Surrogacy 101

Update on the Washington State Uniform Parentage Bill on Compensated Surrogacy Arrangements- SB6037

SB6037 has now been heard in the WA House and will be voted on next week with no real wrinkles that I am aware of. With the testimony of Jennifer Tammen (Former IP), Jon Tammen (17 year old son born via surrogacy in CA) and Melissa Flaherty (The wonderful CA Gestational Carrier for the Tammen's who has now testified twice this year in favor of our surrogacy bill), are among the many who have offered both the senate and the house their support of SB6037 and have encouraged the members to think of those suffering from infertility here in WA state and how much of an emotional and financial burden it is to be so far apart during the surrogacy process. 

Jon Tammen and Melissa Flaherty in Olympia 2018

Below is the Brief Summary of Engrossed Substitute Bill. I will be sure to post more about Bill SB6037 as it goes for a vote next week!

Surrogacy Agreements.
New provisions are established governing both gestational surrogacy agreements and genetic
surrogacy agreements. A gestational surrogate is a woman who agrees to become pregnant
through assisted reproduction using gametes that are not her own, while a genetic surrogate is a
woman who agrees to become pregnant through assisted reproduction using her own gamete.

In order to act as a surrogate, a woman must:
*be at least 21 years of age;
*have previously given birth to at least one child but not enter into more than two
surrogacy agreements that result in the birth of a child;
*complete a medical evaluation and mental health consultation; and
*have independent legal representation of her choice throughout the surrogacy
arrangement.

Each intended parent under a surrogacy agreement must be at least 21 years of age, complete a
medical evaluation and mental health consultation, and have independent legal representation
throughout the surrogacy arrangement.

House Bill Analysis - 5 - ESSB 6037
A surrogacy agreement must comply with the following requirements:
*at least one party must be a resident of the state, or at least one medical evaluation or
procedure or mental health consultation must occur in the state;
*the agreement must be in a record, signed by each party, and attested by a notarial officer
or witnessed;
*counsel for the woman acting as a surrogate and the intended parent or parents must be
identified in the surrogacy agreement;
*the intended parents must pay for legal representation for the woman acting as a
surrogate; and
*the agreement must be executed before the occurrence of a medical procedure related to
the agreement.

 

A surrogacy agreement must also comply with other requirements, including that: each intended
parent immediately upon birth will be the parents of the child and assume financial responsibility
for the child, regardless of the number of children born or the gender or mental or physical
condition of each child; and the woman acting as a surrogate must be permitted to make all
health and welfare decisions regarding herself and the pregnancy. A surrogacy agreement may
provide for payment of consideration, reasonable expenses, and reimbursement of expenses if the
agreement is terminated.

Genetic surrogacy agreements must be validated by the superior court in a proceeding
commenced before the assisted reproduction. A party may terminate a surrogacy agreement at
any time before a gamete or embryo transfer. Under a genetic surrogacy agreement, the woman
acting as a surrogate may withdraw consent to the agreement at any time before 48 hours after
the birth of the child by providing each intended parent with notice. A woman acting as a
surrogate is not liable for a penalty or liquidated damages for terminating the agreement except
in a case involving fraud.

Upon birth of a child under a gestational surrogacy agreement, each intended parent is by
operation of law a parent of the child and neither the woman acting as a surrogate nor her spouse
or former spouse is a parent of the child. Each intended parent under a court-validated genetic
surrogacy agreement is a parent of a child conceived under the agreement.

Where an intended parent dies before the gamete or embryo transfer, the intended parent is not a
parent of the child unless the agreement provides otherwise and the transfer occurs not later than
36 months after the death of the intended parent or the birth occurs not later than 45 months after
the death of the intended parent.

A party may institute a proceeding for an order or judgment regarding parentage under a
surrogacy agreement. Provisions are established governing the effect and enforceability of
surrogacy agreements, including the effect of nonvalidated genetic surrogacy agreements and
remedies available for breach of an agreement. Unless otherwise ordered by a court, a petition
and other documents related to a surrogacy agreement are not open to inspection except by the
parties to the proceeding, a child conceived by assisted reproduction under the agreement, their
attorneys, and the State Registrar for Vital Statistics.

Information About Donor. More specific standards are established regarding the requirement for
a gamete bank or fertility clinic to collect and maintain records of a donor's identifying
House Bill Analysis - 6 - ESSB 6037

Information and medical history. A gamete bank or fertility clinic must obtain a declaration from
the donor regarding whether or not the donor agrees to disclose the donor's identity to a child
conceived with the donor's gametes once the child turns 18 years of age. Upon request, a gamete
bank or fertility clinic must make a good faith effort to provide a child conceived by assisted
reproduction access to nonidentifying medical history of the donor and identifying information
of the donor unless the donor signed a declaration stating that the donor does not agree to
disclosure of identifying information.

Other Provisions. The act applies to a pending proceeding to adjudicate parentage commenced
before the effective date of the act for an issue on which a judgment has not been entered.
Regulations are established governing a surrogacy broker that arranges or facilitates surrogacy
transactions if: the surrogacy broker does business in Washington; a surrogate who is a party to a
surrogacy agreement resides in Washington during the term of the agreement; or any medical
procedures under the agreement are performed in Washington.

Appropriation: None.
Fiscal Note: Requested on February 14, 2018.
Effective Date: The bill takes effect on January 1, 2019. 

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WA State and the Uniform Parentage Act Bill 6037 Will Change the Lives of Many!

I traveled to Olympia yesterday to support the new SB 6037 Uniform Parentage Action Bill.  I was told that within the next week or so we will know if it moves on. There are several parts to this bill but the biggest hitch is the surrogacy portion. Most of us feel that this will be the best law regarding surrogacy in the USA. I invite you all to read it yourself and comment here, PM me on Facebook or email me as I would love to hear your thoughts. NEW SECTION. Sec. 702. ELIGIBILITY TO ENTER GESTATIONAL OR GENETIC SURROGACY AGREEMENT. http://lawfilesext.leg.wa.gov/.../Senate%20Bills/6037.pdf 
I hope to be testifying when the bill reaches the House. I will keep you all posted. This will mean some big changes for WA state! The entire state would be open to new possibilities in the realm of Third Party Family Building!

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Insurance Issues to Address Prior to A Surrogacy Agreement

Prospective Intended Parents and Carriers need to be aware that they are embarking upon an investment of time, money and risk when they enter into a surrogacy arrangement together.  If you are a Carrier, you are taking time out of you and your family's life and investing that time toward your intended parent's dream of having a child.  If you are an Intended Parent, you are asking someone to assume a certain amount of risk to help achieve your dream of having a child.  Clearly, there are no guarantees offered by the Infertility Clinics.  That being the case, prior to entering into this arrangement you should be aware that some risks can be minimized.  Insurance or insurances are the best ways to offset some of the risk inherent to your relationship together.

The time to check these issues is now, not after you enter the Surrogacy contract. The reimbursements that will be paid to a carrier will depend upon whether or not you have insurance coverage.  Your contract will need to address this issue, and make an appropriate accommodation.Pregnancy and birth are expensive.  Health insurance can go a long way toward minimizing the financial risk.  Depending on your state of residence, the costs will vary according to age, health and deductibles. Get the lowest deductible you can afford.

Insurance companies are in the business of making money and will go out of their way to not pay benefits.  As an educated consumer, you must be sure that you have obstetrics coverage.  Next be sure that you have been covered long enough that your pregnancy will not be deemed a preexisting condition for which benefits can be declined.  Finally, check the "exclusions" section of the policy to be sure that a surrogacy arrangement does not take you out of coverage.  If you are married and the health insurance is through your spouse's employer, check that policy.  Occasionally when obstetrics is not part of the normal benefit package you can add it for an additional fee.

Another consideration of risk is your carrier's life.  Why?  Because there is a risk of death with any pregnancy and there needs to be a fund of money available to her family should she not be there for them.  We recommend a minimum of $250,000 of life insurance for a carrier. This amount can be adjusted according to the carrier's profession, number of children she has and most importantly, what makes her family comfortable with the extra risk she is undertaking.  From a legal perspective, having life insurance in effect through pregnancy helps provide financial insulation from a lawsuit should there be a birth related death.

A final consideration is insuring your carrier's ability to work.   When a carrier is a stay-at-home parent, her duties have a certain value to her family.  When a carrier has a job outside of the home, she  helps provide another income stream and raises her family's lifestyle. 

If a carrier becomes disabled due to surrogacy, the losses need to be replaced.  One way to view the value of the loss is to determine the out of pocket cost to replace her contribution to the household.  What is the cost of hiring a housekeeper, a cook or additional daycare while the carrier is on forced bedrest?  Most Surrogacy Contracts address this issue with an out of pocket payment.  Another alternative may be a short or long term disability insurance policy.  Both may be considered to provide seamless coverage till the end of the contract, but certainly a long term disability would have the worst effect upon the carrier's financial well being.

Of course, by now you are wondering how much does this all cost? Costs will vary according to the carrier's age, health, height/weight ratio and lifestyle (smoker/non smoker) as well as the value placed upon the risk.  The best time to get an idea of the cost and of any problems with underwriting is during the matching process so that the cost can be allocated within the Surrogacy Agreement.

Additional questions? Check out LaMothe Surrogacy Consulting http://www.lamothesurrogacyconsulting.com Save $150.00 with our fall consulting special!

 

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Want to Have a Baby One Day? Be Careful Who You Vote for This Election By Guest Blogger Stephanie Levich

An astounding 1 in 8 American couples will experience problems having children during their lifetimes, making infertility one of America’s greatest unsung medical epidemics. Unfortunately, the vast array of drugs and procedures available to help couples with fertility issues, including inseminations and homeopathic remedies, do not always work.

There is, however, a treatment that does work: in vitro fertilization (IVF). During my close to 15 years as a fertility consultant and through my own personal experience with IVF, I have discovered IVF to be a veritable miracle technique, enabling thousands of people, myself included, to overcome the heart wrenching diagnosis of infertility.

Imagine for a moment eagerly trying to start your family only to learn that you are a 1 in 8 and the only way for you to have a biological child of your own is through IVF. I was faced with this exact reality. Fortunately, we live in a time where options like IVF are available. But here's the scary reality: one of our presidential candidates is lobbying to end the existence of IVF. As someone who, not only helps clients have children through IVF, but is also a parent because of IVF, I take this very personally.

Ted Cruz released a chilling video last week which zealously showed his support for fetal "personhood" where zygotes would be considered legal "persons" and would therefore be granted full protection by the U.S. Constitution. “I enthusiastically support that resolution and, as president of the United States" he asserts, "I pledge to you that I will do everything within my power to end the scourge of abortion once and for all, that I will use the full constitutional power and the bully pulpit of the presidency to promote a culture of life, that I will sign any legislation put on my desk to defend the least of these, including legislation that defends the rights of all persons, without exception other than the life of the mother from conception to natural death."

Cruz, like others in his party, grounds his opinion in a conservative, theological belief that human life begins at conception. But the implications of these beliefs for those needing to undergo the IVF process to have a family are alarming. In an IVF cycle, numerous eggs are retrieved with the hope that a good number of healthy embryos will be created. Generally, any embryos that are not transferred are frozen. By granting full constitutional rights to embryos, fertility doctors would not be permitted to retrieve more than one or two eggs per IVF cycle. This would not only decrease success rates significantly, but would also make an already expensive process more cost prohibitive to patients because they would be required to undergo multiple retrieval procedures. Patients would also be subjected to increased medical risks for each egg retrieval they would be required to undergo.

Thankfully, the picture is much brighter on the democratic side. Hillary Clinton embraces the widespread belief shared by most fertility professionals, that human life begins at fetal viability or birth. In 2015, while responding to the nationwide firestorm surrounding abortion rights and employer-financed contraception, Clinton remarked that, “deep-seated cultural codes, religious beliefs and structural biases have to be changed” so as to grant women proper access to “reproductive health care.”

Unlike other national politicians, Clinton seems to view access to family planning methods within the larger context of women’s rights. In an extensive interview she gave last year to The Des Moines Register, Clinton noted that, “The Republicans have made it clear in recent years that they are not only opposed to abortion, which they have been for quite some time, they are increasingly opposed to family planning and contraception. This is a direct assault on a woman’s right to choose health care.”

For Clinton, access to family planning methods is a matter of personal freedom. As not only a fertility consultant, but also a grateful parent thanks to IVF, I couldn't agree more. IVF allows people to experience the joy of parenthood. All Americans, especially any American with hopes of starting a family one day, should bring their fertility concerns to the voting booth, demanding that politicians not only get behind but also protect this miracle technology.

 

 

Stephanie Levich is the Founder of Family Match Consulting, LLC,which assists clients in finding their perfect egg donor and surrogate candidates. Stephanie has been named one of America’s Top Entrepreneurs Under the age of 30 by Inc. Magazine and has been featured in various publications including Valley Life, and ForbesWoman. She is very grateful for the miracle of IVF which helped bring her to her very proudest accomplishments: her two beautiful children.

 

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ASRM and SART Exert Pressure to Hinder Legislation in Several States

As expected, personhood legislation was overwhelmingly approved by both the Virginia House of Delegates and the Oklahoma Senate this week. In Virginia, the GOP controlled House approved HB1 which now moves to the Senate for a hearing February 23 at which an ASRM member is preparing to testify. RESOLVE, The National Infertility Association also held a press briefing which garnered press attention on the harms of the bill. In Oklahoma, the Senate approved SB1433. ASRM/SART sent letters of opposition to lawmakers in both states and activated its members to send their own letters. Meanwhile, a personhood bill has been filed in Mississippi.

 

In Maryland, ASRM/SART submitted letters of opposition on HB 873/SB 508, legislation aimed at governing surrogacy contracts, but that go much further in application. The bills would require a fitness standard of intended parents, a level of scrutiny that is unprecedented and unwarranted and would permit a court to terminate a gestational carrier agreement for good cause, a term not defined. ASRM is gravely concerned about provisions creating an assisted reproduction registry that far exceeds federal law reporting requirements and which would require tracking of every embryo. Hearings will be held in the House Judiciary Committee and Senate Judicial Proceedings Committee on February 23 and March 6 respectively. An ASRM representative will testify at those hearings.

 

Legislation to ban all surrogacy contracts passed the South Dakota House this week. HB1255 has been referred to the Senate Health and Human Services Committee, members of which received a letter of opposition from ASRM/SART.

 

ASRM/SART sent a letter of opposition to members of the New York House and Senate health committees regarding problematic sperm donor legislation. AB 9039/SB 6272 would curtail the rights of patients who need a sperm donor to build their families. The bills would limit to ten the number of offspring any one donor can conceive and create a donor registry in the state. ASRM argued there is no scientific evidence to support the cap at ten and referenced existing professional guidelines while maintaining a single state based registry would not only be ineffective, but also intrusive.  

 

The Affordable Care Act: Find Out More at Fertility Within Reach

YOU can make the difference!
 
Beginning 2014, under the Affordable Care Act, consumers can choose and purchase insurance plans that will cover a comprehensive and affordable set of health services.

The Department of Health and Human Services (HHS) has created a proposal to establish how essential health benefits will be defined and what they include.  At this time, Infertility benefits are not included. 

States with mandated insurance coverage risk losing their benefits!

 

Public input on the HHS proposal is encouraged. Comments are due by Jan 31, 2012 and can be sent to: [email protected]

 

HHS needs to know why Infertility benefits are essential and affordable.

 

It’s simple: Fertility Within Reach’s website has:
· Facts and research supporting multiple cost-savings to insurance premiums associated with the coverage of infertility insurance benefits.
· A sample letter to get you started.

 

Visit www.fertilitywithinreach.org

 

Yes, It Is STILL Illegal to Pay a Surrogate in WA STATE!

I know that many have been misinformed regarding WA state and the new laws. Commercial or Paid surrogacy is STILL not legal in WA state. I testified on the bill this year and last year. What happened is that the senate took everything surrogacy out of the HB 1267 bill and kept in the domestic partner portion in it and that is what passed. Here is a link of the summery to that final HB 1267 bill that will become effective July 22. Lets hope that next year offers a better solution for those needing surrogates here in the great North West!

Are You Ready for National Infertility Awareness Week (NIAW)?

National Infertility Awareness Week is April 24th through the 30th and is a great time to raise awareness to those around you regarding those 1 in 8 people who are struggling with infertility. Consider donating some time to RESOLVE—even an hour can make a big difference! You will meet amazing people—most are resolving or have resolved their infertility—and you will make a difference for the 7.3 million who have infertility. You will benefit as well as those you end up educating. Talk to your friends and family and share information, books and links about the facts and myths of infertility. We can make a difference, together!

Washington State to Legalize Surrogacy? Bill HB 1267 Just Might be the Ticket!

Washington State is giving another stab at passing a great bill into law (in my humble opinion), House Bill HB 1267. On Monday, January 24th, I arrived early at my states capitol in Olympia, ready to be heard. (Yes it was rainy but it is WA!) 

Just in case you are drawing a blank, last year we tried to pass this same bill under different numbers, HB 2793. It didn't pass and so here we go again! Just a recap of what this bill stands for; HB 1267 expands and clarifies the rights and obligations of state registered domestic partners and other couples related to parentage AND establishes consistent standards and procedural safeguards for the protection of all parties involved in a surrogacy contract in this state and to confirm the legal status of children born as a result of these contracts. As things stand now, 'commercial' surrogacy is illegal but compassionate (unpaid) surrogacy arrangements are fine. However even women who are 'unpaid' are not protected and can be exploited. This law, the surrogacy portion of it, reads like a contract drawn up in any of the states that have laws and statutes regarding surrogacy already in place. But in Washington State issues that are 'suggested' in those contracts will be Mandated here. (read page 37). 

I do have a couple of concerns here in regard to Traditional Surrogacy portion of this bill and in regard to the mandated disability insurance clause. But I think that those items will be discussed and hopefully cleared up before this bill hits the senate for a vote. (assuming it passes the House!) 

Below is my testimony but know that I did ad lib a bit. I couldn't help myself after seeing several Intended Parents speak emotionally before me about the rigors and expense of going out of state in order to build their families via surrogacy. I could certainly agree with them, as you will read below! 

"My name is Sharon LaMothe and I am the owner of an educational website on building a family through Assisted Reproduction Technology (ART) called Infertility Answers plus I am owner of LaMothe Services, a Reproductive Business Solutions Service and LaMothe Surrogacy Consulting, a Washington based consulting program to assist Intended Parents here in Washington (and other states) learn about the surrogacy process and what they need to do to make their dream of having a family via surrogacy a reality. I also owned a surrogacy agency in Florida which stopped taking new clients when I moved to the Seattle area in 2007. 

Briefly, I am a past 2x Gestational Surrogate. I resided in New York State during my first surrogacy experience and because of the legalities in NY (very similar to WA states current laws) I was forced to leave the NY weeks before the twins were due and fly to Florida (where the laws are favorable for married couples) and give birth there in the Tampa Bay area. I gave birth via C-section so that operation added recovery time which kept me away from my husband and two young children a total of 6 weeks. Not only is it not wise to travel while pregnant, recuperating without your own family and friends around wasn't easy or desirable. However I was compelled to help my friends, the Intended Parents in this case, have the family that they always wanted. The contracts were drawn up in Florida and included some compensation. The psychological and medical screenings were done there as well as the actual embryo transfer. As you can see this took me out of NY state quite often at the IP's expense. I DID volunteer to be their Gestational Surrogate however it would have been MUCH less expensive and easier if I could have stayed in my home state not to mention my home town. (but we knew each other and they didn't want to work with a 'stranger')

My second surrogacy was for a same sex couple from Manhattan and although I had moved to Florida to run my now successful surrogacy agency with my business partner and to give birth, CT had passed a law where both fathers could be placed on the birth certificate. Because that was a favorable outcome for THEM I agreed to travel to CT for the birth of this second set of surrogate twins. I was away from my family once again for approximately 4 weeks and most of that in a hotel room at the Intended Parents expense. Needless to say that if Florida allowed both fathers to be on the birth certificate it would have been wonderful for all involved. 

Because of my past experiences and those of other Surrogates and Intended Parents whom I had matched through my Florida Surrogacy Agency and knowing that Washington State does not allow compensated surrogacy arrangements, I have been working with couples who have been told that the only way they can have a biological child is via surrogacy. Often times the clinics have no further information to share and these intended parents feel like they are on their own with no guidance or information. They will turn to the Internet but swiftly find that they are overwhelmed with information that isn't understandable or pertinent to their unique circumstances. I have helped find agencies in states that they have family or friends in, find clinics that are cost effective, locate attorneys who are knowledgeable and experienced in contract negotiations and find mental heath professionals to help them through this emotional process. Some Intended Parents have family members or friends here in WA state who will waive any compensation and carry a baby for them. These people still need to have all the support and education they need to make an informed decision UP FRONT and that's where my expertize comes into play. 

I feel that if this bill is finally passed into law we will see less travel out of our state and perhaps more people coming to WA to use the facilities that already offer services to families using assisted reproductive technology without the surrogacy component. (egg donation, IVF, IUI etc.) It would be more convenient, less expensive and conducive to great surrogacy relationships between IPs and the woman carrying a baby for them here in a state that would be supportive and have laws in place that would protect one and all." 

I hope all my readers will support HB1267 and I will keep you posted on the results.

WA State House Bill 2793: Testimony and Thoughts on Legalizing Gestational Surrogacy

"Brief Summary of Substitute Bill: 2793 Amends the Uniform Parentage Act to:

(1) incorporate state-registered domestic partnerships and same-sex couples throughout its provisions;

(2)adopt changes made by the National Conference of Commissioners on Uniform State Laws; and

 (3) make it gender-neutral.

Establishes standards for gestational surrogacy contracts and sets forth requirements that intended parents and the woman acting as a gestational surrogate must meet to have a valid gestational surrogacy contract."

Thursday the18th was a very exciting day for me here in Washington State. I was asked to Testify in front of the State Senate regarding the bill HB 2793 Legalizing Gestational Surrogacy. Not only would HB 2793 legalize surrogacy but it also makes a strong positive statement to the Gay and Lesbian community regarding the Uniform Parentage Act.

My part in all this was small yet I did have an impact and a voice for Gestational Carriers in this state and others regarding our commitment to the Intended Parents we give birth for.I spoke with two of the HB 2793 bill supporters after, Senator Kessler and Representative Pedersen, who both stated that while reading in black and white about issues faced while living in a state that makes surrogacy illegal, hearing first hand about the impact and tolls it puts on Intended Parents and Gestational Carriers who must leave this state to realize their dream of building families through surrogacy made all the difference.

Most of you know that I moved to the Seattle area only three years ago. However, when I was a Gestational Carrier, I lived in NY where commercial surrogacy is also considered illegal. I used my own personal experiences to drive home the need to legalize surrogacy here in WA State. My Intended Parents were in Florida and I had to travel there several times for testing and transfers. During the pregnancy the IPs had to travel to NY to see me as well. A lot of money was spent on travel. When I was about 32 weeks I had a gallbladder issue that threw me into premature labor. Once stabilized I had to once again travel to FL because, God forbid, I could NOT give birth in NY. I was unexpectedly away from my own husband and children much longer then I intended after giving birth to twin girls at 34 weeks via an unplanned c-section. All told I was gone from my home for about two months.

I have a similar story of flying all over kingdom come for the same sex couple I ended up giving birth for in 2005 so that both of the Intended Fathers could be on the birth certificate. Now with the possibility of these new surrogacy and parentage actions in WA state it will be SO much easier for a surrogacy arrangement to happen between family, friends and, yes, strangers.

I now am looking toward Spring and early Summer in hopes that all the signatures required are collected and that the Governor signs it ASAP.

I would also like to acknowledge the two WA state Intended Mothers who also testified and who missed out on a lot of the joys of sharing a pregnancy with their out of state Gestational Carriers and the one Gestational Carrier who actually resided here in WA State and gave birth out of state for one couple and delivered in WA State for another Intended Parent for zero compensation. All the stories were heart wrenching yet joyous because they all ended up giving and getting what they wanted the most: the chance to build a family via surrogacy!

To read this bill yourself please visit: HB 2793