Surrogacy
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According to the American Society for Reproductive Medicine (asrm):
“Assisted Reproductive Technologies are all treatments which include the handling of eggs and sperm and/or embryos. Some examples of ART are in vitro fertilization (IVF), gamete intrafallopian transfer (GIFT), pronuclear stage tubal transfer (PROST), tubal embryo transfer (TET), and zygote intrafallopian transfer (ZIFT).”
To learn more about assisted reproductive technology you can read the blog post: “What is Assisted Reproductive Technology?“
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“Third party reproduction” refers to involving someone other than the individual or couple that plans to raise the child (intended parent[s]) in the process of reproduction. – American Society for Reproductive Medicine (ASRM).
Egg donation, sperm donation, embryo donation, and gestational surrogacy are all forms of third party reproduction.
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Surrogacy is a way for individuals or couples to grow their family by having a child or children with the help of a gestational carrier or surrogate. The gestational carrier or surrogate carries and births the child(ren) conceived through IVF and embryo transfer for the benefit of the intended parents without becoming a legal parent.
Further reading about surrogacy:
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Legally, there are five requirements to be a surrogate or gestational carrier in Maine according to The Maine Parentage Act: Title 19-A Section 1931. In order to qualify as a surrogate or gestational carrier you must:
(1) be at least 21 years of age;
(2) have previously given birth to at least one child;
(3) have completed a medical evaluation and a mental health evaluation;
(4) have independent legal representation paid for by the intended parents; and
(5) not contribute eggs or genetic material unless you are a family member of one intended parent.
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New York sets forth a list of eligibility requirements for gestational surrogates in The Child Parent Security Act, and specifically New York Family Court Act §581-402.
These requirements include: an age requirement, citizenship/residency requirement, and strict legal requirements relating to independent legal representation by a licensed New York attorney for all parties to the Gestational Surrogacy Agreement. New York surrogacy law also requires a specific life insurance policy, and medical insurance paid for by the Intended Parents on behalf of the Gestational Carrier. Medical evaluations and mental health evaluations are also required and must meet all requirements set forth by the New York Commissioner of Health as specified in the New York State Department of Health Clinical Guidelines.
Traditional surrogacy remains illegal in New York.
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Some forms of assisted reproductive technology provide couples and individuals struggling with fertility the option of having a child who is genetically related to them, or sometimes genetically related to one individual in a couple. It also provides the opportunity for establishing legal parentage of their child prior to birth.
For couples who choose embryo donation, while a genetic connection may not exist, it provides the individual gestating parent the opportunity to experience pregnancy, and their partner to have the experience of a non-gestating parent throughout the pregnancy.
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Yes. You are in total control of deciding who you work with. The surrogacy relationship needs to be a comfortable match for all parties involved.
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No. As a surrogate you are entitled to independent legal representation of your choosing. Your attorney’s fees will be paid for by the inteded parents.
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Not gestational surrogates AKA gestational carriers! Gestational surrogacy arrangements are significantly more common than traditional surrogacy arrangements.
Gestational Carrier: a woman who carries a child she is not genetically related to for the benefit of the intended parents or intended parent.
Traditional Surrogate: a woman who both provides the egg for conception and carries a child for the benefit of the intended parents or intended parent.
Eggs, Sperm, Embryos
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Many couples find themselves in the situation of deciding what to do with the remaining frozen embryos once their families are complete. You may choose to donate these embryos to another individual or couple struggling with infertility. If you are open to embryo donation, please know you can donate anonymously or openly. You may also choose to donate these embryos to scientific research. For more information on this topic visit Remaining Embryos: Now What?
Issues arise when couples divorce with remaining cryopreserved embryos and disagree about the disposition of these remaining embryos. What will a court do if one party wants to have children from the embryos and one party wants to have the embryos discarded? What happens when both parties want the embryos? Who will be the legal parents of any child born from the embryos at issue?
If you have remaining cryopreserved embryos and want to address the disposition of these embryos upon your death or divorce, please consider drafting an embryo disposition agreement.
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According to the American Society for Reproductive Medicine (asrm):
“Assisted Reproductive Technologies are all treatments which include the handling of eggs and sperm and/or embryos. Some examples of ART are in vitro fertilization (IVF), gamete intrafallopian transfer (GIFT), pronuclear stage tubal transfer (PROST), tubal embryo transfer (TET), and zygote intrafallopian transfer (ZIFT).”
To learn more about assisted reproductive technology you can read the blog post: “What is Assisted Reproductive Technology?“
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Embryo donation is a form of assisted reproduction in which remaining embryos created through in vitro fertilization (IVF) for one couple or individual are donated to another hopeful parent or parents. Embryo donation is a path to parenthood for an increasing number of individuals including single mothers by choice.
Embryo donors are not compensated beyond payment for cryopreservation expenses, medical screenings, and legal expenses.
If you are considering donating your embryos or receiving donated embryos, please consult our Resources tab for a list of reputable embryo donation agencies.
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An embryo disposition agreement addresses what happens to your embryos in the event of death or divorce. Embryo disposition agreements can be part of your estate planning documents, or stand alone as a legally binding contract addressing how your cryopreserved genetic material will be disposed, donated, or discarded upon the occurrence of a future event.
For more information on this topic, see:
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If you are working with a known or directed donor you need to enter into a legally binding sperm donation contract. This contract should address who is a legal parent of any child conceived through sperm donation, clarify expectations surrounding future contact, and explicitly detail other provisions specific to your sperm donation arrangement.
Always speak with an experienced assisted reproduction attorney before drafting a sperm donation contract to ensure you comply with the laws in your jurisdiction.
If you are purchasing sperm from a sperm bank, fertility clinic, or other cryobank, it ish a good idea to have an attorney review any forms prior to signing.
Adoption
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No. Birth certificates are administrative documents, not court orders. Court orders are entitled to full faith and credit in all U.S. states, whereas administrative documents do not have the same protection. While your name on a birth certificate may be evidence of your intention to be a legal parent, it is not alone enough to establish your legal parentage.
Depending on the details of your situation, you may pursue a stepparent adoption, second parent adoption, or other judgment of parentage to legally secure your parentage. Depending on your jurisdiction, pre-birth orders of parentage or post-birth orders of parentage may be available to you. Consult with an assisted reproduction attorney to ensure your parentage is protected.
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Stepparent adoptions are the legal process by which the spouse of a gestational parent can legally secure their parentage to their child. Establishing legal parentage as a stepparent can be critical for a child’s legal status, emotional well-being, financial security, and to equalize status among siblings raised in the same home.
Janene has experience assisting same-sex couples navigate the stepparent adoption process, in addition to filing pre-birth judgments of parentage and post-birth judgments of parentage when appropriate.
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Similar to a stepparent adoption, a second parent adoption permits unmarried couples to adopt each other’s children. This process creates a legally recognized parent-child relationship between the second parent and the child without causing the first legal parent to lose their rights to the child. A second parent’s legal status should reflect the value of their role in their children’s lives.
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An open adoption is one in which the birth mother and the adoptive family know the identity of each other and there is a mutual agreement to foster a relationship between the child and the birth mother. Although the birth mother will have a relationship with the child, the adoptive parents retain all legal parental rights regarding the child.
A closed adoption is one in which the birth mother has no direct contact with the adoptive parents and the adoptive parents know little about the birth mother.
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Complying with the Interstate Compact for the Placement of Children (ICPC) is what legally allows for the transport of a child from one state to another after being placed for adoption. It is an important step in any multi-state adoption process. Your attorney can explain all the details to you in greater detail.
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This is a question that cannot be answered without knowing a number of variables including, but not limited to, whether you are working with an agency or independently. Adoption agencies charge fees to assist you in the adoption process, but the fees and services included vary from agency to agency.
Adoptions through the foster care system are essentially free with the exception of any necessary court fees and the required home study. All prospective adoptive parents must pay for and participate in a home study.
While adoption can be expensive, there are a number of grants and loans available to help adoptive parents. There are also tax credits available to adoptive parents. For more information please see this recent article summarizing the funds available to adoptive families in honor of National Adoption Month.
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The home study is a written report provided to the court to help determine whether your home is a stable environment in which to raise a child. The home study process includes a social worker meeting with you on a number of occasions, an analysis of your home environment including the people you live with, and a background check.
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Prospective adoptive parents must pass an in-depth home study and background screening in addition to other criteria depending on which agency they work with.
