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I recently received a call from a potential client. &nbsp;“Linda” told me that she and her husband were going to have a child using surrogacy. &nbsp;She asked if I could explain the process to her and assist her.&nbsp; No sooner did I begin explaining the process than Linda interrupted me to tell me that she and her husband already had frozen embryos and a surrogate in Mexico. I explained to Linda that I could not help her from here. In my talk with her, &nbsp;I learned that she knew nothing about the surrogate that was to carry her baby, not her name, nor where she lived. She did not know anything about the medical care the surrogate would receive, nor where the baby would be delivered. &nbsp;Linda apparently relied upon the representations of someone claiming she could inexpensively have a child in Mexico. &nbsp;Excited at the prospect, she and her husband had already gone to Mexico and created their embryos.&nbsp; I told Linda that she needed a lawyer in Mexico to ensure that everything was being done correctly according to Mexican law, and I suggested she consult with an immigration lawyer here to make sure that she followed all the required procedures to bring her child to the U.S. &nbsp; Beyond that, I could not assist her further. Yes, fertility treatments and surrogacy are expensive in the US. &nbsp;But heading to Mexico to save money with the process isn’t something that anyone should consider. &nbsp;The legality of surrogacy in Mexico is questionable. &nbsp;Laws and procedures vary from state-to-state. Parents have gotten stuck in Mexico both because of medical complications affecting their children born through surrogacy in Mexico, and because of legality issues preventing them from being able to leave the country with their newborn children. &nbsp;Just last year, the father of a child born to a New Jersey couple in Mexico City got stuck there because his child could not leave due to both medical and legal complications. &nbsp;[1] &nbsp;This is not an isolated incident. The FBI has launched an investigation into fraud regarding an American woman who took money from couples claiming she could arrange surrogacies in Mexico[2]. &nbsp;In fact, the US Embassy warns against using surrogates and agencies in Mexico due to the numerous risks that intended parents and their newborn children will face. [3] The desire for a family is very strong for many who cannot bear their own children. There are numerous operators promising an easy, less expensive way to create or expand a family through surrogacy in Mexico and for Californians especially, the option to cross the border seems viable. &nbsp;Don’t believe these people. &nbsp;Surrogacy is both a medical and legal process. The standards in Mexico on both fronts are not what they are in the U.S. &nbsp;The age-old adage of “penny wise and pound foolish” certainly applies here.&nbsp; [1] https://www.washingtonpost.com/nation/2023/06/29/surrogate-mexico-baby-paperwork/ [2] https://www.latimes.com/world-nation/story/2022-07-10/she-promised-customers-babies-on-the-cheap-using-surrogates-in-mexico-what-could-go-wrong&nbsp; [3] https://mx.usembassy.gov/surrogacy-art-and-dna-testing/

Don't Head South of the Border to Have a Baby

In February of this year the Alabama Supreme Court ruled that embryos are people. &nbsp;This ruling, specific to Alabama, raised all sorts of questions amongst fertility providers as to what the ruling meant for them and how this would impact the availability of fertility services in the future. &nbsp;Since the time of that ruling, I have received inquiries from people in our local community asking if they should be concerned. &nbsp; The short answer is no. The longer answer is more complicated. &nbsp; Before explaining that, there is something noteworthy to point out: While the Alabama ruling certainly got a lot of attention and scared physicians and patients alike, what has come to be known as the “fetal personhood movement” did not start with Alabama. &nbsp;In fact, there are ten states at present which treat fetuses as “persons” during every stage of pregnancy. Two additional states consider fetuses “persons” as long as they are in the womb. Undoubtedly, you are aware of the nearly ten-year-long failed battle carried out by Nicholas Loeb against my client, Sofia Vergara to force the implantation of pre-embryos that were stored in a California lab. Of the four lawsuits that encompassed that dispute, two of them were initiated in Louisiana by Loeb. &nbsp;Why? Because Louisiana has for years codified the concept of fetal personhood and Loeb believed his chances of success there were better than in California where the consent forms were entered into and where the pre-embryos were created and stored. Fortunately, Loeb could not make his case over jurisdiction in Louisiana, and we prevailed on behalf of Vergara in California, getting him permanently enjoined from taking action with regard to the embryos unilaterally. &nbsp; California does not treat embryos as “persons”. We do not have any “fetal personhood” statutes in California, and it is unlikely we ever will. &nbsp;The “fetal personhood” movement is mostly associated with politically conservative states in the South. &nbsp;It is expected that this movement will gain traction as it backed by the same groups that are backing abortion restrictions. In just the past two weeks, we have seen restrictive abortion laws go into effect in Florida and Arizona. However, in our state of California, we have a fairly long history of affirming properly prepared agreements on the issue of parentage through case law and certain provisions of the California version of the “Uniform Parentage Act”. &nbsp;For this reason, patients in California who seek fertility services and their physicians should feel comfortable knowing that these procedures will continue to be available to them. &nbsp; There is an overriding concern here given the current make-up of our United States Supreme Court. &nbsp;You are undoubtedly aware of the Court’s decision known as Dobbs v. Jackson Women’s Health Organization 597 U.S. 215 (2022) which reversed the long-standing principle set forth in Roe v. Wade, 410 U.S. 113 (1973) which held that a woman had the right to choose whether to terminate a pregnancy and struck down the then-existing abortion ban in effect in the State of Texas. &nbsp;Unfortunately, the Supreme Court has now stated that the laws addressing whether a woman can terminate a pregnancy are to be determined by individual states. This, however, does not directly address the question of whether a fetus has legal standing under Federal law. In the Dobbs decision, Justice Samuel Alito stated that the court took no position on “if and when prenatal life is entitled to any of the rights enjoyed after birth”. &nbsp;If the Court were to give legal status to a fetus it would directly impact a fertility practitioner’s ability to provide services. &nbsp;As you are aware, fertility providers in Alabama stopped providing services after that court’s ruling. &nbsp; Thus far the Supreme Court has declined to consider this specific question. In 2022, two women and a Catholic group petitioned the court to review the dismissal of a lawsuit against the state claiming that Rhode Island’s “Reproductive Privacy Act”, which mirrored the holding in Roe v. Wade, deprived them of their rights as voters in the State of Rhode Island. &nbsp;They also claimed that the “unborn plaintiffs” rights were being denied under the Act. In short, Plaintiffs were seeking to provide legal status to “unborn” humans in light of the Dobbs decision essentially attempting to obtain a similar result to that ordered by the Alabama Supreme Court, though with broader application[1]. The trial court dismissed the complaint filed in the case known as Jane Doe, a parent and friend of Baby Doe, Nicole Leigh Rowley, a parent and next friend of Baby Roe, and Catholics for Life, Inc., d/b/a Servants of Christ for Life v. Daniel McKee in his Capacity as Governor of the State of Rhode Island on multiple grounds. The Court of Appeal affirmed the dismissal and, fortunately, when the Petitioners sought review in the United States Supreme Court, the court refused to hear the case. &nbsp; &nbsp; The Supreme Court’s refusal to grant review is consistent with the holding in Dobbs, that these matters are to be determined based on state law. &nbsp;However, as has been the case in the recent past, this Supreme Court, consisting of a majority of conservative justices appointed by former President Donald Trump keeps moving farther to the right. While the Court declined to hear Doe v. McKee, the “personhood movement” is not content to live with the status quo. &nbsp;There is always the possibility that another case makes its way to Washington and gets heard. &nbsp;In the interim, we are fortunate that this is not an issue in California and hopefully it so remains.&nbsp; [1] The Alabama ruling addressed the question of whether plaintiffs whose embryos had been destroyed could make a claim for wrongful death. &nbsp;The Alabama Supreme Court held that the embryos were humans for that purpose.

The Future of IVF in California

It’s been a big month for those working in the fertility industry and the patients who want those services. &nbsp;First there was the failure by CooperSurgical to properly prepare various batches of its culture media with the correct nutrients to allow fertilized embryos to develop. &nbsp;CooperSurgical provides this media to a large number of IVF clinics in the US. &nbsp;The Food and Drug Administration issued a recall notice saying that nearly 1000 bottles of the culture media were defective. &nbsp;It is estimated that this affected 20,000 IVF patients. &nbsp;It has been reported that so far, eight lawsuits have been filed around the country by patients who claim that their embryos were damaged through the use of CooperSurgical media. &nbsp;[1] &nbsp; If that were not enough, we have the ruling by the Alabama Supreme Court holding that frozen embryos are children. [2] &nbsp;This decision came in the context of lawsuits initiated by couples whose embryos were destroyed in 2020, when a hospital patient somehow removed the embryos from the cryopreservation tanks where they were being stored in located in Mobile, Alabama and dropped them on the floor. Thanks to the Alabama Supreme Court, now, not only are these plaintiffs whose embryos were removed able to proceed with their claims, think of all of the new litigation that will now arise against clinics that used CooperSurgical’s sub-par culture media in Alabama. &nbsp;It’s a veritable field day for the personal injury lawyers there. &nbsp; The ruling in Alabama has potentially significant implications for users of fertility services in that state as well as other Southern states and potentially nationwide if the matter reaches the U.S. Supreme Court. &nbsp;Let’s not forget that it was that court which overturned Roe v. Wade. &nbsp; When people sign consent forms prior to undergoing IVF procedures, they select options for what to do with extra or unused embryos. &nbsp;No longer will anyone in Alabama be able to donate those embryos or thaw them, as this would be the destruction of children. &nbsp;Fertility doctors in Alabama are going to have a hard time continuing to provide services which may result in “death” of these “test-tube children”, potentially subjecting to them to potential criminal prosecution. &nbsp;And while Alabama has gotten all of the attention over this matter, the ruling isn’t necessarily creating new law. &nbsp;For example, since 1986 the State of Louisiana has given legal status to embryos <a data-mce-href="https://legis.la.gov/legis/Law.aspx?p=y&amp;d=108438" href="https://legis.la.gov/legis/Law.aspx?p=y&amp;d=108438" target="_blank">LA RS 9:121-133</a> treating them as “natural persons” under the law. <a href="https://legis.la.gov/legis/Law.aspx?d=109656" data-mce-href="https://legis.la.gov/legis/Law.aspx?d=109656" target="_blank" rel="noopener">LA. CC 26</a>. In fact, this was the basis for Nicholas Loeb’s various highly-publicized, but failed, legal efforts to obtain control of embryos he created with my client, Sofia Vergara. <a data-mce-href="https://casetext.com/case/loeb-v-vergara-4" href="https://casetext.com/case/loeb-v-vergara-4" target="_blank" rel="noopener" data-mce-selected="inline-boundary">313 So.3d 346 (2021)</a>. &nbsp;&nbsp; &nbsp; In recent years the fertility industry has exploded. &nbsp;People freeze cryogenic material now regularly. People defer parenthood until their later mid-life. Think of the number of people in the deep South who will no longer have access to these types of services, not to mention what will happen with the thousand-upon-thousands of already preserved embryos which will have to go somewhere at some point in time. &nbsp;The anti-abortionists are having a field day and vowing to continue on in an effort to stop not only abortion, but also IVF treatments around the nation. &nbsp; People residing in “blue states” such as California, do not have to worry about these issues – at least not yet. &nbsp;California has been at the opposite end of the anti-abortion movement, and California law supports the continued use of IVF treatments as well as surrogacy. &nbsp;We also have should keep in mind that when the U.S. Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women’s Health (2022) 597 U.S. 215, it held that legality of abortion is question for individual states, not the Federal government. &nbsp;It should follow, therefore, that decisions concerning the legal status of embryos should also be made at the state level. &nbsp;This is not to say that the rest of the country is not at risk. &nbsp;The anti-abortion movement is already gearing up to challenge the ability to send abortion pills across state lines into those states where the procedure is now illegal. &nbsp;It would not be surprising if this movement joins forces with the “personhood” movement in an effort to convince the court that all embryos are people. &nbsp;That would spell disaster for millions of want-to-be-parents who need fertility services. &nbsp;Let’s hope for a change in the makeup of the Supreme Court before this gets that far.&nbsp; [1] Botched IVF Liquid Destroyed Embryos, Lawsuits Claim, New York Times, February 15, 2024. <a data-mce-href="https://www.nytimes.com/2024/02/15/health/cooper-surgical-ivf-embryos-lawsuits.html" href="https://www.nytimes.com/2024/02/15/health/cooper-surgical-ivf-embryos-lawsuits.html" target="_blank" rel="noopener">https://www.nytimes.com/2024/02/15/health/cooper-surgical-ivf-embryos-lawsuits.html</a> [2] Alabama Rules Frozen Embryos are Children, Raising Questions About Fertility Care, New York Times, February 20, 2024. <a data-mce-href="https://www.nytimes.com/2024/02/20/health/ivf-alabama-abortion.html" href="https://www.nytimes.com/2024/02/20/health/ivf-alabama-abortion.html" target="_blank" rel="noopener">https://www.nytimes.com/2024/02/20/health/ivf-alabama-abortion.html</a>

Are Fertility Services in Danger?

Hands of the scientist in laboratory shake a glass flasks with dissolved samples of the soil. Agrochemical examination of soil to more efficient use resources and optimize the use of fertilizers.

In the December 3, 2023 edition of the New York Times, reporter Emily Bazelon reports that anonymous sperm donation is "over" due the actions of activists around the country that are pushing for changes in several states to ban anonymous donations. &nbsp;These "activists" Bazelon reports, include persons born as a result of donation who wish to find out more about their personal backgrounds. &nbsp; The movement to ban anonymous donation is, of course, especially concerning to members of the LGBTQ community, given that 70 percent of the people who currently use sperm donation to create families consist of lesbian couples and single parents. &nbsp;The fear is based on laws in some states that will open the door to donors obtaining legal recognition as parents, undermining these existing family structures. &nbsp;In past decades it was heterosexual couples with a sterile husband who were the largest users of donor sperm. Those couples wished to keep the donation not only anonymous, but a secret from anyone else, including their children as they saw this as a way to keep their family units intact and similar to those of their friends, family and neighbors. &nbsp;But times have changed and in some parts of the US gay and lesbian families do not have the same legal protection as other families, particularly where state laws prioritize biological relationships to the work of actually raising children. &nbsp;Fortunately, California is not a state where this is an issue. &nbsp;California is one of 7 states in the US that have enacted the current version of the Uniform Parentage Act which protects families created in this manner (except where the parents allow the donor or a third party through their actions to establish the grounds to seek legal parentage). &nbsp;While Californians are mostly protected in this regard, it is still important to obtain counsel prior to embarking on a fertility process that involves donor sperm - and to make sure that you have proper legal documentation prepared as part of that process. &nbsp;The&nbsp;Times article can be found at this link: <a href="https://www.nytimes.com/2023/12/03/magazine/anonymous-sperm-donation-genetic-testing.html?smid=nytcore-ios-share&amp;referringSource=articleShare" data-mce-href="https://www.nytimes.com/2023/12/03/magazine/anonymous-sperm-donation-genetic-testing.html?smid=nytcore-ios-share&amp;referringSource=articleShare">https://www.nytimes.com/2023/12/03/magazine/anonymous-sperm-donation-genetic-testing.html?smid=nytcore-ios-share&amp;referringSource=articleShare</a>. &nbsp;Take a read to keep yourself informed and your family structure protected. &nbsp;

Is the Era of Anonymous Sperm Donation Over?

Man standing behind woman holding her pregnant belly gently. Her hands on her belly too. 

Do your "homework" before you get started. &nbsp;It can save you money and a lot of heartache.﻿Surrogacy can be a wonderful option for individuals or couples who are unable to conceive a child on their own. It offers the opportunity to build a family and experience the joys of parenthood. However, like any complex legal and emotional process, there are potential pitfalls that need to be navigated carefully. In this blog post, we will explore some common pitfalls to watch out for in a surrogacy journey.<ol><li> Choosing the Wrong Surrogacy Agency</li></ol>One of the most crucial decisions in the surrogacy process is selecting the right surrogacy agency. It is important to thoroughly research and vet potential agencies to ensure they have a strong reputation, experienced staff, and a history of successful matches. Selecting the wrong agency can lead to delays, legal issues, and unnecessary stress. It can also lead to significant unnecessary expenses.<ol start="2"><li> Inadequate Legal Representation</li></ol>Surrogacy involves complex legal agreements and contracts that protect the rights of all parties involved. It is essential to have proper legal representation to ensure that all legal requirements are met and that the rights and responsibilities of the intended parents and the surrogate are clearly outlined. Failing to have adequate legal representation can result in unforeseen legal complications down the road.<ol start="3"><li> Insufficient Emotional Support</li></ol>Surrogacy can be an emotionally intense journey for all parties involved. It is crucial to have a strong support system in place, including mental health professionals who specialize in surrogacy. Insufficient emotional support can lead to increased stress, anxiety, and strain on relationships.<ol start="4"><li> Lack of Open Communication</li></ol>Clear and open communication between the intended parents and the surrogate is vital throughout the surrogacy process. Misunderstandings, unmet expectations, and disagreements can arise if there is a lack of effective communication. It is important to establish open lines of communication from the beginning and maintain regular contact to ensure everyone's needs and concerns are addressed.<ol start="5"><li> Financial Pitfalls</li></ol>Surrogacy can be financially demanding, and it is crucial to have a comprehensive understanding of the costs involved. It is important to have a detailed budget and contingency plan in place to avoid financial surprises. Additionally, it is essential to work with a reputable agency or attorney who can provide transparency and guidance regarding financial matters.<ol start="6"><li> Legal and Ethical Considerations</li></ol>Surrogacy laws and regulations vary from country to country and even within different states or jurisdictions. It is vital to stay informed about the legal and ethical considerations specific to the surrogacy process in your chosen location. Failing to comply with these regulations can lead to legal issues and potentially invalidate the surrogacy arrangement.<ol start="7"><li> Unrealistic Expectations</li></ol>Having realistic expectations is crucial in any surrogacy journey. It is essential to understand that surrogacy is a complex process that may involve challenges and unforeseen circumstances. Unrealistic expectations can lead to disappointment and frustration. It is important to have a realistic understanding of the timeline, success rates, and potential obstacles involved in the surrogacy process.In conclusion, surrogacy can be a rewarding path to parenthood, but it is not without its pitfalls. By being aware of these potential challenges and taking proactive steps to address them, intended parents can navigate the surrogacy journey with greater confidence and success. Seeking professional guidance, being open and communicative, and staying informed about legal and ethical considerations are key to a smooth and positive surrogacy experience.Remember, each surrogacy journey is unique, and it is important to consult with experienced professionals, such as attorneys specializing in assisted reproductive technology law, to ensure that all aspects of the surrogacy process are handled appropriately and legally.Note: The content provided in this blog post is for informational purposes only and should not be considered legal or medical advice. Consult with a qualified attorney or medical professional for personalized guidance and support.

Pitfalls to Watch Out For in a Surrogacy Arrangement

<h1>Pros and Cons of Surrogacy: Exploring the Options</h1>Surrogacy is an assisted reproductive technology process that allows intended parents to have a child with the help of a gestational carrier. It is a complex and emotionally charged topic that raises important ethical, legal, and social considerations. In this blog post, we will explore the pros and cons of surrogacy to provide a comprehensive understanding of the various perspectives surrounding this practice.<h2>Pros of Surrogacy</h2><ol><li>Biological Parenthood: Surrogacy offers a unique opportunity for individuals or couples who cannot conceive naturally to have a child who is genetically related to them. It allows intended parents to experience the joy of biological parenthood and the bond that comes with it.</li><li>Medical Benefits: Surrogacy can be a viable option for individuals who have medical conditions that prevent them from carrying a pregnancy to term. For example, women who have undergone a hysterectomy or have a high risk of complications may choose surrogacy as a safer alternative.</li><li>Control and Involvement: Unlike other forms of assisted reproductive technologies, surrogacy provides intended parents with the ability to participate actively throughout the journey. They can be involved in the selection of the gestational carrier, prenatal care, and the birth of their child. This level of control can offer a sense of security and reassurance.</li><li>Legal Protections: Working with an experienced surrogacy attorney ensures that all parties involved have their legal rights protected. Contracts are carefully drafted to outline the rights and responsibilities of both the intended parents and the surrogate, which can help prevent potential disputes down the line.</li><li>Emotional Connection: Surrogacy often involves building a close relationship between the intended parents and the gestational carrier. This connection can lead to long-lasting friendships and create a positive, supportive environment for everyone involved.</li></ol><h2>Cons of Surrogacy</h2><ol><li>Financial Burden: Surrogacy can be an expensive process, involving medical procedures, legal fees, agency costs, and compensation for the surrogate. The financial burden associated with surrogacy can be a significant barrier for many individuals or couples hoping to pursue this option.</li><li>Emotional Challenges: The emotional journey of surrogacy can be complex and intense. For intended parents, the process may entail feelings of helplessness, anxiety, and uncertainty. For the surrogate, there may be emotional challenges associated with carrying a child for someone else and letting go after the birth.</li><li>Ethical Concerns: Surrogacy raises several ethical questions, such as whether it commodifies the human body or exploits women who choose to become gestational carriers. Critics argue that it may lead to the exploitation or coercion of vulnerable individuals, and the industry must be closely regulated to prevent such issues.</li><li>Legal Complexities: Surrogacy laws vary significantly between jurisdictions, and navigating the legal landscape can be complex. Some countries ban surrogacy altogether, while others have strict regulations in place. Intended parents must ensure they understand and comply with the applicable laws to avoid legal complications.</li><li>Potential Risks: As with any medical procedure, there are inherent risks involved in surrogacy, both for the surrogate and the intended parents. These risks can include medical complications, psychological stress, and the potential for legal disputes.</li></ol><h2>Conclusion</h2>Surrogacy is a deeply personal and highly individualized decision that should be carefully considered by all parties involved. It offers a range of benefits, including the opportunity for biological parenthood, medical advantages, emotional connections, and legal protections. However, it is essential to acknowledge the potential drawbacks, such as the financial burden, emotional challenges, ethical concerns, legal complexities, and potential risks. Seeking expert guidance from professionals in the field, such as reproductive technology attorneys, can help individuals make informed choices and ensure a smooth surrogacy journey.Disclaimer: This blog post is intended for informational purposes only and should not be considered legal advice. Individuals considering surrogacy should consult with an experienced attorney to understand the specific legal implications and requirements in their jurisdiction.