The International Council on Infertility Information Dissemination, Inc

Celebrities Who Used Surrogacy to Build a Family by Zoe Hemenway

 

Register for the Surrogacy Webinar: Thursday 12:00 Noon on April 5, 2018 anyone interested in surrogacy (intended parents or potential surrogate mothers) are welcome to participate.

Celebrities are people just like everyone else. Some want to get married and start a family, some do not. Some celebrities find starting and building their families easy but others like many dealing with infertility and pregnancy loss struggle with the physical and emotional side to fertility just like "regular" people.

On the surface it may seem like celebrities have it easy, and that they can do whatever they want with no struggle. “Regular,” everyday people often don’t expect to hear about struggles with infertility, especially coming from someone who is famous. It’s somewhat of a taboo subject, and many women feel ashamed admitting they struggle with it. The reality is it can be extremely hard or even impossible for a woman to get pregnant and they may have to look for other options to build a family.

 

Kardashian West and Kanye West recently had their third child via a surrogate. Kardashian West admitted that her second pregnancy was very high risk due to having preeclampsia and her doctor informed her that she should not carry out any more pregnancies. The Wests, wanting another child, opted to use a surrogate and Chicago West was born this January. While the Wests are some of the most recent and possibly the most prominent celebrities to use a surrogate, they are certainly not the only ones.

 

Lucy Liu (Left) welcomed her son at 46 through a surrogate. Due to her age and work schedule, she believed surrogacy was the best option for her. She embraces the untraditional way she chose to have a family.

 

 

 

 

 

 

 

 

Nicole Kidman and Keith Urban (left) welcomed their second daughter via surrogacy. Kidman also has two adopted children with her ex-husband Tom Cruise.

Many celebrities have shared their struggle with infertility.

 

 

 

Tyra Banks wanted to be a mom for years before she had her son, York. She waited for the right moment due to her incredibly busy career, but when the time finally came she went through countless struggles with infertility. Banks and her, now ex-boyfriend, Erik Asla call their son their “miracle baby boy." Surrogacy is the family-building method that finally gave them the child they wanted for years.

 

Jimmy Fallon and his wife Nancy Juvonen tried to have a baby for five years before surrogacy helped them build their family and gave them their baby. Fallon wants his story to give other couples hope because he knows how difficult this journey can be.

 

 

 

 

                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                            

Some celebrities, such as Elton John and his husband David Furnish (left)  and Neil Patrick Harris and his husband David Burtka(bottom-left), are gay and may choose to go through surrogacy or adopt. John and Furnish have two sons, both of whom came from a surrogate.

 

 

 

 

Harris and Burtka have twins via a surrogate, each of them being the father of one, though they do not know which one is biologically theirs

   

 

 

 

Marla Neufeld, Esq.

Tags: 

Surrogacy & 3RD Party Reproduction Webinar

Meet Marla Neufeld, Esq. Marla will answer your questions on April 5, 2018, at noon (12-1PM)  The topic is Third-Party Reproduction including donor egg, donor sperm and surrogacy.

 

Donor and Surrogacy Advice 03/21/18 from Nancy Hemenway on Vimeo.

 

Donor and Surrogacy Advice 03/21/18 from Nancy Hemenway on Vimeo.

 

Baby Steps to Surrogacy: An Interview with Attorney Marla Neufeld, Esq.

Marla with her husband and twins
Photo of Marla Neufeld, Esq.

By: Marla Neufeld, Esq.

Marla with her husband and twinsI was under the impression that once you decide to start a family, you toss the birth control and give it the 'old college try'. BAM! There you are in your cute maternity jeans, booking your family trip to Disney World. I was surely mistaken. The reality my husband and I suffered through years of failed infertility treatments, disappointment, and expense. We attempted IUI (intrauterine insemination), IVF (in vitro fertilization), injected boxes of hormones, endured multiple miscarriages, and wished upon "good luck" charms.  We decided we had endured enough and yet didn't want to give up our dream of having our biological child; we reached a 'baby making' crossroads and reassessed our game plan.  Several frozen embryos remained from a prior IVF cycle. I could have tried IVF again by means of a FET (frozen embryo transfer). As much as I wanted to experience pregnancy my chance of success was very slim; ultimately our doctor approved us for surrogacy.
 

The process inched forward. Finding a surrogacy agency, surrogate, attorney, finalizing medical and psychological testing, and finishing the surrogacy contract took six months. Financial concerns are of paramount importance as surrogacy can range from $60,000 to $150,000. Some expenses include medical costs for IVF, medications, and two attorneys. One attorney writes the contract and another attorney to review contracts for the surrogate, surrogate agency fee, medical insurance for the surrogate and reasonable living expenses of the surrogate.

Each state has different laws regarding surrogacy. Some states make it a crime to compensate a surrogate. Other states have surrogacy friendly laws that provide guidelines on compensation to surrogates. These surrogacy friendly states also set clear rules on how those using a surrogate, commonly referred to as the commissioning couple or intended parent(s), can be named as the legal parents of the child without having to go through an adoption or other means of finalizing parental rights. There two types of surrogacy: (i) "traditional" where the child is conceived using the egg of the surrogate, and, (ii) "gestational" which is the more common form of surrogacy where the egg is that of the intended mother or egg donor barring the surrogate any parental rights to the resulting child (or children).

Selecting the Surrogate

My husband and I interviewed multiple candidates before selecting our amazing surrogate. The first surrogate we disqualified based on moral differences. We excluded second potential surrogate because she did not pass physical screening requirements. The third time was most delightfully the charm. This surrogate's husband and she were warm, friendly, positive, and genuinely were excited to help us expand our family.

The intended parents secure a surrogate that has cleared a background check, psychological assessment by a licensed psychologist, and medical examination by a licensed reproductive endocrinologist. Intended parents may locate a surrogate on their own (i.e. Internet, friends, family) or through fertility clinics or surrogacy agencies.

There are advantages to using a surrogacy agency. Agencies provide (i) provide a number pre-screened surrogate candidates quickly. Agencies address many details you might not realize are important. Such examples may include asking the right questions to your potential surrogate (regarding selective reduction and termination of the pregnancy). Agencies also coordinate various matters such as doctor appointments, transfer embryos from storage facilities to fertility clinics, and other issues.

Some states have legal requirements for the qualifications of a surrogate (i.e. age). Family-building through surrogacy incorporates many practical and medical considerations.  Some concerns to think about include:

  • Does the surrogate have children
  • Does she have experience?
  • Is her pregnancy and birth history without complications?
  • Does she live in a stable and healthy environment for supportive family and friends? 
  • Is she not any form of governmental assistance?
  • Is there a criminal history?

 When selecting a surrogate be sure the surrogate is emotionally stable and that her goals mirror the intended parents on the issue of termination or selective reduction of the pregnancy.  In an unexpected event such as a neurological, physical, genetic or congenital defect, deformity or other disability with the fetus, are the surrogate and intended parents on the same page.

 

The surrogate and intended parents may include termination contingencies in their contracts (i.e. in the case of multiples, or genetic anomalies). However, ultimately under constitutional principles, the surrogate has the right to change her mind. The intended parents cannot force a surrogate to terminate or prevent her from carrying a pregnancy to term.  Therefore, it is critical for this topic to be discussed between the parties and with the licensed therapist to make sure everyone is on the same page.

Health Insurance

The intended parents start the process of obtaining or confirming health insurance for the surrogate. Maternity benefits are based on the surrogate's health insurance if she has any. Insurance policies at times exclude a surrogacy from coverage for health insurance benefits. It is important to have the proper health insurance protection because intended parents are responsible for all health insurance costs for the surrogate relating to the pregnancy.

Selecting the Fertility Clinic

Simultaneous with the selection of a surrogate, the intended parents select the fertility clinic they wish to use to screen the surrogate and create the embryos for transfer into the surrogate. Confirming that the fertility clinic selected works with surrogates is crucial because of the specific Federal law guidelines. Not all fertility clinics offer this feature to their patients. My fertility clinic did not offer surrogacy services, so I had to switch clinics and ship my frozen embryos to another fertility practice. Based on the location of the surrogate, you may need to select a second fertility clinic that is closer to the surrogate to monitor the surrogate during the process to avoid her having to travel for routine appointments.

Finalize a Surrogacy Contract

Before a surrogate begins fertility medications, a gestational surrogacy contract must be drafted.  A contract or similar type of agreement is reviewed and negotiated by the attorneys and then fully executed by the intended parents and surrogate (her spouse or partner if applicable). The intended parents and the surrogate should be represented by separate attorneys (both to be paid by the intended parents). It is critical to have the proper documentation in place prior to embarking upon the fertility procedures with your surrogate in accordance with the appropriate state laws.

The gestational surrogacy contract is an agreement detailing the parties' rights, obligations, intentions, and expectations.  This third party reproductive technology agreement and arrangement covers such subjects as:

  • Parental rights;
  • Custody issues;
  • Compensation;
  • Location of delivery;
  • Future communications between the parties;
  • Insurance;
  • Control over medical decisions during the pregnancy;
  • Number of transferred embryos;
  • Payment of medical bills;
  • Liability for medical complications and
  • Any other provisions required by applicable state law.

 

Establishment of an Escrow Account

Prior to the embryo transfer and throughout the pregnancy, an escrow agent typically delivers the money being paid to the surrogate according to a schedule established by the contract. The intended parents and surrogate should not exchange money during the surrogacy journey.  All financial obligations are handled through the escrow agent to allow the intended parents and surrogate to focus on the pregnancy.

 

Transfer from the Fertility Clinic to an Obstetrician

The parties agree on an obstetrician so that at 8-10 week's gestation the surrogate leaves the care of a fertility clinic. She transfers to an obstetrician who participates in her insurance plan. Fertility medications for the surrogate may continue for twelve (12) weeks of pregnancy.

Coordination of Birth with Selected Hospital

Around the second trimester, the intended parents' attorney coordinates with the risk manager or nurse administrator of the obstetric department of the selected hospital. Coordination is important to ensure the delivery process is smooth for both parties. A crucial part of this arrangement is to explain the surrogacy arrangement to the hospital staff. The staff must be clear about the surrogacy arrangement, so the intended parents have full hospital access. Many hospitals formulate a birth plan between the parties including those who can access the nursery. Other considerations are whether the intended parents want a separate room for visitation, and who will have access to the delivery room in the event of a vaginal birth or Caesarean section.

 

Establishing Parental Rights of Intended Parents

After the birth, the procedures for removing the surrogate from the birth certificate and placing the intended parents' names on the birth certificate is a matter of state law. Consultation with an experienced third party reproductive attorney is critical. Assistive reproductive technology attorneys should understand and explain the process, procedures and most importantly the risks based on the state laws.

 

Note: For intended parents who are citizens of another country who use a surrogate in the United States, it is also important to discuss immigration issues. Children born in the US have birth certificates for the state in which they birthed. International intended parents need to be sure their child is granted citizenship and allowed to enter the home country with the intended parents. 

Egg/Sperm Donation Considerations

There are additional considerations for intended parent(s) utilizing a sperm or egg donor. Donated genetic material obtained at frozen egg/sperm banks, through fertility clinics, or through donation agencies need additional legal contracts. Their contracts, based upon the specific state laws involved, are required between the intended parents and donor (either with an anonymous or known donor). Legal contracts protect the rights and obligations of all parties involved. There are additional medical screening requirements by the fertility clinic when there is a donation of genetic material.

In Summary

Prior to my infertility experience, I practiced law as a transactional attorney at a large Florida firm. My infertility and surrogacy journey inspired me to shift my practice to exclusively surrogacy and assisted reproductive technology law. My passion for couples who need third party assistance awarded me the pleasure of doing this type of work. I know personally, the daunting prospect when considering surrogacy. I can now help others navigate through the system to understand the process and the legal implications. As a fun side note, my husband and I are among celebrities that have ventured down the surrogacy road such as Jimmy Fallon, Sarah Jessica Parker, and Elton John. We received unbelievable support from our family, friends, community, and new surrogacy family to help make what seemed impossible become a reality. As my surrogate always said, "It takes teamwork to make the dream work".

 Photo of Marla Neufeld, Esq.Marla Neufeld, Esq: Marla is the legal chair of Greenspoon Marder's Surrogacy Law practice group, a full-service Florida law firm, founded in 1981. Marla's personal experience with surrogacy affords her the ability to provide an array of available third party reproductive technologies and adoption laws in Florida. Marla is honored to represent heterosexual and same sex married and unmarried couples and individuals and offers free consultations to those interested in surrogacy or adoption.

Contact Marla at 954-761-2929 or Marla.Neufeld@gmlaw.com

Show Me the Money-Expenses Relating to ART by Jeffrey Kasky and Marla Neufeld

Show Me the Money—Expenses Relating to ART

by Jeffrey Kasky and Marla Neufeld

It’s hard for anyone in the depths of assisted reproductive technology (ART) procedures to believe that having a child can actually be free for some people! A wide range of techniques are offered for ART pro- cedures and with that comes a range of fees for the medical procedures involved. Examples of variables that impact the cost depend on if an egg or sperm donor is required, if the cycle is a fresh IVF cycle or frozen IVF cycle, the medication protocol, and if there are any medical complications that arise during the process. The location where the ART procedures take place impacts fees as they vary depending on the city, state, or country. Studies show that in areas with fewer infertility clinics, the costs are actually higher for treatment; an area with a higher cost of living does not necessarily equate to higher ART costs.

Costs of Common ART Procedures

It is difficult to find an average for fees of ART procedures as many fertility clinics charge different amounts; most clinics do not publish the treatment rates or payment terms on their website. Patients should have a consultation with the clinic’s financial staff to formulate a budget and payment plan for the medical expenses.

The American Bar Association (ABA) Guide to Assisted Reproduction

Questions to Ask Fertility Clinics Relating to Costs

It is challenging to know what questions to ask a fertility clinic when you are new to the infertility world and don’t know the intricacies of ART finances. It is recommended that patients considering ART do their due diligence in the begin- ning and have a meeting with the fertility clinic’s financial department to have a detailed conversation about the costs involved, payment plans and financial assistance options. Some questions to guide you in talking to the financial depart- ment include:

1.  Does the clinic have a detailed list of procedures and corresponding costs? This list should include the common ART procedures like IVF and IUI, medical procedures associated with standard screening of new pa- tients, and should also include additional procedures that may be neces- sary such as ICSI, PGD, storage fees for frozen embryos, etc.

2.  Are medications, tests, lab work, ultrasounds, and consultations in- cluded in the cost of treatment?

3.  If necessary, what are the costs, including screening costs, involved when using an egg donor, sperm donor, or surrogate?

4.  What are the typical costs associated with medications?

5.  Does the fertility clinic provide financial counseling and psychological counseling? If so, are there fees for these services?

6.  Does my medical insurance cover any of the medications, testing, moni- toring, or procedures and does the fertility clinic verify coverage or is that the patient’s responsibility?

7.  When is payment due? Is payment required upfront? Is a payment plan available?

8.  Does the fertility clinic offer a reduced rate if you purchase an IVF package?

Surrogacy Costs

The expenses in surrogacy are multifaceted. Not only do you have to consider the costs associated with the ART medical procedures described above but you also have to factor in other expenses such as the “compensation” and/or “payments” to a surrogate, among other expenses.When doing your research on budgets, keep in mind that every state has different standards for costs associated with the process. For example, some states prohibit “compensation” to the surrogate. In these states, the concept of “altruistic surrogacy,” wherein the surrogate does not get paid a fee for her services, benefits the intended parents in that they can only pay the surrogate’s out-of-pocket expenses and medical expenses. However, surrogates looking to be compensated for their efforts will look outside such states, which can thus be a detriment for families in the prohibitive state trying to find a good surrogate match. It’s a “Catch-22.”

TIP: Part of ART is mastering the “art” of formulating a budget for each procedure taking place.

Financial Implications of ART

Compensation and Payments to the Surrogate

The notion of “compensation” and “payment” versus “reimbursement” to a surrogate is somewhat controversial. The language used may carry importance insofar as whether the financial portion of the arrangement could or should be considered “income” to the surrogate for taxation purposes.

A surrogacy contract sets out the financial responsibility, however it may be framed, and creates a payment plan that the intended parents will pay their surrogate. When working with a surrogacy agency, the agency establishes the payments made to the surrogate and there is little to no negotiation between the intended parents and surrogate as to what she will be receiving financially. When self-matching occurs and no agency is involved, the parties, either directly or through the lawyers, negotiate the payment terms to a surrogate. When using a surrogate, with an agency or self-matched, the amounts paid to a surrogate will be different depending on where the surrogacy is taking place.

A surrogacy budget can be broken down into three categories: (i) payments the surrogate should receive, (ii) payments the surrogate may receive depending on whether certain events occur, and (iii) payments to third parties involved in the process.

Payments the Surrogate Should Receive

As seen in most surrogacy contracts, from the moment a surrogate is selected until a determined time after the child is born, intended parents can be “on the hook” for payments to a surrogate for weeks or months post birth (depending on the contract). Below are the common payments made to a surrogate:

Surrogate’s compensation—Again, care must be paid to use of terms such as “compensation,”“payment,”“fee,” and the like. With that said, this is her “base fee” that typically begins once she is confirmed to be pregnant and continues to receive financial support every four (4) weeks thereafter until the child is born. Many surrogacy contracts require the surrogate to reach a certain week of pregnancy in order for her to receive her en- tire agreed amount (for example, thirty weeks, gestation for multiples, thirty-two weeks, gestation for a single child), and if she delivers prior to that determined week, then her compensation would be paid up to that point. A surrogate who has already successfully completed at least one surrogacy will typically be able to receive a higher amount of support than a first-timer.

Life insurance and disability insurance policy for the surrogate—The intended parents are usually required to take out a term life insurance policy and sometimes a disability insurance policy for the surrogate naming someone in the surrogate’s family as the beneficiary in case something happens to her during the pregnancy.

Medication start—The surrogate receives a payment at the start of her injectable hormone medications or other type of medication (not including birth control) to prepare her uterus for the embryo transfer.

Mock cycle—Surrogate may receive a payment should the fertility clinic perform a mock embryo cycle, which is essentially a dry run of preparing the surrogate’s body for the real embryo transfer.

Embryo transfer—The surrogate receives a payment on the day of the embryo transfer.

Monthly allowance—To cover the surrogate’s daily expenses for the pregnancy such as prenatal vitamins, local gas expenses, and groceries, the intended parents may choose to pay the surrogate a monthly allowance instead of the surrogate having to itemize and account for the incidental expense

Maternity clothes—The intended parents pay the surrogate an allowance for maternity clothes. The maternity clothing allowance should be higher if the surrogate is carrying twins.

Surrogate’s travel—Some surrogates live close to a fertility clinic and hospital, but some may live in different cities, states, or countries than the intended parents. In such cases, the intended parents are required to pay for the surrogate’s (and sometimes the surrogate’s partner or spouse) out-of-pocket travel expenses for all procedures involved including the initial screening, monitoring, embryo transfer, doctor appointments, and delivery of the child. The travel expenses may include gas, car rental, taxi, hotels, airfare, trains, and a per diem amount if the travel requires an overnight stay.

Typical Payments the Surrogate May Receive

Loss of reproductive organs—Pregnancy is risky; surrogates are compensated should something happen to any of her reproductive organs during the course of the pregnancy. There is a monetary value associated with the loss of the surrogate’s fallopian tubes, ovaries, or uterus.

Embryo transfer cancellation fee—Some surrogates receive a flat fee if the medications begin but the embryo transfer is cancelled whereby such cancellation is not a result of the surrogate’s intentional actions.

Selective reduction or elective termination—Should a selective reduction or elective termination of the pregnancy occur that is permissible under the contract (i.e., the surrogate did not do these procedures against the wishes of the intended parents), the surrogate receives a fee for having to undergo such procedures.

Invasive procedures—An invasive procedure resulting in a payment to the surrogate will include any procedure relating to the pregnancy requiring administration of IV fluids or an overnight stay at the hospital, with the exception of the birth of any child, such as amniocentesis. Invasive procedures should not include any standard procedures relating to the fertility treatments.

Ectopic pregnancy—Should an ectopic pregnancy occur, the surrogate is compensated.

Miscarriage—Should a miscarriage occur, the surrogate is compensated.

Cesarean section—Should the surrogate require a C-section, the surrogate is compensated.

Multiples—If the surrogate is carrying twins or multiples, she receives additional payments for each fetus.

Bed rest—If the surrogate is placed on physician-ordered bed rest (cannot be self-initiated), the surrogate receives her verifiable lost wages for the days she misses work. Some contracts pay surrogates her net lost wages while others pay gross lost wages. If a surrogate has a short-term disabil- ity (STD) policy, the intended parents will only be responsible for the lost wages that are not covered by the STD policy. The contract should establish how long the intended parents need to pay the surrogate’s lost wages once the child is born. Additionally, some contracts require the intended parents to pay limited lost wages to the surrogate’s partner or spouse for the days they accompany her to certain medical appointments or the delivery of the child.

Childcare and housekeeping—The intended parents may be responsible to pay for the surrogate’s reasonable childcare and housekeeping ex- penses during the pregnancy (this may be covered by the monthly allow- ance), delivery, postdelivery recovery, and if the surrogate is placed on physician-ordered bed rest.

Breast milk pumping—Should the surrogate agree to pump breast milk postbirth, the intended parents should pay either a weekly or monthly fee to the surrogate along with any expenses associated with pumping, such as equipment, milk bags, and shipping. It is important to discuss the parties’ rights and responsibilities insofar as the delivery of the breast milk is concerned. If the milk does not arrive at the par- ents’ home in usable condition, does the surrogate have to forego her payment for that period’s pumping? We believe that the responsibility should be on the parents to ensure (pun) that the milk arrives in useable condition.

Spoiling your surrogate—In an expression of gratitude towards a surro- gate, many intended parents voluntarily spoil their surrogate with tokens of their appreciation such as buying them food, prenatal massages, and gifts for the surrogate and her family. Before you undertake any course of action that is not contemplated in the contract, however, you should check with your attorney to make sure that what you’re planning to do is legal in your jurisdiction!

Payments to Third Parties Involved in the Surrogacy Process

Fertility doctors—The intended parents are required to pay any expenses associated with the fertility clinic for the surrogate and intended parents, which includes the screening of the surrogate, including FDA screening consultations, medications, the embryo transfer, monitoring, blood work, and ultrasounds.

Obstetrician—The intended parents are required to pay any expenses as- sociated with the obstetrician for the surrogate and whatever is not cov- ered by the health insurance of the surrogate.

Hospital—The intended parents are required to pay any expenses associ- ated with the hospital for labor and delivery, including the hospital stay for the surrogate and any complications relating to the surrogate and whatever is not covered by the health insurance of the surrogate. The surrogacy contract should provide how long the intended parents are re- sponsible to pay for the medical expenses of the surrogate once the child is born. Note that the hospital bills associated with the resulting child are charged to the insurance of the intended parents, not the surrogate’s insurance.

Medical insurance review—If the intended parents have the medical insur- ance of the surrogate reviewed by a professional to determine if any ex- clusion for surrogacy applies, they are responsible for any fees associated with this service.

ART lawyers—The intended parents are responsible to pay their attorney to draft the surrogacy contract and handle the court proceedings neces- sary to finalize their parental rights of the child. The intended parents also pay for a separate attorney to represent the surrogate. Other legal costs associated with this process may include court filing fees and certified copies.

Trusts and estates lawyers—It is recommended that the intended parents get their estate plan in order to prepare for the child and are responsible to pay for an attorney to draft any necessary wills, trusts, or other estate documents.

Immigration lawyer—When going abroad to use a surrogate or if the intended parents are from another country, an immigration lawyer is in- volved to ensure the proper citizenship of the child at the expense of the intended parents.

Escrow company—The intended parents pay for the escrow services to administer the payments to the surrogate throughout the surrogacy process.

Background information of surrogate—Usually these expenses are built into the agency costs, but intended parents may need to pay for a crimi- nal background check, home study, or other investigative research on a surrogate.

Surrogacy agency—If the intended parents require a surrogacy agency, they are required to pay the agency fee.

Egg donor agency—If the intended parents require an egg donor agency, they are required to pay the agency fee.

Sperm bank—If the intended parents require a sperm donor, they are re- quired to pay the sperm bank fee or fee to the sperm donor directly.

Psychologist—The intended parents pay for the psychological screening that is required when using a surrogate.

Nutritionist—If the surrogate requires the assistance of a nutritionist, it is at the expenses of the intended parents.

Acupuncturist—If the surrogate requires the assistance of an acupunctur- ist, it is at the expense of the intended parents.

Embryo storage facility—If the intended parents have frozen viable em- bryos, should they want to continue freezing the embryos for a length of time, they are required to pay storage facility fees.

Courier fee—If the intended parents want to have a pro- fessional transport the frozen embryos from one fertility clinic to another the fertility clinic (i.e., if the donor is in another location from where the embryo transfer occurs), they are required to pay for the proper trans- portation of the frozen genetic material.

CAUTION

Do you see a theme here? EVERYTHING is at the expense or at least the responsibility of the intended parent(s). The surrogate is responsible for NOTHING. Yes, hopeful parents, it’s expensive, and the entire burden of such expense is put on you.

Egg Donation Costs

The term donor is really a misnomer as egg “donors” are not generally donating their genetic material without being compensated. Leading ART organizations and ART professionals agree that donors of genetic material should be paid for their time, effort and inconvenience, and that the compensation received is not based according to the planned use of the eggs, the number or quality of eggs retrieved, the number or outcome of prior donation cycles, or the donor’s ethnic or other personal characteristics. The costs associated with egg donation can be separated into two main categories: (i) payments to the egg donor, and (ii) payments to third parties involved in the egg-donation process.

Payments to the Egg Donor

Egg Donor Fee—The egg donor receives compensation for providing her eggs. Such fee is commonly paid in two installments. One payment is required upon the start of injectable medications for the egg donor and the second is required upon the retrieval of the eggs (regardless if any eggs are retrieved and/or the quality of the eggs, unless it was the intentional fault of the egg donor). While compensation to egg donors varies, the American Society for Reproductive Medicine (ASRM) provides guidelines on compensation to donors in that total payments to donors in excess of $5,000 require justification and sums above $10,000 are not appropriate. In addition to limiting compensation, the nonbinding guidelines forbid paying additional money to egg donors for specific traits such as academic history, physical characterizes, or prior success as a donor.

Complications Insurance Plan for the Egg Donor—Intended parents may be required to purchase a complications policy for the egg donor to cover any major complications that may arise during the medical procedures for the egg donor.

Travel for the Egg Donor—The intended parents will pay for out of pocket travel expenses for the egg donor (and sometimes her partner or spouse) to attend any fertility doctor appointments such as the screening, monitoring, and egg retrieval. The intended parents may be required to pay any verifiable lost wages for the donor if she misses work because of the procedures.

Payments to Third Parties Involved in the Egg Donation

Fertility Doctors—The intended parents are required to pay any expenses associated with the fertility clinic for the egg donor, which includes the screening of the donor, including FDA and genetic screening, consulta- tions, medications, monitoring, blood work and ultrasounds, and the egg retrieval.

ART Lawyers—If the fertility clinic or egg donation program does not provide the proper legal documentation, the intended parents pay for their attorney to draft the egg donor contract. The intended parents also pay for a separate attorney to represent the egg donor.

Background Information of Egg Donor—Usually these expenses are built into the egg agency costs, but intended parents may need to pay for inves- tigative research on an egg donor.

Egg Donor Agency—If the intended parents require an egg donor agency, they are required to pay the agency fee. Many fertility clinics provide a database of fresh and sometimes frozen eggs; there are also frozen egg banks available to intended parents. Some egg donor clinics and providers offer shared egg donor cycles where multiple intended parents share in the eggs retrieved from one donor; this may reduce the expense of the eggs for the intended parents.

Psychologist—The intended parents pay for psychological screening that is required when using an egg donor.

Frozen Egg Storage Facility—If the intended parents have frozen eggs, should they want to continue freezing the eggs for a length of time, they are required to pay storage facility fees.

Courier Fee—If the intended parents want to have a professional trans- port the frozen egg from one fertility clinic to another the fertility clinic (i.e., if the donor is in another location from where the embryo transfer occurs), they pay for the proper transportation of the frozen genetic material

Sperm Donation Costs

Sperm donation may be the least expensive piece of the ART pie when compared to egg donation or using a surrogate. Sperm can be obtained from a known donor or through the use of a frozen sperm bank where the donors are usually anony- mous. The costs associated with sperm donation can be separated into two main categories: (i) payments to the sperm donor, and (ii) payments to third parties involved in the sperm donation process.

Payments to the Sperm Donor

Sperm Donor Fee—When a man donates his sperm to a sperm bank, he receives a fee typically per donated specimen, depending on various fac- tors such as the quality of the sperm provided. This fee is typically not paid to the donor directly by the intended parents as they pay a separate fee to the sperm bank to purchase the sperm. If intended parents are ob- taining sperm from a known donor, they may negotiate their own fee for the sperm directly with the donor.

Payments to Third Parties Involved in the Sperm Donation Process

Fertility Doctors—If the intended parents are not getting sperm from a sperm bank or require the assistance of a fertility clinic to screen a sperm donor, the intended parents are required to pay any expenses associated with the fertility clinic for the sperm donor, which includes screening the sperm donor, including the Food and Drug Administration and genetic screening, medications (if any), and consultations.

ART Lawyers—Typically a sperm bank provides the documentation for the sperm donor to sign off on and to relinquish any paternal rights to the donated sperm. However, as seen when using a known sperm donor (like family or a friend), it is imperative that the parties use an ART lawyer to draft the appropriate sperm donation contract. The intended parents also pay for a separate attorney to represent the sperm donor.

Background Information of Sperm Donor—Usually these expenses are built into the sperm bank’s costs, but intended parents may need to pay for investigative research on a sperm donor. Some sperm banks charge extra for an additional child or for adult photographs of the donor, other images or videos of the donor, and handwriting analyses of the donors.

Sperm Bank—If the intended parents require a sperm bank, they are required to pay the clinic’s fee to purchase the sperm. The cost for the sperm depends on factors such as whether the sperm is washed or not, if it is from an anonymous source, and if specifics regarding the background of the donor—such as whether he has a graduate degree, etc.—are requested.

Psychologist—The intended parents are strongly recommended to partici- pate in psychological counseling, at their expense, when considering the use of donated sperm.

Frozen Sperm Storage Facility—If the intended parents have frozen sperm and want to continue freezing the sperm for a length of time, they can ex- pect to pay storage facility fees.

Courier Fee—If the intended parents want to have a professional trans- port the frozen sperm to the fertility clinic or home, they are responsible for paying for the proper transportation of the frozen genetic material.

Estimated Expenses for Surrogacy and Egg Donation

As you see, there are variables that come into play when trying to determine the costs of ART procedures. This only gets more complicated as you add on addi- tional services such as surrogacy and egg donation.

Men Having Babies, Inc. (MHB) is a nonprofit organization that provides invaluable services such as educational and practical information to assist gay prospective parents achieve biological parent- ing, provide consumer feedback on reviews of fertility clinics, and promote the af- fordability of surrogacy-related services for gay men through financial assistance and the encouragement of transparency and customer feedback.

In order to help all people going through surrogacy and egg donation, MHB developed a Surrogacy Budgeting System. The goal was to decipher and harmonize the divergent cost structures involved in the entire surrogacy and egg donation procedure and develop a generic budget, as of 2015, with expected cost ranges per line item involved in the proces

The charts formulated by MHB pools data gathered from fourteen fertility clinics and sixteen surrogacy and egg donation agencies across the country. MHB continues to update these tables and asks that clinics and agencies provide current pricing sheets at least once a year.

While MHB does not publicize each provider’s cost sheet, the broad spectrum of data is used to create a generic budget. The comprehensive listing of all cost components in standardized categories is the first of its kind and provides pro- spective parents a definitive checklist of all possible costs. While many providers do not offer clear or full estimates to all possible cost components, MHB filled the omissions with data from independent experts and from their experience with the couples that have gone through the organization’s assistance program.

The budget is presented in two tables: one has all the nonmedical costs as- sociated with the surrogate: agency and legal costs, compensation, and expenses. The other table has the egg donation and IVF costs: donor matching, legal fees, compensation, and expenses; and medical screening of all parties, IVF treatment, lab fees, medications, monitoring, and other related costs.

Each table includes three columns: minimum estimated expenses, maximum estimated expenses, and the likely cost for each line item on the budget. Note that providers vary considerably in how they define, organize, and price various services. For instance, while most surrogacy agencies quote an “agency/retainer fee,” they vary in how inclusive that fee is. For some, it would include all the re- cruiting, screening, legal, and support functions associated with surrogacy. Others will quote separate fees for some of the items, even if they are not optional or provided by third parties.

In the table, Men Having Babies has listed all of the potential components of each general function or service and provided the minimum and maximum costs Men Having Babies has seen associated with these components when they are quoted separately. However in the “Likely cost” column Men Having Babies has only listed the costs associated with the components that are likely to be item- ized, and assumed all the other components should be included in the general agency fee.

The tables include estimated totals per stage or general grouping, such as medical screening or IVF treatment, which are shaded in gray. Each page is also totaled, and these numbers are highlighted in yellow. When considering these numbers, please keep in mind the following notes:

The totals of each category represent averages of the respective totals across the various providers, but are not always the arithmetic sum of all the itemized components (since not all of these items are necessary or quoted separately).

To arrive at cost estimates of the entire surrogacy and egg donation, you will need to add up the total of both tables. Currently that would amount to a minimum of $83,000, a likely cost of $122,000, and a typical $191,000 for the high end of the spectrum.

These totals include only a basic journey—namely they do not include costs associated with having twins, optional medical procedures (such as preimplantation genetic screening), or when more than one IVF cycle is needed (which is the case in about 30 percent of the times). The tables can allow you to calculated likely costs for these scenarios and others, and factor them in based on your circumstances and level of risk aversion.

While these tables were created by compiling the most up-to-date data from clinics and agencies around the United States, they are only offered as a budgeting aid. Anyone embarking upon a surrogacy and egg donation journey needs to formulate their own budget based on the specific services required and the actual providers being utilized.

In order to better understand the MHB tables, some abbreviations are used as follows:

 GC—gestational surrogate

 IP—intended parent

ED—egg donor (or sometimes: egg donation)

ACA—Affordable Care Act health insurance policy

LL—Lloyd’s of London health insurance policy

MMPI—Minnesota Multiphasic Personality Inventory test

 

California: A Golden State for Surrogacy By Stephanie Caballero, Esq.

California Highway and Mountains Scene
Stephanie Caballero, Esq.

California: A Golden State for Surrogacy

“What is the quality of your intent?” – Thurgood Marshall

            Why, you ask? Because, the intent to parent is key to the determination of your parental rights.

Not only is intent key, but also California now has a surrogacy statute and that means we have a very clear framework on surrogacy, regardless of martial status -- or lack thereof – or sexual orientation, parentage can be established.  

As with all things legal, let’s start with the law.

In the beginning – case law

Johnson v. Calvert, 5 Cal.4th 84, 19 Cal.Rptr. 494 (1993)

When we talk about case law in California, this is “the” case. It was the first case to go before the State Supreme Court and involved a married couple – the Calverts – who needed a surrogate -- Ms. Johnson -- as Mrs. Calvert had undergone a hysterectomy.

During the pregnancy, Johnson demanded immediate payment and threatened to keep the child after birth. The Calvert’s immediately filed action against Johnson to have the courts determine parental rights in this matter. Johnson filed a counter suit and the two matters were combined into one.

The court ruled that parties who enter into a gestational surrogacy agreement intending to care for the child resulting from said agreement will be the child's legal parents and the court specifically upheld a gestational surrogacy agreement and held that the intent to parent controls and that the transfer of embryos was not a “donation” to the gestational carrier as evidenced in their contract, but an agreement for the surrogate to carry the child for the Calvert’s.

In Re Marriage of Buzzanca (Cal.App. 4 Dist. 1998) 72 Cal.Rptr.2d 280

The next case was a doozy! The Buzzancas wanted to have a child, but were unable to conceive and they needed the help of a sperm donor, an egg donor and a surrogate to finally be expecting a child. In March 1995, one month before the surrogate was due, John Buzzanca filed for divorce stating that there were no children born of the marriage. 

The case ended up in court where in March 1997, it was ruled that Luanne Buzzanca was not the legal mother of her baby, nor was John the legal father and did not owe any child support money. This ruling was based on the fact that Baby Jaycee had no genetic relationship to John and Luanne.  Baby Jaycee was a legal orphan.  

The Appellate Court eventually found that both John Buzzanca and Luanne Buzzanca were the lawful parents of Baby Jaycee based on the grounds that they consented to the medical procedures necessary in the creation of Baby Jaycee.  They held that both of the Intended Parents involved in a contractual surrogacy arrangement shall be deemed the “Natural Parents” despite a lack of genetic connection to the child.

What this means for my clients is you can be single and have no genetic connection to the child and in California; you will be the only parent of that child, so long as you follow the law. Next up, California’s surrogacy statute explained.

Out of chaos comes law

 

U.S. v. Erickson 11CR 3372- AJB

 

On October 14, 2011, Theresa Erickson, a prominent San Diego attorney who specialized in reproductive law plead guilty to “Conspiracy to Commit Wire Fraud”. In her guilty plea, Erickson admitted that she and her conspirators used gestational carriers to create an inventory of unborn babies that they would sell for over $100,000 each.  She was not alone; Hilary Neiman, an attorney from Maryland plead guilty to the same counts as Erickson in July 2011 and Carla Chambers, a former surrogate from New Zealand, plead guilty in August 2011 to the count of “Conspiracy to Engage in Monetary Transactions in Property Derived from Specified Unlawful Activity”.

 

The actions of these three women changed how surrogacy is practiced in California, but this change was beneficial, as we now have a clear-cut statute and if you follow the statute, you are presumed to be the parents. That’s a good thing as a parent – and a surrogate – when you want to have your baby born by a gestational carrier in California.

 

CA FAMILY CODE §7960-§7962

California’s surrogacy statute went into effect January 1, 2013, and requires that a surrogate and her intended parents or parent, be represented by their own attorney and that the agreement be signed and notarized by both sides before the surrogate begins her injectable medication.

Prior to the statute, we filed pre-birth orders because there was nothing under the law that said that we couldn’t. Now, with the surrogacy statute, language has been included regarding filing the pre-birth judgment and how that has to be handled and where.

The law regarding surrogacy is very much settled in California and supports this kind of arrangement. And unlike some states, California does not require that the contract be certified by the court nor does the statute require a psychological screening for the surrogate and the parents, but most doctor’s and attorneys (myself included) require that the surrogate, at a minimum undergo a psychological screening.

Now How to Afford it?

It’s expensive. There is no getting around that fact. If you are fortunate to have family who can loan you the money, that’s great, and many of my clients have that option. There are also other organizations and lending institutions that offer loans at low interest rates. IVF scholarships such as the ones offered by INCIID and The Cade Foundation also help intended parents with the costs of infertility, treatments, and surrogacy.  A list of infertility scholarships and grants can be found at www.resolve.org

 

If you have a family member or friend who offers to be your surrogate and passes the medical and psychological screening, that is also another option and I have also had many clients who have had children this way.

I also have clients who need an egg donor and a surrogate but cannot afford both so they work what what’s called a traditional surrogate: a woman who donates her eggs and also carries the baby.  

In re: Marriage of Moschetta (25 Cal App. 4th 122)2 was such a case. A judgment was entered in December 1992 stating that Robert Moschetta and Elvira Jordan (the surrogate) were the legal parents of Baby Marissa. Robert appealed this judgment.  I inform my clients of this ruling, but I also tell them that the Moschetta’s, the Intended Parents, were divorcing, and the court took that into consideration when making their ruling.

I also tell my clients that I have not had a traditional surrogate fight for custody or visitation (or both) and that while that is a risk that they take, my cases have all ended well.

Infertility is not easy. Emotionally. Physically. Financially.  And while a lot of my clients need a surrogate and an egg donor because of their gender, a lot have gone through the very real and very painful ups and downs of fertility treatments.

I’ve been there. I know what it’s like. And, if you are struggling, if you are in that “hell” I’m here to tell you that if you really, really want to be a parent, you can be. It may not be the way you thought it would be, but you can absolutely be a mommy – or a daddy.


Stephanie Caballero, Esq.Stephanie M. Caballero, Esq. has represented nearly 2,000 clients, including Intended Parents, Surrogates and Donors from all over the world through Surrogacy, Egg Donation, Sperm Donation, and Embryo Donation. Stephanie specializes exclusively in Family Formation and Reproductive Law and has appeared on various programs and print media including The Bakersfield Californian, The Examiner, the Creating a Family radio program, NPR, Fox News, The Los Angeles Times, The Union Tribune and the L.A. Daily Journal. Stephanie had her own journey through infertility, after eight years of treatments including having endured more than 10 artificial insemination procedures, three surgeries, three miscarriages, and 13 IVF procedures she finally realized her dream of having children when a surrogate carried her twins. Stephanie also had to adopt her twins because the state where they were born did not recognize surrogacy. Stephanie is also a member of the American Fertility Association, American Bar Association, San Diego Bar Association, and American Society of Reproductive Medicine, serving on the board of its Legal Professional Group.

Visit her Website

Finding Your Assisted Reproduction Attorney by Diane Michelsen, J.D., M.S.W.

Once you have decided to make use of assisted reproductive technology to create your family, we suggest that you contact an assisted reproduction attorney. Assisted reproduction is still a new field and laws concerning assisted reproduction are constantly evolving. Whether utilizing a donor for genetic material or a surrogate (gestational or traditional), yesterday’s information may well be out of date. Please don’t rely on legal information provided by the internet or by friends who are well meaning but not well versed. The ramifications are too significant to not have accurate information. In this field, more than most others, you can preclude very serious problems by utilizing the services of a knowledgeable attorney.

 

Additionally, like adoption, laws and practices vary drastically state by state. Your attorney will be able to give you a comprehensive overview of what is allowable in your state, as well as what conflicts may need to be resolved. If commercial gestational surrogacy, for example, is not allowed in your state, your attorney may recommend that you use a program in a state where it is recognized.

 

The American Academy of Adoption Attorneys, http://www.AdoptionAttorneys.org , unlike the other paid listings, has qualified its members on the basis of ethics and expertise. At press time, it is in the process of developing an easily accessed listing of assisted reproduction attorneys.

Do feel free to contact more than one attorney to inquire as to services, expertise, philosophy, and costs. You need not feel limited to attorneys in your own immediate area, since the majority of work is done in writing and by telephone. The following questions may be helpful in obtaining useful information:

 

1. Philosophy: What is the attorney's philosophy about assisted reproduction? Is the attorney comfortable with the concept of assisted

reproduction? What are the attorney's feelings about ovum donation and/or surrogacy? Does he or she have strong beliefs about anonymity or disclosure of identities? How will this play out in the future? What about future access for sharing of medical information or for the child? Do the attorney's attitudes match yours, and/or is the attorney willing to adjust to your desires and needs? If the attorney seems uncomfortable in this area, do seek a different legal counselor.

 

2. Expertise: What is the attorney's familiarity with assisted reproduction, both legal and otherwise? Is the attorney experienced, knowledgeable and competent? How many assisted reproduction matters does the attorney work with each year? How long has the attorney been in this field? If he or she handles litigation, ask about their track record. You can also look up the attorney on the internet to get more information. (just type them in as the inquiry in Google.) Do ask for references, if desired.

 

3. Billing: How does the attorney bill, and what is the average cost for the services you wish. Some attorneys bill on an hourly basis, while others charge flat fees for their services. Remember not to just compare hourly rates as price alone should not guide your decision. An attorney who is an expert in his field can often work far more efficiently than someone who is unfamiliar with the area. The specialist knows the key issues as well as the details to preclude problems later!

 

4. Accessibility: Does the attorney return phone calls, and if so, when? Does the office keep you up-to-date and involved in your case? Are copies of relevant correspondence or documents regularly sent to you? If contracts are being drafted, find what the anticipated turn around time will be. When your attorney is away from the office, is another knowledgeable attorney on hand to answer your specific questions and concerns?

 

5. Personalities: Are the attorneys and the support staff pleasant people who help you to feel at ease? Your attorney-client relationship may well extend over several months' time, both before and during the pregnancy. It should be clear that the attorney is interested in providing you with competent, thoughtful and caring service, and that he or she is committed to working diligently on your behalf.

 

 

Diane Michelsen, J.D., M.S.W. is an INCIID professional member and California based Adoption and Surrogacy Attorney who has been in practice since 1980.

Phone: (925) 945-1880

Email: diane@lodm.com

Website: http://www.familyformation.com

INCIID Member Page