Surrogacy and Embryo, Sperm, & Egg Donation: What Were You Thinking?: Considering IVF & Third-Party Reproduction

by Theresa M. Erickson

Overview

In Surrogacy and Embryo, Sperm, & Egg Donation: What Were You Thinking?, an attorney who practices exclusively in reproductive law shares her expert guidance for those ready to create a family via third-party reproduction. Theresa Erickson, managing partner of Erickson Law, APLC, and the Founder and Chair of Conceptual Options, The Surrogacy and Egg Donation Center, educates and guides parents, surrogates, egg donors, sperm donors, and embryo donors through fertility, infertility, IVF, and third-party reproduction. Erickson includes a glossary of terms, a list of recommended reading for both parents and their children, and legal forms while covering a multitude of relatable topics such as the: • Top ten myths of third-party family building • History of reproduction technologies • Ways to begin the process • Ethical and legal issues • Questions to ask when building a family the nontraditional way • Methods to select a physician and attorney • Four fertility options Infertility is a global tragedy that no one should have to endure alone. This guidebook provides valuable information for anyone ready to embark on the journey of becoming parents through third-party reproduction.

Product Details

ISBN-13:	9781450229623
Publisher:	iUniverse, Incorporated
Publication date:	07/29/2010
Sold by:	Barnes & Noble
Format:	eBook
File size:	9 MB

Read an Excerpt

SURROGACY and EMBRYO, SPERM, & EGG DONATION: What Were You Thinking?

Considering IVF & Third-Party Reproduction

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By THERESA M. ERICKSON

iUniverse, Inc.

Copyright © 2010 Theresa M. Erickson
All right reserved.
ISBN: 978-1-4502-2961-6

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Chapter One

Top 10 Myths-Third-Party Family Building

Starting this book with the top 10 myths about third-party family building has a dual purpose-to put some humor in this education (dry humor, of course) and to put some myths to rest once and for all.

Myth 10: All fertility patients are created equal. False. Patients come in all shapes and sizes, including gender, sexual orientation, third-party needs, and marital status. However, in each and every case the one thing that everyone has in common is the basic human desire to have a child and become a parent. Otherwise, everyone's story and path is likely to be very different in path, perspective, and outcomes. What is most important for everyone, however, is education and following the path that suits each party personally.

Myth 9: All fertility doctors are created equal. False. Make certain to research the doctor and the clinic, just as one would research a day care provider. Use the Society for Assisted Reproduction Technology (SART) statistics and ask questions, meet them for interviews, talk with the staff, and connect with other patients online in forums. Ask about their protocols and procedures, ask about their numbers, ask about references, and keep asking until satisfied. And remember, once a physician has been selected, continue to ask questions regarding protocol, testing, embryo grading, and so on. Keeping informed each step of the way is very important because patients need to be their own advocate.

Myth 8: All attorneys are created equal. False. So who thinks that their estate planning attorney or their neighbor who is a paralegal can help draft an agreement with a donor or surrogate? More people than you think. Don't do it, or there may be regrets in the long run. Ask the lawyer questions, just as with the doctor, including questions about the number of such cases they handle per year, their years of experience, the conferences they attend, and whether they practice exclusively in this area or just dabble in it. As with any specialty, make certain that they know their job.

Myth 7: All agencies are created equal. Don't ever assume that. With doctors and lawyers, there is at least the assurance that they are licensed professionals. But with agencies in this industry, not only is there no oversight; there are also no regulations-period. The most important piece of advice on agencies is to investigate them and ask questions. Don't just use the information provided by the agency; ask others, especially IVF doctors, lawyers, and psychologists.

Myth 6: All escrow companies/trust holders are created equal. Sure they are. Who cares if the funds intended for the most important thing in your life-a baby-are being held by someone who is not licensed, insured, or bonded? Maybe there is no need to worry because the company has a nice name, and its representatives were nice on the phone-they cannot run off with the money with little or no recourse, outside of years of litigation, can they? Yes, they can. So make certain that all money is being held by a licensed and bonded escrow company or by a licensed attorney.

Myth 5: All insurance companies are created equal. Both personal health insurance coverage and the health insurance of the surrogate are a big consideration in this entire process. Will the insurance cover any of the treatment options? Will the surrogate's insurance cover the pregnancy? If not, can she obtain this type of insurance? Make certain to obtain the Evidence of Coverage on all participants' policies and review these policies along with an attorney to make certain that no one is exposed in the event of a medical issue or catastrophe.

Myth 4: All surrogates and donors are created equal. No, they are not. Their insurance coverage varies, their family support varies, their medical and psychological histories vary, their religious beliefs vary, and their morals vary. What is important is that each of these aspects are screened by each member of your team, as discussed in an upcoming chapter, before selecting the woman who will be part of your journey in creating a family.

Myth 3: All intended parents are created equal. As with surrogates and donors, they are not equal in any way. Just as stated previously, their family support varies, their medical and psychological histories vary, their religious beliefs vary, and their morals vary. Again, it is important that each of these aspects be screened by each member of the team before selecting the intended parents to work with as a surrogate or donor.

Myth 2: No one needs an attorney for contracts with third parties-the informed consents from the doctor's office are enough to protect me. Famous last words, but then who goes to their doctor for legal advice? Do people go to an attorney for surgery? Let's hope the answer is no to both of these questions. The best advice is not to allow the informed consents from your clinic, whose purpose is to protect the clinic, be used to protect one's legal rights, including parental rights. Enough said.

Myth 1: Inability to afford fertility treatment equals never having a child. Fertility treatment on a budget is possible. In fact, there are plenty of resources available to help you cut expenses without cutting corners. Use the resource list at the end of the book to help budget for medical treatment and to find cost estimates available from doctors, attorneys, and agencies, in order to make the journey affordable without making any financial, legal, or medical missteps.

Bottom line: educate, protect, and preserve.

Chapter Two

History of Reproductive Technologies This Has Been Going On for How Long?

New biotechnologies are providing the human race with new capacities for altering human reproduction. However, many groups are concerned with reproductive technologies going in the wrong direction-or in a direction that threatens the human race as we know it. Fortunately, you can rest assured that this is not the case. Third- party-assisted reproduction, although cutting-edge, has been helping couples and individuals have children when the possibility previously may not have existed for them for many years with positive results, in the world as we now know it.

It all began in 1790, when the world experienced the first successful case of human artificial insemination, although most of the world probably did not know it had even occurred. Some additional dates worth mentioning are as follows:

1884: First artificial insemination using donor sperm; U.S. doctor William Pancoast inseminates a patient with sperm from one of his students.

1954: First successful pregnancy using frozen sperm.

1968: Robert Edwards and coworkers in Britain fertilize human eggs in a test tube.

1977: First successful IVF pregnancy achieved, although no birth resulted.

1978: Louise Brown, the first IVF (test-tube) baby, is born in England.

1978: First U.S. legal case involving patients' suit for destroyed fresh embryos-plaintiff successful.

1980: First live birth in Australia via IVF (second country in the world).

1981: Elizabeth Jordan Carr, the first American baby to be conceived by IVF, is born in Norfolk, Virginia (third country in the world).

1984: First baby born from a frozen embryo, Zoe Leyland, in Australia and first live birth from a donated egg.

1985: First successful use of a gestational carrier (Ohio).

1986: First live birth from a frozen egg (Australia).

1989: Filing of first reported U.S. case by a divorcing couple involving control and disposition of their cryopreserved embryos (Davis v. Davis, Tenn. 1989).

1990: First unaffected child is born following pre-implantation genetic diagnosis (PGD)-originally developed as an alternative to prenatal diagnosis for those with an increased risk of transmitting a single gene or chromosomal abnormality to their offspring, although more recently it has been used in conjunction with certain IVF patients with the goal of increasing IVF success rates and family building.

1993: First successful pregnancy using ICSI (intracytoplasmic sperm injection).

1993: First U.S. gestational carrier dispute (Johnson v. Calvert, Cal. 1993).

1996: A 63-year-old southern California woman gives birth to a baby using a donated egg.

1997: First successful birth using frozen eggs (United States).

1999: Natalie Brown, younger sister of Louise Brown, becomes the first test-tube baby to naturally give birth to a child of her own.

2002: First reported U.S. case involving sperm bank liability.

2003: 65-year-old becomes the oldest known woman in the world to give birth using eggs from her niece and sperm from her niece's husband.

2003: Worldwide more than 1 million babies have been born using in vitro fertilization, including more than 200,000 in the United States.

In fact, in the United States in 2000, there were 35,025 babies born as a result of IVF, GIFT, or ZIFT (which make up only about 1% of all births in the United States itself). More than 4,000 PGD cycles had been performed worldwide as of April 2002, with more than 1,000 babies born as a result of IVF-PGD procedures.

Chapter Three

Beginning the Process-A Checklist Quite Lengthy Indeed-But Do Not Miss a Step

What follows is a step-by-step guide to beginning the process of assisted reproduction. With the overwhelming number of techniques available today for couples/individuals to begin their families, many are unsure of where and how to begin. The following is an abbreviated step-by-step guide that can provide you with the information necessary to start the process. This guide is not meant to be a substitute for legal advice from an attorney. This is for information purposes only; each case must be assessed individually on a case-by-case basis in order to determine the proper steps you will need to follow.

A. Speak with a Reproductive Law Attorney

  You will need to seek advice to determine the status of third-party reproduction in your state.

  The attorney will also consider the laws of the state/country where the intended parents and surrogate reside, as well as where the baby will be born.

  Currently, several states find surrogacy arrangements to be unlawful and/or can find the agreements unenforceable and/or void against public policy.

B. Agency or Independent?

  Determine whether you want to find your egg donor and/or surrogate independently or with the help of an agency.

  Currently, there are a number of surrogacy and egg donation programs that offer specialized services to couples/ individuals considering assisted reproduction.

  Because there is little regulation in this field, it is very important for you to ascertain the type of services that these agencies will provide you for your money.

  For example, does the agency require their fees be paid up front before you have selected a surrogate or donor? What type of screening and protocol does the agency use in the selection of surrogates and donors? If the surrogate or donor does not pass medical or psychological screening, will they provide you with an additional surrogate or donor for no additional cost? These are just a few of the questions that you must begin to ask if you choose to use an agency.

  If you choose to go independent, will you be able to manage the relationship with your surrogate or donor? Will you be able to resolve any conflicts along the way yourself without the help of a neutral third party?

C. Determine Costs

  Be certain that you are aware of the costs associated with the program you have selected.

  There may be overlooked costs for additional cycles, lost wages, travel, child care, and unforeseen medical complications or consequences that are not spelled out in detail.

D. Informed Consent

  Consult with an attorney to determine the risks and ramifications of executing an agreement with a doctor, agency, and/or clinic.

  Have your doctor explain to you and your surrogate/ donor the medical procedures and risks involved with your particular treatment.

E. Confirm Insurance Coverage

  Confirm that proper insurance coverage is in place for any catastrophic illness and/or medical consequences of the infertility procedures.

  Determine whether your policy, and/or that of the surrogate or donor, will cover any or all medications and infertility treatments.

  Many insurance companies are now denying medical maternity expenses to women serving as surrogates. Some insurance companies reserve the right to seek reimbursement from the intended parents for any maternity benefits paid on the surrogate's behalf.

  It is also imperative that the intended parents take the appropriate steps, in advance of birth, to have their child added to their own health insurance policy upon delivery.

F. Medical and Psychological Screenings

  The intended parents, the surrogate and her spouse, and the egg donor must complete a full medical examination that includes a variety of tests, including HIV.

  Psychological testing and evaluation of the surrogate and egg donor is also very important. This screening should be done by licensed psychologists who perform a variety of tests to determine the suitability of the surrogate and donor for the intended parents.

  Parent education is also very helpful to ascertain the needs of the parents and to help the agency, attorney, surrogate, and/or donors determine any outstanding issues that they may need to be aware of before starting the process with the individual/couple.

G. Execute Legal Contracts

  Have your attorney draft, negotiate, and finalize legal agreements as needed with infertility specialists, agencies, and third-party donors or surrogates.

  Ensure that your surrogate and/or egg donor is represented by competent, independent legal counsel, who must issue a legal clearance letter indicating that the surrogate (and her husband if she is married) and/or donor understands and appreciates the issues set forth in the contract and is proceeding with the arrangement voluntarily and without any coercion or undue influence.

  The parties must do the following:

1. Determine the financial responsibility of the parties

2. Determine the legal responsibilities of the parties

3. Ensure that medical and psychological testing take place

4. Address the ownership and disposition of any remaining embryos

5. Address what records must be maintained and by whom

6. Establish the parameters of acceptable conduct by the parties throughout the arrangement

7. Address insurance issues such as life, medical, and disability insurance

8. Identify the mechanism to be utilized to finalize parental rights

9. Address issues of prenatal testing and selective reduction

10. Establish a trust account

11. Determine compensation to be received by the surrogate or donor and what expenses will be reimbursed

12. Agree on what contact, if any, the surrogate and/or donor will have with the child

  The parties must also discuss such decisions as the number of embryos to transfer and decisions relating to selective and fetal reduction, as well as guardianship instructions in the event of the demise of one or both intended parents.

  Additional issues to discuss include what the participants will tell their children, disposition of excess embryos, confidentiality issues, and the utilization of prenatal testing, including pre-implantation genetic diagnosis and amniocentesis.

But again, no matter where you begin in this checklist, a team of professionals is important in your journey.

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Excerpted from SURROGACY and EMBRYO, SPERM, & EGG DONATION: What Were You Thinking? by THERESA M. ERICKSON Copyright © 2010 by Theresa M. Erickson. Excerpted by permission.
All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
Excerpts are provided by Dial-A-Book Inc. solely for the personal use of visitors to this web site.

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Table of Contents

Contents

Preface....................xv
Chapter 1 Top 10 Myths-Third-Party Family Building....................1
Chapter 2 History of Reproductive Technologies This Has Been Going On for How Long?....................4
Chapter 3 Beginning the Process-A Checklist Quite Lengthy Indeed-But Do Not Miss a Step....................7
Chapter 4 Facing Infertility as a Team....................12
Chapter 5 Ethics and ART My Friends and Family Are Asking Me What?....................17
Chapter 6 Treatment Decisions and Reality TV....................20
Chapter 7 Questions That You Need to Ask When Building Your Family the "Nontraditional" Way When It Feels As If You Have No More Options....................22
Chapter 8 Discussion on "Nontraditional" Families Are You One, and What Does That Mean to You?....................24
Chapter 9 Co-Parenting in Today's Legal Environment Families Come in All Shapes and Sizes....................27
Egg Donation-Fertility Option 1....................29
Chapter 10 Egg Donation This Is Your Baby....................31
Chapter 11 What to Consider When Considering Egg Donation Argh, the Money ....................36
Chapter 12 Donor Cycle Overview Timing and Medications....................38
Chapter 13 Egg Donor Selection What Is Important to My Success?....................40
Chapter 14 The Intended Parents of Egg Donors Here Are the Basics That You Need to Know....................42
Chapter 15 Gametes in the Marketplace What Is Important to Me?....................45
Chapter 16 Egg Donors and Their Families Be Sure to Do Your Homework....................47
Chapter 17 Egg Donor Anonymity and Privacy The Reality of the Google World....................50
Chapter 18 Genetic Testing This Affects Everyone....................52
Chapter 19 Egg Donors and the Economy Who Is Exploiting Whom?....................53
Sperm Donation-Fertility Option 2....................57
Chapter 20 Sperm Donation....................59
Chapter 21 What to Expect with Sperm Donation Sample Sperm Donation Fees and Costs....................61
Surrogacy-Fertility Option 3....................63
Chapter 22 Surrogacy When You Need Someone to Carry Your Baby....................65
Chapter 23 What to Consider When Considering a Surrogate This Will Cost Me How Much?....................66
Chapter 24 Legal Implications of Surrogacy-The U.S. Perspective Be Sure to Dot Your I's and Cross Your T's....................68
Chapter 25 Legal Implications of Surrogacy A Global Perspective....................74
Chapter 26 Selection of Your Surrogate Where Do I Begin?....................76
Chapter 27 Screening of Your Surrogate What Should I Be Looking For?....................78
Chapter 28 The Intended Parents of a Surrogate Some Basic Instructions to Get Started....................80
Chapter 29 Insurance Coverage-U.S. and International Beware-The Industry Motto Is Still "Deny, Deny, Deny"....................86
Chapter 30 Surrogates and Their Families What Are We Getting Ourselves Into?....................88
Chapter 31 Top 10 Questions to Ask before Signing Up with an IVF Clinic, Law Office, or Agency as a Surrogate....................93
Chapter 32 Surrogates and Their Families-International Intended Parents An Important End Note....................98
Chapter 33 Surrogacy and the Need for Independent Legal Representation for All Parties....................99
Embryo Donation-Fertility Option 4....................101
Chapter 34 Embryo Donation Is This a Real Option for Me, and Where Do I Begin?....................103
Chapter 35 What to Consider When Considering Embryo Donation....................108
Selecting Your Team Members....................111
Chapter 36 Choosing a Physician This Is Perhaps the Single Most Important Decision....................113
Chapter 37 Embryo Mishaps and Fertility Foul-Ups An Update....................116
Chapter 38 Choosing an Attorney So, You Mean My Real Estate, Adoption, or Family Law Attorney Cannot Help Me?....................121
Chapter 39 Oh, and Why Can I Not Get My Contract Off of the Internet?....................123
Chapter 40 Agency versus Independent and Online Matching Consumer Beware....................125
Chapter 41 Where to Begin with an Agency Additional Agency Information....................131
Additional Medical Considerations....................135
Chapter 42 Cryopreservation....................137
Chapter 43 Pre-Implantation Genetic Diagnosis (PGD) A Medical Breakthrough and Dream Come True? Maybe, Maybe Not....................138
Chapter 44 How Old Is Too Old Should There Be Age Limits on IVF?....................142
Chapter 45 Egg Freezing and Its Potential for the Future in Both Prolonging Motherhood and the Sale of Human Eggs By contributor Megan T. Erickson, Law Student Frozen Gametes ... More Than Just a Pause Button on Reproduction....................144
Chapter 46 Congress Considering Fertility Treatment Coverage How This May Reduce "Jon & Kate" Births....................148
Awareness-Issues, Legal and Otherwise....................151
Chapter 47 Reproductive Tourism Is It for You?....................153
Chapter 48 Trust Accounts and Escrow Services....................156
Chapter 49 Guarantee Programs and Refund Programs with Agencies and Clinics Do They Really Exist?....................158
Chapter 50 Consent Forms When All Is Said and Done-How to Protect Yourself and Your Embryos and Ultimately Your Children....................160
Chapter 51 Embryos The Disposition Agreement....................162
Chapter 52 Frozen in Time Embryo Disposition and the Options for the Future....................163
Chapter 53 Information Storage What Is It? And How Can It Be Done?....................164
Chapter 54 Disclosure The Other Elephant in the Room....................166
Chapter 55 Who Wants to Adopt Their Own Child? No One, I Hope....................168
Chapter 56 Protecting Your Identity As Well as Protecting Your Emotions and Resulting Decisions on Forums....................171
Chapter 57 Tax Consequences Is Uncle Sam Watching All of This? You Better Believe It....................173
Chapter 58 Estate Planning Documents Make That Will or Trust Now....................176
Risks and Budgets....................177
Chapter 59 The Horror Stories and the Brighter Side....................179
Chapter 60 Risk Management for Every Arrangement A Recap....................180
Chapter 61 A Budget for Every Person....................181
Frequently Asked Questions....................183
Chapter 62 Remember, the Only Stupid Questions ... Are the Ones Not Asked....................185
Conclusion This Is Only the Beginning....................195
Acknowledgments....................197
Abbreviations: Master Your New Language....................199
Glossary....................201
Resources Fertility Organizations and Internet Resources....................207
Printed Materials....................211
Additional Books Just for Parents....................217
Books for Children....................219
Appendix A Sample Surrogacy Agreement Provisions....................223
Appendix B Sample Egg-Donor Agreement Provisions....................227
Appendix C Sample Embryo-Donation Agreement Provisions....................231
Appendix D Example Tax Letter #1....................235
Appendix E Example Tax Letter #2....................238
Appendix F Example Tax Letter #3....................242
Appendix G U.S. Supreme Court: Roman v. Roman (Embryo Disposition)....................245
Appendix H What Happens to Embryos When a Marriage Dissolves? Embryo Disposition and Divorce Law Review Article by Theresa M. Erickson, Esq., and Megan T. Erickson Law Student....................273
Appendix I Thinking of Becoming an Egg Donor? The New York State Task Force on Life and the Law....................292
Index....................323
About Theresa M. Erickson....................331