that the sperm donor used was #330, not #380, the one chosen.
“She contacted the Ohio doctor’s office, and his secretary told her she had become pregnant with sperm from donor #330. The Ohio doctor and clinic are not defendants,” Ali writes. “The suit says Ms. Cramblett got a letter from the sperm bank the next month ‘apologizing for the mix-up’ and enclosing a refund check for six vials of incorrect sperm.”
Following the startling news, Cramblett learned more as to how the mistake allegedly occurred. Apparently, the fertility clinic kept paper records, not electronic.
The complaint continues on by saying that the vials sent on September 2011 were erroneously interpreted. The number “380” looked like “330.”
“….and there are no redundancies to catch errors like the one the defendant made with respect to Jennifer Cramblett,” Ali reports.
In this day and age, you’d think there would be an excellent digital database and quality control for tracking sperm donor numbers. Why didn’t this sperm bank implement a series of back-up systems to ensure that the vials chosen were the ones delivered for the IFV procedure?
The article goes on to say that following the sperm error discovery, Cramblett gave birth to her daughter, Payton, in August 2012. Cramblett and her partner “love her very much,” Ali extracts from the complaint.
But having a biracial daughter is causing Cramblett emotional distress.
Ali continues, “Even so, Jennifer lives each day with fears, anxieties and uncertainty about her future and Payton’s future. Jennifer admits that she was raised around stereotypical attitudes about people other than those in her all-white environment. Because of this background and upbringing, Jennifer acknowledges her limited cultural competency relative to African-Americans, and steep learning curve,” the lawsuit states.
I truly believe that this statement made by Cramblett is by no means based on racism. At least, not her own – her concerns are ones she and her daughter may face outside of the home. And she is obviously grappling with this.
Cramblett, and her partner, Zinkon, raise an interesting issue, because while they love their child, she is biracial and now this couple has to deal with any of those hurdles which may come their way.
For me, reading about this new case naturally triggers past cases entangled in courtroom drama.
Also from Ohio, Savage discovered during her pregnancy that she was implanted with the incorrect embryo. After giving birth, Savage had to give the newborn back to his biological parents who lived in Michigan.
Then there is another case that comes to mind, which I believe occurred more than a decade ago. In Europe, a couple had twins: one was Caucasian and the other, biracial.
It was revealed the embryologist didn’t clean the needle used for ICSI and sperm from the last couple, who were African American. That’s why one twin was biracial.
As a third-party reproduction attorney, it’s interesting when I meet with parents to discuss their surrogacy contract. If they bring up DNA testing, they are usually thinking that if the test comes back that the child isn’t theirs, it belongs to the surrogate because she had sex. But I also tell them there could be a medical mistake, and while rare, they do happen.
While these stories pop up in courthouses, we can’t forget about the top-tier fertility clinics and sperm banks that bring joy to countless couples.Read More
The New York Times kicked off those chains, offering five, well-rounded articles on surrogacy.
Nidhi Desai wrote, Legalize Surrogacy So It Can Be Regulated. Also an attorney who specializes in adoption and reproduction issues, she focused on extinguishing surrogacy hostility.
She writes, “The current debate surrounding gestational surrogacy has lost sight of the incredible potential for these arrangements and has instead turned the issue into a political sword to fight any number of tangential issues. The question we should be asking as a society and within each state is how do we legislate these arrangements in a manner that protects all parties involved?”
A pithy question weaved with a positive impact.
“To protect all parties involved and address all interests, surrogacy should be widely legalized so that each state develops a framework within which it defines how we balance the complex interests of the parties,” Desai writes.
She goes on to reference Illinois, where there is consent, medical and psychological screening, legal representation, and more.
“Illinois further protects the process by ensuring that regardless of what happens to the intended parent or parents during the pregnancy, the surrogate is treated fairly and consistent with the terms of the agreement, and that intended parents, the surrogate and the state have the security of knowing that the intended parents are legally responsible for any resulting child,” she reports.
I also wholeheartedly agree with Margaret Swain in her article, When a Surrogate Has a Genetic Role.
Also an attorney in our field, she discusses the vast difference between gestational and traditional surrogacy.
In gestational surrogacy, a woman is implanted with a created embryo which has no genetic link.
“In contrast, a traditional surrogate is inseminated with the sperm of either the intended father or a sperm donor, and agrees to place the child with the intended parent or parents following birth. In the majority of jurisdictions, because of this genetic connection, an adoption (or some other type of parental rights termination) must occur before the parental rights of the intended parent or parents are finalized,” Swain writes.
A traditional surrogate has “birth mother” rights without legal documentation stating otherwise.
“In Arkansas and Wisconsin traditional surrogacy contracts are enforceable under case or statutory law. In those places, the intended parents, the surrogate and the child are ensured of the outcome of the arrangement, and the permanence of the placement is not subject to challenge, provided the arrangement falls within the requirements of the law,” Swain mentions.
If traditional surrogacy is decided, Swain recommends documentation be “carefully drafted, comprehensive legislation as to how those arrangements should be conducted,” to ensure protection.
And I fully agree.
Another great article in this series was by Andrea Braverman, Professionals Must Deal With a Surrogate’s Emotional Needs. Her credentials include clinical associate professor of obstetrics and gynecology, and of psychiatry and human behavior.
Braverman has been involved in the field of surrogacy for 25 years.
She begins her article opening with, “Women are able to make better choices about participating in gestational surrogacy when they are fully informed about the medical, emotional and legal challenges of the process. Psychological counseling and screening for the gestational surrogate and intended parents are a critical part of how surrogacy has been made safe, ethical and protective for everyone involved.”
She goes on to write, “Education and evaluation through counseling reduces risks by screening for psychopathology or unrealistic expectations. Research shows that psychological counseling helps surrogates and intended parents collaborate to create a positive experience.”
I also agreed when she pointed out how ongoing counseling for the surrogate is essential. Having an experienced counselor on hand can assist a surrogate during challenging parts of the journey.
One author I disagreed with was Arthur Caplan in, Paid Surrogacy Is Exploitative.
He writes, “I have no issue with altruistic surrogacy. It is paid surrogacy that gives me ethical heartburn, especially paid surrogacy that involves travel to other nations to find poor women to bear babies.”
Why shouldn’t a surrogate get paid for what she is doing? It takes dedication, work, and commitment. And intended parents are so indebted to her.
In my practice, surrogacy is not a woman’s main source of income and it never should be.
The other article, written by Lisa Ikemoto, a law professor was entitled, The Role of International Law for Surrogacy Must Be Expanded.
Ikemoto writes, “In the global market, legal uncertainty makes surrogacy fraught for intended parents and for birth mothers.”
She highlights the challenges regarding legal citizenship and legal parents. According to Ikemoto, international law could change this.
“At the least, surrogacy should only move forward when children born of surrogacy will have legal parents and citizenship assured, when surrogates’ health, well-being and daily lives are prioritized, and when intended parents are protected against discrimination based on marital status, sexual orientation, or other status.”
I agree. But in the meantime, having an attorney who specializes in national and international reproduction issues is the next best thing.Read More
In the U.S.A., every state in the nation has its own laws regarding surrogacy. In one state it may be legal, but cross another state line, and it may be a crime.
Tamar Lewin’s article in the New York Times, “Surrogates and Couples Face a Maze of Laws, State by State,” reviews a complicated topic.
Lewin writes, “While surrogacy is far more accepted in the United States than in most countries, and increasing rapidly (more than 2,000 babies will be born through it here this year), it remains, like abortion, a polarizing and charged issue. She continues, “There is nothing resembling a national consensus on how to handle it and no federal law, leaving the states free to do as they wish.”
Lewin points out that there are a total of 17 states which legally allow surrogacy. But with that said, all those states don’t follow the same protocol – each state is different with their views and restrictions.
“In 21 states, there is neither a law nor a published case regarding surrogacy, according to Diane Hinson, a Washington, D.C., lawyer who specializes in assisted reproduction. In five states, surrogacy contracts are void and unenforceable, and in Washington, D.C., where new legislation has been proposed, surrogacy carries criminal penalties. Seven states have at least one court opinion upholding some form of surrogacy,” she writes.
And then there’s California. It’s a haven for intended parents looking for a surrogate to help them build a family.
The reporter adds, “California has the most permissive law, allowing anyone to hire a woman to carry a baby and the birth certificate to carry the names of the intended parents. As a result, California has a booming surrogacy industry, attracting clients from around the world.”
Lewin also highlights surrogacy arrangements gone wrong.
She mentions a surrogate in Connecticut, Crystal Kelley, being offered $10,000 for an abortion, after a 5-month ultrasound discovered the fetus had health issues including heart defects, a cyst in the brain and a cleft palate.
Kelley flew to Michigan, “where surrogacy contracts are unenforceable,” had the baby and the child was adopted by another family.
As I’ve previsoulsy said, these types of surrogacy cases are not the norm.
Jennifer Lahl also appears in the article, the film creator of, “Breeders: A Subclass of Women?”
Lewin mentions one surrogate featured in the film: A Texan woman, Gail Robinson, who was a surrogate for her brother and his partner.
“In the course of the pregnancy, she had a serious falling-out with her brother and suffered life-threatening eclampsia. Ms. Robinson, who had never had a child of her own, ended up seeking custody of the twin girls she carried and was declared a legal parent, along with the partner, despite her lack of genetic connection to the twins,” she writes.
Very interesting considering the fact that in 2011, reporter Ted Sherman covered this legal battle in an article entitled, “N.J. gay couple fight for custody of twin 5-year-old girls.”
The surrogate in this Texas case no longer has custody. The biological father does and she has visitation rights, which I think she should never had received. She’s not the biological mother and she agreed to act as a Gestational Carrier for her brother and his partner.
Yes, I know, she nearly died and that is awful; however, I’m stunned that she had never given birth before the surrogate pregnancy and that’s an absolute must before being a surrogate.
Not only must a surrogate have given birth to at least one healthy child, but that child must live at home with her.
She nearly dies and she’s never done this before. I don’t care who you are: sister, cousin, best-friend – if you’ve never given birth I won’t be involved in the case. While Lewin does highlight a positive surrogate story, she switches gears on how states are trying to find middle ground, comparable to Illinois.
Lewin reports, “The Illinois law requires medical and psychological screenings for all parties before a contract is signed and stipulates that surrogates be at least 21, have given birth at least once before, and be represented by an independent lawyer, paid for by the intended parents.”
I agree. While medical and psychological screenings are not part of the California surrogacy statute, I don’t know any attorney in this industry who works with surrogates who have not been medically and psychologically screened.
For couples looking to do surrogacy, you need to be careful who your attorney is and that they know the laws in the state where your surrogacy case will be applied – or if they don’t, they associate with someone who does. Most attorneys in California don’t have to know the laws in New Jersey, Idaho, Oklahoma, Florida, North Carolina, to name a few, but I do.
If you want to work in this business and do a good job, it’s just what you do.
Televisions throughout Thailand were turned on to hear Gen. Prayuth Chan-ocha give his debut political address. According to the Washington Post, Gen. Prayuth spoke for two hours delivering his 11-point plan in an effort to overthrow previous government authority.
In his speech, the Associated Press writes, “Prayuth has said the army needed to intervene to halt violent protests that had paralyzed the government. He has vowed to restore democracy after making sweeping political reforms, which critics say are designed to purge the influence of the ousted ruling party and benefit an elite minority allied to the establishment that has failed to win national elections for more than a decade.”
Listed on the 11-point plan was regarding surrogacy in Thailand. Gen. Prayuth wants to end it once and for all.
The article points out, “A string of recent scandals has lifted the lid on Thailand’s largely unregulated commercial surrogacy industry, which has grown over the past decade.”
Gen. Prayuth looked into the camera, and told viewers that his new Cabinet would work diligently, “to prevent and solve the problem of teen pregnancy, the medical and ethical problems of surrogacy and organ and stem cell transplants.”
The Associated Press went on to report, “The government has vowed to shut down the commercial surrogacy industry and is expected to pass a law this year prohibiting it.”
Other items on the 11-point plan included:
- Protecting the monarchy
- Putting an end to insurgency
- Addressing human trafficking and the sex trade
While the Thai government collects and implements its new laws, still, we have intended parents around the world, whose surrogates are carrying their babies in Thailand. With laws continuing to shift, the emotional stress for both surrogates and intended parents is immense.
Our hope is that these surrogates remain safe, and the transition to get these babies to their new homes is seamless.