The news concerning third party reproductive arrangements has been alarming these past few months. Dozens of Israeli same sex couples were stuck in Thailand with their babies born through gestational surrogacy, due to a Thai law holding that the birth mother (surrogate) is the legal parent of the child. In January, the Spanish Supreme Court ruled against a gay couple seeking to complete a Civil Registration (Spanish Citizenship) of twin babies born through gestational surrogacy in California. This past December, India passed a law, essentially criminalizing homosexuality. A few weeks ago, Kansas introduced a Senate bill designed to make it illegal to enter into surrogacy contracts in Kansas, under threat of a $10,000 fine and one-year jail sentence.
Fortunately, the actual effect of these reported legal issues have not been as bleak as anticipated. The approximately 65 babies stuck in Thailand are being issued Israeli passports through the consulate and are either heading home or are already in Israel. Second parent adoptions should still be available to Spanish couples seeking to work with U.S. gestational surrogates, as long as one of the intended parents has a genetic relationship to the child. The Kansas anti-surrogacy bill was withdrawn by its sponsor. In addition, last month, New York legislators proposed a law that would make compensated surrogacy legal in New York State. Moreover, Israel proposed a government sponsored bill which would allow same-sex couples the right to use a surrogate in Israel (although the law would regulate surrogacy abroad for the first time).
What does all of this mean for you and your third party reproductive arrangement? How can you adequately protect yourself and your family during this time of ever changing laws and attitudes concerning family building? Do you need an attorney? If so, what type of attorney… reproductive attorney, immigration attorney, tax attorney, estate planner? How can you be certain your name will be on your child’s birth certificate? Can you obtain a passport for your child? Put simply, these are issues that may arise not in the context of a disputed third party reproductive arrangement, but rather, in an arrangement where all participants have the common goal of helping you attain your dream of having a child.
Because third party reproduction is an emerging, unsettled area of the law, there are a lot of ‘what ifs’ and ‘unknowns’ involved in many assisted reproductive arrangements. Nonetheless, with the help of experts in this field, you should, at a minimum, be able to ascertain what the ‘what ifs’ and ‘unknowns’ are, so you can make an informed decision about proceeding with your surrogate or gamete provider. Although legal changes in the midst of your third party arrangement could present unforeseen and unpreventable problems, knowledgeable and experienced professionals should be able to help you navigate unanticipated bumps along the road.
So…what type of lawyer should you retain? Any participant to a third party reproductive arrangement should work with an attorney who specializes in third party reproduction. Your lawyer will help you consider and document what you would like to happen before, during, and after the gamete donation or surrogacy arrangement. Because there are so many issues to consider in any third party reproductive arrangement, the importance of obtaining legal representation with expertise in this field cannot be underestimated.
However, your reproductive attorney should also recognize when he/she may need co-counsel or a referral to avoid later pitfalls such as birth certificate or passport issues. One of the first questions you should be asking of your attorney is if they know about the laws of the state or country where your third party reproductive arrangement will occur. If you are travelling to the U.S. to pursue surrogacy, make sure you are in touch with an immigration attorney and reproductive attorney in your home country to ensure that the legal process in the U.S. will satisfy any requirements imposed by your home country. It may be that your attorney in the U.S. needs to take different or additional legal steps in your surrogacy arrangement in order to allow for a smooth transition to your home country. For example, although in Illinois, court involvement is generally not required for gestational surrogacy arrangements, depending on your country of origin, you may need to participate in a court proceeding in Illinois if a court order is required for your return home. If your surrogate lives outside the United States make sure you are in contact with an attorney in the country where the surrogate resides. You should also be in contact with an immigration attorney, to ensure your child will be able to obtain U.S. citizenship and a passport. If your surrogate resides in the U.S., make sure you have consulted with an attorney in the state where your surrogate lives AND intends to deliver. Although your contract may provide that she will travel to a specific state to deliver, you should always have a ‘back-up’ plan in the event an emergency delivery requires her to deliver in her home state.
Most third party arrangement also involve estate planning and tax consequences. For example, if there are no laws on egg donation in the applicable jurisdiction, what is the risk that a child born via egg donation can claim inheritance rights from the egg donor’s estate? How can you mitigate this risk? Is a gestational surrogate required to pay taxes on money she receives from Intended Parents as part of her surrogacy arrangement? The U.S. Tax Court is currently considering whether money paid to an egg donor is taxable income – so we may soon have guidance with respect to the taxability of such income.
In short, although you may have no control over the ever changing and evolving laws in third party reproduction, you can control the amount of knowledge you have, and hence the ability to make an informed decision.
Heather Ross, Esq. is an attorney practicing in Illinois and Chair of The American Fertility Association’s Legal Advisory Council