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Surrogacy / Surrogate, Egg Donation, Embryo Donation, Sperm Donation Attorneys: Skilled, Confidential Help from National Network of Experienced Lawyers
Archive for the ‘surrogacy’ Category
Posted on: October 29th, 2010 by admin
National Fertility Law Center’s Of Counsel firm, Brady Klein Weissman, won a significant ruling in a full faith and credit case last month. In D.P. v. T.R., F-04079-10, a New York State court upheld a California pre-birth order and judgment of paternity for twins conceived through gestational surrogacy.
The court ruled that the U.S. Constitution’s full faith and credit clause trumps New York’s public policy barring surrogacy. In fact, the court stated that both federal and state law hold that a state’s policy is not a valid basis to deny full faith and credit to another state’s properly adjudicated judgment.
In the case at hand, a gay couple had twins through gestational surrogacy in California, and obtained a pre-birth order of paternity in 2001. In 2010, the couple became involved in a child support proceeding where one of the men sought to escape support obligations by challenging the validity of the California parentage ruling in light of the New York state anti-surrogacy policy. As noted by NFLC Of Counsel attorney Steven J. Weissman, “This decision gives a good deal of surety, especially to the non-biological father, that his parentage cannot later be challenged because of New York’s public policy against surrogacy.”
Posted on: July 21st, 2010 by admin
Wisconsin Supreme Court Says Insurance Company Cannot Exclude Surrogacy Coverage
The Wisconsin Supreme Court has issued a decision in a case that we previously reported on in September 2009. The court held that an insurer may not deny maternity coverage for surrogates “based solely on the insured’s reasons for becoming pregnant or the method used to achieve pregnancy.”
The effect of this decision is that insurance policies in Wisconsin which provide maternity coverage may not exclude coverage for surrogates or gestational carriers, regardless of the wording of the policy.
Click here for a link to the court’s full decision:
http://www.wicourts.gov/sc/opinion/DisplayDocument.pdf?content=pdf&seqNo=52286
Posted on: July 10th, 2010 by admin
Protect Your Parental Rights With Family Planning Documents
Intended parents forming a family through surrogacy face many medical, legal, and family law issues that go beyond the basic surrogacy agreement and the initial family formation, such as:
- Who will act as the legal guardian of your child(ren) in the event you are unable to act due to death, or temporary or permanent disability, prior to the time a parental order is obtained?
- Who is authorized to make medical decisions with respect to your child(ren) in the event of your disability or death?
- Who is authorized to make vital medical decisions for you if you are unable to make those decisions for yourself?
- Who is authorized to make decisions with respect to your other legal and financial matters in the event you become temporarily or permanently disabled, including decisions relevant to the surrogacy and birth process?
Family Planning Documents are drafted to clarify your intentions as to who has authority to make these important decisions regarding your and your child(ren)’s health, medical care, and guardianship in the event of your death or incapacity.
Recognizing that our clients find themselves in multiple states both during the course of, and subsequent to, their family creation process RLC’s Family Planning Documents cover these family-medical-legal issues in a multi-jurisdictional manner drafted with the intent that they be effective in as many states as possible.
These documents include:
Guardianship Designation, Power of Attorney and Consent Signed by Your Surrogate
Your Surrogacy Agreement is an important legal document; however, its main purpose is to document your arrangement with the surrogate and the parties’ intentions. And while your parental rights are established with a court judgment, even if it is a pre-birth order it does not become effective until the birth of your child(ren). A Surrogate Guardianship Designation will help to protect your parental rights before and after the birth of your child(ren), providing you with authority to make medical and other decisions regarding your child(ren) until the court orders of parentage become effective. Therefore, we strongly recommend protecting your parental rights through this formal guardianship document; and it is ideally executed at about the same time as your surrogacy contract.
Your Formal Guardianship Designation
Many parents often consider who will be responsible for taking care of their child(ren) if they were to die or become incapacitated. Unfortunately, many parents do not find the time to ensure that this decision is made legally binding. Nomination of Guardian and Nomination of Standby Guardian documents officially name your choice of alternate/backup guardian(s) of the child(ren), while in utero and once born, in the event that you are unable to be there to care for your child(ren). These documents are accompanied by stand-alone consent forms authorizing another intended parent or a third person to consent to medical treatment for the child(ren). This group of documents is particularly important for families where only one intended parent will be listed on the birth certificate.
Advance Healthcare Directives/Proxies
Advanced healthcare directives establish your rights to have a particular person make healthcare decisions for you if you are unable to do so for yourself.
General Durable Powers of Attorney
Power of Attorney documents establish the right of your designated person to administer your assets and make legal and financial decisions on your behalf (including with respect to the surrogacy) in the event you are unable to do so for yourself.
Your Family Planning Documents can also:
- Supplement your will or living trust and insure that appropriate legal appointments and expressions of intent are in place prior to the execution of a will or living trust (which are more complex and often require substantial time to develop in conjunction with an overall estate plan);
- Save you time and money, since many of the Family Planning Documents would ordinarily be part of the suite of documents that you would prepare in connection with a will or living trust.
RLC’s Family Planning Documents are applicable to all Intended Parents, whether single, married, or in a domestic partnership or civil union.
For more information, please call RLC at 888-259-6000 and to speak with one of our attorneys, or email us at info@rlcsd.com.
Posted on: June 16th, 2010 by admin
Surrogacy Issues for Non-U.S. Intended Parents
Click here for three 5 minute online interviews with National Fertility Law Expert, Richard Vaughn.
http://www.globalivf.com/expert-interviews.php
Posted on: May 11th, 2010 by admin
Radio Interview / Q&A – Family Building Options for the LGBT Community
CreatingAFamily.org interviews Willard Halm of the National Fertility Law Center.
Will specializes exclusively in assisted reproduction and family formation law, and he and his partner are the parents of 3 children from egg donation and surrogacy.
Adoption options are also discussed, with questions in this area answered by attorney Barbara Casey.
The full radio interview may be heard by clicking on: http://www.blogtalkradio.com/creatingafamily/2010/05/05/family-building-options-for-the-lgbt-community.
If you have additional questions about family building through assisted reproduction for the LGBT community, please contact National Fertility Law Center at 1-800-558-4009 (or 1-619-464-6640 if you are dialing from outside the U.S.), and ask to speak to one of our attorneys.
Posted on: April 12th, 2010 by admin
Spring 2010 ART Legislative Update
Assisted Reproduction Legislative Update
By Richard B. Vaughn, Esq.
National Fertility Law Center
2010 Copyright
As consumers of fertility medical, legal and information services, you may already know that there is not a lot of legislation or regulation in this area. However, there are actually quite a few legislative proposals being debated all across the country relating to assisted reproduction at the moment which could eventually have dramatic consequences (positive and negative) for your assisted reproduction journey. Below is a short summary of many of these proposals (However, as always, it is imperative that you obtain legal advice particular to your situation from NFLC or an attorney licensed in the state whose laws impact your journey.)
Arizona
AZ SB 1306 and HR 2651 dictates information to be included as part of the informed consent process and prohibits the purchase, offer to purchase or advertisement for the purchase of human eggs (in effect denying Arizona residents the option of using egg donation).
California
CA AB 2426 would prevent non-attorney surrogacy practitioners from having direct access to their client’s funds. Non-attorney surrogate practitioners would be required to deposit their clients’ unearned funds into either an: (1) independent and bonded escrow company, or (2) a trust account maintained by an attorney.
Florida
FL S 7062, the Florida Assisted Reproductive Technology Act, would define an agency as any organization or individual who provides a database, matching or third party reproductive service (although there are no requirements related to agency training, education, or licensure). The Act would require agencies to conduct mental health evaluations and criminal background checks on donors, gestational surrogates and intended parents every two years and would prohibit donors or gestational surrogates who are not US citizens or permanent residents.
Illinois
IL HB 1082 (2009) amends a variety of Illinois statutes and would require an insurer, upon request of an insured intended parent, to provide maternity coverage for a gestational surrogate as a dependent for a term that extends throughout the duration of the expected pregnancy and for 8 weeks after the birth of the child. This is currently assigned to the Insurance Committee of the IL House of Representatives and would be effective immediately if passed.
Kansas
KS SB 509 creates women’s health and embryo monitoring program to collect and retain in “perpetuity” 70 data items, much of which is already collected and reported by the CDC. In addition, this bill requires tracking all eggs retrieved, fertilized, transplanted, frozen, and discarded, the status of all embryos, the number and type of fetal reductions, method for monitoring the health of patients even after they are no longer patients, and a reporting of how clinics are paid (failure to report or falsely reporting can result in felony charges).
Maryland
MD S 19 improves the existing infertility insurance requirement to reduce the two year wait period to one year.
MD HB 281 and SB 585 establishes a commission on surrogate parenting to evaluate the health and social well being of children born as a result of surrogacy.
Michigan
MI SB 647-652 and companion bills HB 5129-5134, impose reporting requirements on assisted reproduction clinics in addition to those already in place, including tracking and reporting of all embryos. This bill standardizes informed consent for ART and restricts stem cell research which was approved last year in a Michigan voters’ referendum.
Minnesota
MN SF 436/HF 890 adds presumption of parentage to paternity/maternity laws in favor of all intended parents in third-party ART matters. This bill has passed through committees in both the MN house and senate and awaits floor votes in each.
Missouri
MO HB 1035 requires group health insurance policies providing coverage for more than 25 employees to also cover the diagnosis and treatment of infertility, including up to four cycles of IVF.
Mississippi
MS Initiative Measure No. 26 is a ballot initiative seeking an amendment to the state constitution which would define an unborn child as a human being starting at fertilization. Under the express terms of the Mississippi Constitution, the Bill of Rights cannot be amended by the initiative mechanism and it will likely be struck down in court.
Oklahoma
OK HB 3077 would prohibit compensation to egg donors, but it died for lack of action by the OK senate committee.
Tennessee
TN SB 2136 and HB 2159, the Embryo Donation and Adoption Act, deems a child born from donated embryos as having been adopted and grants the same legal protections without court action. This bill also requires clinics to develop written contracts transferring ownership of embryos from donor to intended parents and to keep records for 21 years.
Washington
WA HB 2793 proposed to legalize compensated surrogacy in Washington, but it died for lack of action in the WA senate.
Posted on: December 31st, 2009 by admin
Indian Child Welfare Act issues to consider in Assisted Reproduction Arrangements
The Indian Child Welfare Act
In 1978, Congress passed the Indian Child Welfare Act (ICWA) (25 USC §§1901–1963) in an effort to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by establishing specific standards that must be met before an Indian child may be removed from his or her family or placed in an adoptive or foster care placement. The ICWA was intended as a federal mandate to those involved in the child custody system to work collaboratively with tribes to prevent the breakup of Indian families and tribes and to redress past wrongs of the American child custody system. Congress found “that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and Institutions” (25 USC §1901(4)). In any juvenile court dependency proceeding, in any voluntary adoption proceeding, probate or other legal guardianship proceeding, or other proceeding that may involve the termination of parental rights or involuntary placement of a child where the child involved may possibly be an Indian child, the court must consider the applicability of the ICWA to the proceeding. There are a variety of ways Indian tribes determine membership, ranging from blood quantum requirements to residency requirements; no set formula applies to all tribes. The ICWA protects the child’s interest in his or her tribe and the benefits that flow from membership in that tribe. See 25 USC §§1901–1902. Under the ICWA, a child’s tribe also has rights that are independent of the rights of the child and the child’s parents, so that the tribe may protect its interests. The ICWA applies only to federally recognized tribes, and the ICWA does not apply if a child who has some Indian ancestry is not, for whatever reason, a member or eligible to become a member of a tribe.
Egg Donation Agreements:
In the typical situation with an egg donor, there will be no “termination” of parental rights for the donor – in fact, the donor is deemed to never have had any parental rights to terminate because custody and control of the eggs vests with the intended recipient(s) immediately upon retrieval. Therefore, it is very unlikely that the ICWA will have any application to an egg donation, but in an abundance of caution, we include a provision in the contract where the donor represents that to the best of her knowledge she is not a member of, nor eligible to become a member in, a Native American or Alaskan Indian tribe. If the donor is not eligible for membership in a tribe, then neither is the Child, and ICWA does not apply.
Surrogacy Agreements:
The ICWA is less likely to have any application to a gestational surrogacy case where the child is not genetically connected to the surrogate, however, determining membership eligibility can be done in a variety of ways ranging from blood percentages to residency requirements and no set formula applies to all tribes, so the lack of genetic connection is not a dispositive factor. In addition, in surrogacy cases where the parental establishment case is completed pre-birth, there may technically be no “termination” of parental rights – in fact, the surrogate is typically deemed to never have had any parental rights to terminate. A pre-birth parental establishment order establishes parental rights for Intended Parents and legally rebuts the presumption in law that the surrogate (and her husband if she is married) has parental rights merely by having delivered the child. In other words, pre-birth actions result in a court order determining the “non-existence” of parental rights in the surrogate (and her husband if she is married). Therefore, the ICWA is very unlikely to have any application to these types of surrogacy cases, but in an abundance of caution, we include a provision in the contract where the surrogate represents that to the best of her knowledge she is not a member of, nor eligible to become a member in, a Native American or Alaskan Indian tribe. If the surrogate is not eligible for membership in a tribe, then neither is the Child, and ICWA does not apply. For this reason, even if the surrogacy is a traditional surrogacy or the parental establishment occurs after the birth, the ICWA will not apply if the surrogate is not eligible for membership in a tribe.
We are more than happy to have one of our attorneys call you to discuss this further if you still have questions, so just let us know.
Posted on: October 7th, 2009 by admin
Posted on: September 8th, 2009 by admin
Wisconsin Supreme Court to Decide Whether An Insurer Can Deny Maternity Coverage to a Surrogate
The Wisconsin Court of Appeals, on September 3, 2009, certified a case to the Wisconsin Supreme Court involving whether an insurer can deny maternity coverage to an insured acting as a surrogate.
Two surrogates from Wisconsin, with health insurance under a group plan, were denied maternity coverage by MercyCare Insurance. One appealed to the Wisconsin Commissioner of Insurance, who determined that the exclusion was impermissible on the grounds that it violated WISCONSIN STAT. § 632.895(7), which provides, in part:
Every group disability insurance policy which provides maternity coverage shall provide maternity coverage for all persons covered under the policy. Coverage required under this subsection may not be subject to exclusions or limitations which are not applied to other maternity coverage under the policy.
MercyCare appealed the Commissioner’s decision and the trial court reviewed the case on a “de novo” basis, reversing the Commissioner’s decision and allowing MercyCare to exclude maternity coverage for the surrogate. (A “de novo” review is a form of appeal in which the reviewing court holds a full trial as if no prior trial had been held.)
The parties dispute the meaning of the second sentence of the statute. MercyCare argues that the statute means that whatever maternity coverage is provided in the policy must be provided to all insureds. Under this view, MercyCare is free to deny surrogacy coverage if it denies that coverage to all insureds. The Commissioner reads the statute to require that, if an insurer provides coverage for various maternity care procedures, the insurer must provide that same coverage to all insureds, regardless of the circumstances of how or why they became pregnant. Under this interpretation, an exclusion for surrogate mothers is impermissible because it non-uniformly denies some insureds coverage that other insureds receive.
The parties also dispute the proper standard of review when an agency (the Insurance Commissioner) interprets statutory language for the first time – the issue being whether the Commissioner’s review was one of first impression, which, if the case, allows a de novo review. The Commissioner argues that the agency has bee interpreting and administering insurance statutes for decades and therefore, the agency’s ruling should stand and the court had no authority to reverse the decision. MercyCare argues that the interpretation of the statute as applied to maternity coverage for surrogates is one of first impression, so the court’s de novo review (and ruling in its favor) should stand.
On September 3, 2009, the Wisconsin Court of Appeals certified the case to the Wisconsin Supreme Court for: (1) resolution of the interpretations of the “de novo” review standard applied in the case (citing many cases leading to competing reasonable interpretations on whether such review was appropriate); and (2) resolution of the question of whether an insurance company can deny maternity benefits under a group policy to insured women acting as surrogates.
For updates on this case*, subscribe to the NFLC Blog through our RSS Feed at http://blog.nflc.net/ (the RSS Feed can be found at the far right of the menu line of every page on our blog).
*Citation: MERCYCARE INSURANCE COMPANY and MercyCare HMO, Inc., Petitioners-Respondents v. WISCONSIN COMMISSIONER OF INSURANCE, Respondent-Appellant. No. 2008AP2937. 2009 WL 2781964 (Wis.App.) Sept. 3, 2009.
Posted on: August 25th, 2009 by admin
In response to a number of situations involving less than scrupulous business practices by some former agencies and escrow companies in the surrogacy field, several intra-industry conversations have been taking place this past year regarding whether to self-regulate the industry. The Reproductive & Genetic Technology Committee of the Family Law Section of the American Bar Association proposed to circulate a form for comments by all – including agencies – prior to drafting any legislation in this regard.
At this time, there is no pending legislation for consideration, and the template form for collecting comments has not yet been circulated.
For updated information on the ABA Family Law Section subcommittee’s efforts in this regard, contact the ABA subcommittee.
http://www.abanet.org/dch/committee.cfm?com=FL142000
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