We are going through uncertain times, the world is being affected by the COVID-19 pandemic, countries are being shot down, people on isolation, economical unrest and laws changing everywhere. In this exclusive article for MySurrogateMom, lawyer Amy Demma, shares her thoughts and recommendations regarding surrogacy agreements with our community.
From the time MySurrogateMom asked for input on the fertility treatment pause we went from an ASRM directive to suspend treatments to an RE summit with 1,000 reproductive endocrinologists debating whether clinics could and should provide services to a patient-oriented summit discussing the same to an executive order, issued by my governor, Andrew Cuomo, on the very day we participated in the patient summit, establishing fertility treatments as ‘essential’ medical care. Whew!!! My head is spinning with confusion but also with worry that intended parents, surrogates and even colleagues just don’t know when, if and how to take next steps.
For those engaged in compensated surrogacy agreements, Governor Cuomo deeming fertility treatment as “essential” is irrelevant as those of us in New York will not be able to pursue comped surrogacy cases until next February. (For these engaged in compassionate/non-compensated arrangements in New York, we now have the green-light to continue.) But, for the majority of planned surrogacies, there are roadblocks after roadblocks: closed clinics, closed courts, hospitals with restrictive policies regarding who can gain entry to be present at a birth, who can visit a newborn in the nursery, etc. Roadblocks are not new to those needing assisted family building but these government mandates and resulting institutional policies are new to us all.
I trust that my fellow ART attorneys, partnered with agency owners, program managers and clinic directors are assisting those surrogates and intended parents with a baby already on the way. But, what about those anticipating a match? During last week’s summits, both the physician meeting and the patient meeting, the frustration and anger of those abruptly stopped from continuing treatments was heartbreaking and their arguments, frankly, quite compelling. Patients feel discriminated against, they feel their reproductive rights were infringed upon given that there was no mandate that all American women cease efforts to become pregnant, only those engaged in medically assisted family building must pause – fair point! My message to those who want to be heard about this is to do just that, be heard. RESOLVE has tools that will help you to identify your elected officials and they offer tips on how to effectively communicate with your representatives. Access the tools, contact your state legislators, be empowered, be heard.
But maybe you are not at the starting line yet, perhaps you are not yet anticipating an otherwise postponed embryo transfer. Suppose you are about to sign an agency agreement or about to match with a surrogate or about to sign a Gestational Carrier Agreement – do you proceed? I say, go for it! You know you’ll have a longer journey than anticipated. You know you won’t start for months. But, your downtime does not have to be not-productive time. Now is the time to engage the mental health professionals on your family building team. Now is the time to explore more deeply the emotional aspects of a surrogacy journey. Our mental health colleagues are at home, like the rest of us, but not unavailable. In fact, this downtime offers a chance to delve into your fears, your worries, your excitement, your expectations at a pace that perhaps might not have been an option at another time. And if you are already matched, your surrogate will benefit from more extensive time with a mental health professional, as well. Begin preliminary discussions with your attorney, not necessarily actual work on your agreement, but chat with her or him, let them get to know you as a whole person not just a client. Your agency will guide you as to when hard next steps can be taken but taking the time now to really understand and to express who you are in this process will make for a smoother journey once you are able to put your foot to the pedal and proceed.
Thank you Amy!
Reproductive Lawyer. Founder of Amy Demma Law Offices. Providing services in Reproductive Law, offering legal counsel to parents, egg donors, embryo donors, and parties engaged in compassionate/non-compensated surrogacy as well as clinical practitioners and agencies.