The law of babymaking, 'assisted reproduction' work is on the rise
By Dick Dahl, Staff Writer, lawyersusaonline.com ,
April 21, 2008
San Diego attorney Thomas M. Pinkerton and his wife Darlene turned to in vitro fertilization in order to have a child. The procedure was a success – Darlene produced a viable embryo and Thomas' sister, Judy, agreed to act as a surrogate. She gave birth to Kati in March 1990.
But when the Pinkertons contacted the state Health Department to get a birth certificate, they were told that Judy – the girl's aunt – had to be listed as her mother and that if they wanted to become the girl's legal parents, they'd have to do it via adoption.
Pinkerton, then a real estate lawyer, decided to fight.
He went to court and won a judgment ordering the Health Department to list Darlene as Kati's mother on the birth certificate. The judgment was the first of its kind in California and propelled Pinkerton into a new line of work: fertility law.
At the time, only one other California lawyer was practicing assisted reproduction law: Bill Handel, better known in California as the host of a popular Los Angeles radio talk show.
But today Pinkerton counts himself among a growing number of practitioners focusing their work on the legal issues involving couples who can't conceive and the people and technologies they use to assist them in becoming parents.
Many family law practitioners have devoted portions of their practice to assisted reproduction; others have devoted their entire practices to it. Pinkerton estimates that two to three dozen lawyers besides himself are practicing assisted reproduction law full-time in California.
A multi-billion-dollar industry
It's an area that goes by a variety of names – fertility law, assisted reproduction law, surrogacy law, family formation law – and it has evolved over the last 20 years in response to medical technology and social change.
Today, assisted reproduction is a multi-billion-dollar industry.
Lawyers who practice in this area say assisted-reproduction arrangements can involve a variety of players. They range from a single woman choosing to become pregnant from donated sperm to couples who rely on donations of both sperm and eggs as well as a gestational surrogate.
According to San Marcos, Calif. surrogacy lawyer Stephanie M. Caballero, the relationships can become more complex still. She is currently representing a gay male couple who are paying for two surrogates because they want two children.
She said that in spite of the highly emotional issues involved, the legal work is essentially transactional. Typically, clients seeking outside help to have children have made their own arrangements with surrogacy agencies, which then turn to lawyers to draw up the contract.
According to Caballero, the most important element of any contract involving assisted reproduction is clarification of intent.
"This is a new and unsettled area of law," and as a result, courts often render opinions based on the intent of the parties involved, she said. "So it's very important prior to the embryo transfer or the egg retrieval or the sperm retrieval that a legal contract is drawn up and the intent of the parties is defined."
For example, she said, a contract should stipulate that a surrogate's intent is that the recipient parents – and not herself – will have custody of the child.
Still, disputes do arise. And over recent years, their resulting court opinions have begun to shape the law.
The first high-profile case involving assisted reproduction was a New Jersey case, In re Baby M, 537 A.2d 1227, in which a man and woman drew up a "surrogate parenting agreement" stating that the woman would be impregnated by the man's sperm and relinquish the child to him upon birth. But shortly after the child was born, the mother wanted her back. The legal dispute ended when the New Jersey Supreme Court overturned a trial court and restored the birth mother's parental rights.
"It started on the East Coast with very hard, difficult cases like Baby M," said Pinkerton. "And out of that grew surrogate-unfriendly states. In California, on the other hand, we started out with a fairly easy case and then moved in the opposite direction."
By all accounts, the case law that has developed in California is the most far-reaching in terms of protecting couples who seek to have children via assisted means. In the 1990s, a trio of cases established the legal groundwork for current surrogacy law in that state and influenced courts elsewhere.
The first "easy case" was Johnson v. Calvert, 851 P.2d 776 (1993). A couple used in vitro conception and arranged with a surrogate to give birth. Both the biological mother and the gestational mothers claimed maternity. The California Supreme Court resolved the dispute by proclaiming that the one who could demonstrate that she intended to raise the child would prevail. This established the "intending to parent" concept, which has been applied in California ever since.
The following year, a California appellate court narrowed the concept in In re Marriage of Moschetta 26 Cal. App. 4th 1218, in which an infertile woman and her husband arranged for a surrogate to be inseminated with the husband's sperm.
When the couple broke up, the surrogate claimed maternity, and the court concluded that because she was both the genetic and gestational mother, she had the stronger claim. (As the biological father, the husband later won custody of the child.)
The third case, In re Marriage of Buzzanca 61 Cal. App.4th 1410 (1998), involved a husband and wife who were both infertile, a sperm donor, an egg donor and a surrogate.
The couple broke up during the pregnancy and then made opposing claims about rights to the child. The woman claimed that it was a child of the marriage so should be hers, while the man said that the child was not genetically his and so he should bear no legal responsibility for it.
The appellate court concluded that when a married couple unable to reproduce on their own uses medical technology to create a child, they will be treated as if they were the biological parents. According to Pinkerton, this was the first major case to provide legal underpinnings to the use of artificial insemination in assisted reproduction cases.
In other states, lawyers say, assisted reproduction law is a patchwork.
According to the Human Rights Campaign, a gay civil-rights organization, six states expressly allow couples to enter surrogacy contracts: Arkansas, California, Illinois, Massachusetts, New Jersey and Washington. HRC reports surrogacy contracts are prohibited in all or some instances in 11 states – Florida, Indiana, Louisiana, Michigan, Nebraska, Nevada, New York, North Dakota, Texas, Utah and Virginia – as well as the District of Columbia.
In the remaining states, the picture is unclear because of contradictory or confusing laws and court cases.
Clients must be prepared to pay lavishly for a child produced by assisted reproduction. Melissa B. Brisman, a solo practitioner in Park Ridge, N.J., estimates that the cost of in vitro fertilization involving a surrogate ranges from $40,000 to $60,000 – excluding medical costs. The surrogate typically receives $18,000 to $22,000 and the total attorney fees range from $12,000 to $14,000, she said.
But Caballero points out that for many couples, no price is too high. In her own case, Caballero said she and her husband spent $200,000 over the course of several years before they became genetic and legal parents of twins who were carried by Cabellero's cousin as a surrogate.
Because the surrogate was in a different state, the Caballeros had to legally adopt their children. She said the experience is what propelled her to enter law school in her late 30s, intent on going into assisted reproduction law.
Stories of personal experience are common among lawyers practicing in this area.
In New Jersey, Brisman has a similar story to tell. When she and her husband were living in Boston in the 1990s, they turned to in vitro and a surrogate in Maine to produce twin boys.
Brisman has been practicing assisted reproduction law in New Jersey for the last nine years. Despite the fact that New Jersey prohibits traditional surrogacies (in which the surrogate is also the biological mother) and allows only uncompensated gestational surrogacy arrangements, Brisman said she thrives because her practice is national.
Theresa M. Erickson, a solo surrogacy lawyer in Poway, Calif., came to the practice from a different direction: During law school, she was an egg donor who assisted several families in having children.
She decided to continue doing that with her work.
"Everyone has this innate desire to have a child and we help them get there," said Erickson, who created her firm in 1998.
Lawyers practicing in this area say that it's constantly evolving.
"If you have asked me then, I'd have said the majority of my clients were married couples," said Brisman. "But there are more single people and gay couples now."
"Part of the reason this is a growing field is that women have the option of waiting to get their careers going," Pinkerton said. "And they either don't think ahead or they just have [other] priorities."
Caballero agreed, disclosing that she has a lot of clients in their 40s – usually professional women who are either single or married – and even one in her 50s.
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