Melissa Brisman: Surrogacy Simplified

Medical, Legal, and Financial Options Presented by Melissa B. Brisman, Esq., LLC & IVF NEW JERSEY

2012-02-29T20:32:00.000-05:00

Please join Melissa B. Brisman, Esq., LLC & IVF NEW JERSEY for a presentation on the Medical, Legal, and Financial Options that are available to same-sex female couples when building their family! We would love to see you there!

Thursday, MAY 10, 2012 6:30 - 8:30PM
Light Refreshments Served
Speakers: Melissa B. Brisman, Esq. - Reproductive Lawyer
Dr. Susan Treiser - Reproductive Endocrinologist
Phil Chronakis, Esq. - Trusts & Estates
Ellen DeSarno, CFP - Certified Financial Planner
This informative seminar will cover the medical, legal, and financial options available to same-sex female couples when building their family.
The Maplewood Memorial Library
51 Baker Street (Memorial Hall), Maplewood NJ 07040
Registration is FREE!
Contact Jacki at info@reproductivelawyer.com or 201-505-0099
Sponsored by: Attorney Advertising
http://www.ivfnj.com/ http://www.reproductivelawyer.com/
81 Veronica Ave. Somerset, NJ 08873 1 Paragon Drive, Suite 158 Montvale, NJ 07645

YOURS OR MINE? By Melissa B. Brisman, Esq. and Nancy M. Hartzband, Esq.

2012-02-14T08:30:00.002-05:00

By Melissa B. Brisman, Esq. and Nancy M. Hartzband, Esq.

While it’s a safe bet that it won’t be the most romantic activity pursued on Valentine’s Day, couples may want to think about their cyropreserved (frozen) embryos, to be sure that they are on “the same page” and that their intentions for future use and disposition have been addressed in a written and signed document.

It’s hard enough for divorcing couples to reach an agreement over the custody of children born to the marriage. Imagine the difficulty in determining the custody of potential children as a result of embryos, created from the egg and sperm of a divorcing couple? Because couples have turned to the legal system to consider the status of the cryopreserved embryos, U.S. Courts have had no choice but to confront the competing interests of couples, who created embryos during happier times. Within the judicial system, embryos are considered neither children nor property but are afforded special respect because of their potential to become human life.

Typically, fertility clinics require couples seeking cryopreservation to consider future disposition of the embryos under a variety of circumstances, including separation and divorce. The clinics request that
the couple complete and sign an agreement or consent form specifying instructions for disposition of their cryopreserved embryos.

But what happens if there is no such document?

Consider these facts: A husband and wife had been through several unsuccessful in vitro fertilization (“IVF”) cycles, after which one spouse chooses to file for divorce. Along with deciding who gets the
house, they now have to decide what to do with seven cryopreserved embryos which remain in storage at their fertility clinic, and there is no written agreement or consent form on file with their clinic.

Essentially, these were the facts presented to the Tennessee Supreme Court in Davis v. Davis *¹. Even though no longer married, the wife wanted to keep the embryos and donate them to another couple for reproductive purposes The husband did not want any part of that plan, preferring to have the
embryos destroyed. Because there was no written arrangement in place, the Tennessee Court tried to strike a balance between the husband’s and wife’s opposing interests in procreation. The Tennessee Court sided with the husband, reasoning that there were other means in which the wife’s plan could be achieved, namely through IVF cycles, or through participation in the adoption process. However, the Tennessee Court noted that had there been a prior written agreement, the remaining embryos would have been disposed of in accordance with the couple’s instructions at the time it was signed.

If there is an agreement in place, can the parties expect that it will be enforced?

In at least four states, appellate courts have enforced prior agreements regarding the disposition of cyropreserved embryos, when challenged in a divorce action.   In the New York case of Kass v. Kass *² a husband and wife had five cryopreserved embryos created in connection with a number of failed IVF cycles. While married, they executed a written agreement, which stated that in the event of divorce, the remaining embryos would be used for research by the IVF clinic where they had been patients. Pursuant to their divorce, the couple also negotiated and executed a property settlement, which outlined the distribution of marital assets and restated the parties’ intention that the cyropreserved embryos be used for research, with neither of them retaining custody of the embryos. After the divorce, the wife had second thoughts and commenced an action to negate the prior agreements so that she could obtain custody of the embryos for her own use. Although successful at the trial court level, on appeal, it was ultimately decided that the husband and wife had clearly expressed their intentions for disposition of the embryos both prior to and at the time of the divorce. Essentially, the higher court concluded that the husband’s desire not to procreate outweighed the wife’s right to procreate. (Note* The appellate court ruled on the basis of contract law, and therefore did not address the larger issues related to male and female procreative rights. It also did not recognize the embryos as “persons” for purposes of constitutional arguments.)

Similarly, in Marriage of Dahl *³, an Oregon appellate court gave effect to a cryopreservation agreement that granted the wife decision making authority if she and her husband could not agree to disposition
of the embryos they had created. The wife wanted to destroy the embryos, while the husband wanted to donate them to another couple. In a Texas 2006 case, Roman v. Roman*⁴, the position of the spouses
was reversed, but the result the same---- the court upheld the agreement signed by the couple and according to the wife’s wishes, the embryos were destroyed.

Finally, in a Washington case, Litowitz v. Litowitz, *⁵, embryos had been created with the husband’s sperm and donor eggs. An agreement for disposition of the cryopreserved embryos was in place, and stated that any embryos still in storage five years after the initial date of cryproeservaton would be thawed, without further development. Once again, the agreement was upheld, and since five years had passed by the time the case was decided, the remaining embryos were thawed and discarded.

What if there is an agreement in place, but circumstances have prompted a change of heart by one of the parties?   Do courts ever recognize or allow a party to change his or her mind regarding
disposition of the embryos?

The answer is yes, however but only if a court can find that “contemporaneous mutual consent” is present. This approach is similar to the contractual approach discussed above, in that the court first looks to whether the disputing parties have an agreement in place expressing their intentions. Despite the agreement, the court will consider a person’s current or contemporaneous wishes, values, and beliefs if he or she has changed their mind since signing the agreement. However, practically speaking, and as a matter of public policy, the court is unlikely to force someone to become a parent against their wishes. In order to disregard the terms of the agreement and allow use of the embryos for procreation purposes, both parties would have had to change their minds and mutually decide to reject the agreement.

The New Jersey Supreme Court adopted a “contemporaneous mutual consent” approach in the case of J.B. v. M.V.*6.   The couple underwent an IVF procedure, and J.B. became pregnant and gave birth to
a daughter. The remaining eight cryopreserved embryos were in storage, when J.B. filed for divorce. J.B. wanted the embryos destroyed, while M.V. wanted to use the embryos or donate them to another couple. An agreement between the couple stated that in the event of a divorce, or a court order directing otherwise, the couple would relinquish custody of any remaining embryos to their clinic’s IVF program. The New Jersey Court found that the agreement entered into at the time of the IVF procedure was enforceable, subject to either party’s right to change his or her mind about disposition, but only so far as use or destruction by the IVF clinic of any stored embryos. Consequently, as J.B. did not object to continued storage, (only use by M.V. or donation to third parties for reproductive purposes), the embryos were not transferred to the clinic’s program, but remained in storage as long as M.V. continued paying the associated storage fees.

The Supreme Court of Iowa took a similar approach in In re Marriage of Witten * ⁷ wherein the couple had undergone several failed embryo transfer attempts and had seventeen embryos in storage at the
time they decided to file for divorce. The wife wanted to have the embryos implanted in her uterus, but her husband wanted them destroyed. Their signed agreement required joint consent for release of the embryos, and set forth an exception if either of them died, but was silent as to what would happen if the couple divorced. The Court held that where there was disagreement about disposition,
“contemporaneous mutual consent” is needed to override the agreement. Without that mutual consent, no transfer, release, use or other disposition is possible. Practically, this meant that the embryos stayed in storage, with the wife, who opposed destruction, responsible for storage fees.

While neither the New Jersey nor Iowa court enforced the respective agreements by requiring that custody of the embryos be transferred to the IVF clinics, each upheld the party’s right not to procreate.

The State of Massachusetts resolved the issue somewhat differently. In A.Z. v. B.Z *⁸, the Court refused to enforce a cryopreservation agreement that gave custody to the wife for implantation should the
parties separate. This case was unusual though because the court was not convinced that the agreement reflected the intent of the parties, as there were ambiguities in the language and several questions surrounding its execution. However, the Court ruled that even if the agreement had been clear and unambiguous, it would not enforce a clause that would compel an individual to become a parent against his or her wishes.
Legal precedent over the disposition of cyropreserved embryos is evolving ever so slowly, yet certain judicial tendencies have emerged. Clearly, embryos hold a distinct and unique status in the law. If there is an agreement in place regarding disposition, and a dispute arises, a court will look to the terms of the agreement to resolve the conflict, provided that enforcement of the agreement does not result in procreation over one of the spouse’s wishes. In the absence of an agreement, a court will look to an individual’s right to privacy, and the person seeking to avoid future reproductive use of the embryos will likely prevail. Without question, the judicial system is being asked to resolve very difficult and intimate conflicts, and has been upholding the intentions and terms set forth in agreements, as long as parentage is not being forced, as to do so would be against public policy.

Couples seeking to avoid judicial interference, wherein one party is inevitably displeased with the outcome, are best to discuss their intentions with one another, before emotions rule and other divorce related issues cause them to lose perspective. It is essential to seek the advice and expertise of a reproductive lawyer, at the time of crypopreservation, rather than when conflict is past the point of resolution. An experienced reproductive attorney can counsel and guide a couple through the process, as well as draft and review the document necessary to reflect their wishes.

Happy Valentines Day!!

*References
1. 842 S. W. 2d 588 (Tenn.1992)
2. 696 N.E. 2d (N.Y. 1998)
3. 222 Or. App 572 (Oregon 2008)
4. 193 S.W. 3d 40 (Texas 2006)
5. 48 P.3d 261 (Wash.2002)
6. 783 A.2d 707 (N.J. 2001)
7. 672.N.W. 2d 768 (Iowa 2003)
8. 725 N.E.2d 1051 (Mass. 2000)
Bios:
Melissa B. Brisman is an attorney who practices exclusively in the field of reproductive law and is considered by her peers to be a leader in her profession. Ms. Brisman’s experience and qualifications are unparalleled. She employs an experienced and qualified staff of legal and administrative professionals and is licensed to practice law in Massachusetts, New Jersey, New York and Pennsylvania. Ms. Brisman has a practice, Melissa B. Brisman, Esq., LLC, located in Montvale, New Jersey, offering a full range of legal services in connection with gestational carrier arrangements, ovum, sperm, and embryo donation, and adoption. In addition, Ms. Brisman is sole owner of Reproductive Possibilities, LLC, an agency that facilitates gestational carrier arrangements, and Surrogate Fund Management, LLC, a company that manages escrow in connection with reproductive arrangements.

Nancy M. Hartzband is an attorney licensed to practice law in New York and New Jersey, and is a graduate of Fordham University School of Law. Prior to becoming an associate in Ms. Brisman’s firm, she was a matrimonial law attorney and mediator. Ms. Hartzband is a member of the New Jersey Association of Professional Mediators.

Carrying and Delivering a Child: When is it too old?

2012-02-09T22:09:00.000-05:00

101 fit and healthy post menopausal women, using donor eggs in connection with IVF treatment were part of a recent study at Columbia University Medical Center published in the February issue of he American Journal of Perinatology. To date, this study is the largest one conducted. You may be very surprised by the results, which indicated that the post menopausal women were at no greater risk than younger women who also conceived through an egg donation and IVF treatment.

Evidently, women over the age of 50 have the same chance of experiencing complications related to pregnancy as do women 42 and younger. Some of these complications include, gestational diabetes, and premature labor. Dr. Mark Sauer, Chief of Reproductive and Endocrinology at Columbia said that, “These women do pretty well. If they’re well screened and well cared for they really should do ok.” Dr. Sauer noted that “the uterus is a very different organ than the ovaries”. While egg production definitely decreases with age, the ability to carry a child conceived with donor eggs changes less over time.

While it is true that many IVF clinics have a cut off age, this has less to do with their ability to carry, than concern that a woman might not live long enough to raise the child she delivered. However, many women in their fifties today are as fit and healthy as women ten or fifteen years younger------ think Madonna, Meredith Viera, or Geena Davis. If the average woman lives into her early eighties, what’s the problem?

We invite you to write a post and share your thoughts.

Welcome to the Year of the Dragon!!

2012-01-30T13:42:00.000-05:00

Welcome to the year of the Dragon. This year, January 23, 2012 to February 9, 2013, is considered to be the luckiest year to be born, according to the Chinese Zodiac. It is said that in a group of people, "the Chinese Year of the Dragon person" stands out. There is a certain aura about them. This comes from the belief that the Chinese Dragons are from the sky, (which means heaven in China). For China, this is a symbol of power from heaven.

A person born in the Dragon year is believed to have natural talents and abilities and will double their efforts in all they do, whether in work, education or other projects.

The Water Dragon (this current year) produces people who are far more sensitive to others' needs, and are more likely to be progressive, diplomatic as well as socially and environmentally conscious. Water is a more peaceful type of Dragon, so it is anticipated that this person will act wisely and intelligently and is willing to set aside their ego for the good of all.

Dragons are ancient, majestic, wise, and intelligent, and Dragon years are considered particularly lucky for new businesses, marriage and children. Dragon years also tend to increase individual fortunes and the world economy.

The Water Dragon year of 2012 is most likely to bestow the Chinese Five Blessings of harmony, virtue, riches, fulfillment and longevity. With that in mind, it is not surprising that many Chinese couples have become very interested in having a child this year.

It appears that even couples with no known fertility issues have been seeking out IVF treatments to increase their chances of welcoming a child this year. There was a recent article about a Chinese-American women who froze her eggs two years ago as "insurance" that they would have a Dragon baby.

As a surrogate agency, we have found a remarkable boost in the number of Chinese clients who are seeking out the help of a gestational carrier to help them start or build their families. These are the couples that have had fertility issues in the past and are now looking for the help of a third party to make their dreams come true, and what better time to do this, than during the year of the Dragon.

For those of you who would like to see if you may have been born in the year of the Dragon, these are the past four Dragon years:

13 February 1964 – 1 February 1965: Wood Dragon
31 January 1976 – 17 February 1977: Fire Dragon
17 February 1988 – 5 February 1989: Earth Dragon
5 February 2000 – 23 January 2001: Metal Dragon

People born in the Dragon years are to be honored and respected.

Hopefully, our couples with the help of their gestational carrier, will become proud parents of a Dragon baby!

Surrogates: Please Share Your Experiences With Us!

2012-01-27T19:09:00.000-05:00

　A recent study from the Centre for Family Research, University of Cambridge found that acting as a surrogate does not negatively affect the psychological wellbeing of the surrogate’s children. Sixteen children (seven boys and nine girls) between the ages of twelve and twenty two participated in the study. This data was presented at the British Fertility Society’s annual meeting.

We invite all surrogates to share their experience. We, as well as women thinking about becoming a surrogate, or those currently acting as a surrogate want to know if your children’s experience was similar to those in the recent study. How did you first tell your children of your decision to become a surrogate. What was there reaction? What questions did they ask? Did your children share the news with their friends, and if so how was the news received? Do any of your children have contact with the child that you delivered either in person or through social media?

ASRM Recommendations for Embryo Transfers: How Do You Interpret These Findings?

2012-01-16T17:09:00.000-05:00

The results of a recent United Kingdom study indicate that women who are implanted with three or more embryos do not have better odds of giving birth, than those women implanted with only two embryos. “Women who have gone through infertility treatment want the best chance of having a baby, but we need to explain that the data shows that transferring more embryos doesn’t actually do that,” said Scott Nelson, M.D. head of reproductive and maternal medicine at the University of Glasgow, who along with Debbie Lawlor of the University of Bristol, co-authored the study.

Apparently some western European countries pay for IVF procedures and authorities there often recommend a single embryo transfer for women under 37 through 40 years of age. For those women over the age of 40, a transfer of three embryos is often the limit. In the United States, in vitro fertilization or IVF treatment is often paid for privately. Because of its high cost and the lack of regulation in this area, more embryos are transferred in the hopes that it will increase a couple’s chances of having a child. Consequently, the

United States

has seen a rise in multiple births.

The American Society for Reproductive Medicine (ASRM) recommends single embryo transfers for women under 35, but it is not a recommendation that is enforced. For those women between the ages of 35-37, ASRM recommends transferring two to three embryos, and for those women between the ages of 38-40, the recommendation is three to four embryos.

In the United Kingdom study, 124,000 IVF cycles occurring during 2003-2007, with 33,500 live births were analyzed. The cycles involved women from 18-50 years of age, with varying histories of infertility. For those under 40, who had two embryos transferred, the live birth rate was 33%. When three embryos were transferred, the live birth rate decreased to 25%, although the researchers were not sure why. Dr. Nelson suggested that this might be due to the higher risk of miscarriage in a multiple pregnancy and that miscarrying one fetus would jeopardize the entire pregnancy.

How do you interpret these findings? Do you think ASRM recommendations should be monitored and enforced? Or, do you think it is a decision to be made by the couple receiving IVF treatment?

Fertility Clinics Fail to Disclose Embryos Created from Donated Eggs Could be Used in Stem Cell Research

2012-01-06T06:30:00.001-05:00

A recent government survey uncovered the fact that many United States fertility clinics fail to disclose to egg donors that embryos created from their donated eggs could be used in stem cell research. This is startling in view of the fact that it has been reported that nearly one third of all Americans do not support stem cell research.

“The survey shows that only a majority of IVF (in vitro fertilization) clinics mention to egg donors who are donating for the sake of treatment (as opposed to research) that resultant embryos might ultimately be used in research,” said study co-author Gerald Owen Schaefer of the National Institutes of Health in Bethesda, Maryland. Dr. Schaefer noted that an even smaller minority mention stem cell search explicitly and he believes that this is material information which could affect some women’s decision about donation.

Some women participate in egg retrieval as part of their own fertility treatment, and for others it is pursuant to an agreement with Intended Parents, for which compensation is received. In either scenario, an IVF clinic’s practice and policy regarding donated eggs and resultant embryos should be revealed, allowing a woman to choose whether to work with a particular IVF clinic based upon its policy concerning future use of her genetic material.

Your thoughts? Does your opinion change if it is an anonymous donation and donor receives compensation?

Happy New Year! From the Staff of Reproductive Possibilities, LLC

2012-01-01T00:01:00.001-05:00

Wishing you a very happy and successful 2012!

All our best,

Melissa and the staff of Reproductive Possibilities!

Happy Holidays from All of Us at Reproductive Possibilities, LLC

2011-12-20T08:00:00.002-05:00

Happy Holidays from the Office of Melissa Brisman!

We wish you a safe and joyous holiday season!

Intended Parents: What to Expect When Working with Reproductive Possibilities, LLC

2011-12-16T09:00:00.002-05:00

The first step for intended parents is to contact our agency for more information. This can be done by selecting the Contact Us tab on our website or by calling us at 201-505-0078. Intended parents are encouraged to schedule a consultation with Melissa Brisman to discuss the specific details of their situation and develop a plan to build their family. As our clients come from around the world, consultations can be conducted over the telephone or in person at our office. When you come to our office, you will also have the opportunity to sit down with one of our Intended Parent Coordinators to discuss the Surrogate mother process step by step. It is our goal to give intended parents a full picture of how their journey to parenthood will proceed.

Once you sign a Service Agreement with our agency we will work with you to develop your individual criteria for your gestational carrier. With the preferences of the intended parents in mind, our Intended Parent Coordinators get to work searching our database for a match.

Reproductive Possibilities, LLC maintains a database of women available to be surrogate mothers for intended parents. Each of our carriers must complete an extensive application and interview process before being entered into our database. Through this process, only surrogates that we are comfortable recommending to our clients make their way into our program.

After all screening processes are complete, including medical and psychological, we then coordinate the review of the surrogates insurance and the execution of a surrogate mother contract.

When the surrogate mother contract is signed, Intended Parents are required to deposit their surrogates fee into an escrow account. Intended Parents are welcome to use an escrow manager of their choice or retain the services of Surrogate Fund Management, LLC, a fully insured escrow management company wholly owned and operated by Melissa Brisman.

Our office stays by your side as you approach each embryo transfer, throughout your pregnancy and during the legal process required to name you as legal parents of your child(ren). When your journey is over, we celebrate the birth of your child(ren) with you and remind you to send us pictures.

We walk side by side with hundreds of intended parents every year on this exciting journey.

Breast Cancer: Women Must Be Informed of Fertility Preservation Before Treatment

2011-12-08T08:00:00.002-05:00

Breast Cancer Survivor and Reproductive Endocrinologist Share Crucial Information about Fertility Preservation

Life-saving cancer treatments such as chemotherapy and radiation can destroy the reproductive potential of women, presenting an additional struggle for the estimated 230,480 women who will be diagnosed with breast cancer in 2011 – the most common cause of cancer among American women.

Advancement in fertility technology gives patients the ability to preserve their fertility prior to cancer treatment. To ensure the option of biological children in the future, women can freeze their eggs or embryos, also known as cryopreservation. After two weeks of medication and monitoring, the patient undergoes an egg retrieval. Eggs can be fast-frozen after retrieval using a state-of-the-art method called vitrification, or they can be used to create embryos which are cryopreserved. Frozen embryos are a more successful option should the patient have a partner at the time of treatment.

Ursula Rotman, a 41 year old local breast cancer survivor, found a lump in her breast while breastfeeding. Further testing revealed triple negative breast cancer. Devastated at the possibility of being unable to have another biological child, Ursula underwent an egg retrieval and froze the resulting viable embryo. Over the course of six months, Ursula underwent a lumpectomy, chemotherapy, radiation as well as taking Lupron to reduce potential ovarian damage during chemotherapy. Now cancer free, Ursula hopes to conceive in the future. “My husband and I were about to start trying for another baby when I found the lump. For me, the possibility of losing my fertility was more devastating than being diagnosed with breast cancer. Knowing that I had preserved my fertility is what kept me going,” explains Ursula.

Dr. Edward Marut, reproductive endocrinologist with Fertility Centers of Illinois, explains that it is crucial for women be made aware of these options immediately, to allow enough time to pursue the treatment. “Cancer diagnosis is a traumatic experience, but to learn that you cannot pursue a biological child after surviving cancer causes additional trauma that can be avoided. As with any diagnosis, patients must be given all of their options so they can choose what works best for their personal needs and goals.” he adds.

The Fast-track Fertility Preservation Program at FCI enables women to fast freeze their eggs or embryos with the benefit of a discounted rate for treatment and medications. To further assist patients, FCI has joined forces with Fertile Hope’s Sharing Hope Program for Women. Fertile Hope is national non-profit organization dedicated to supporting cancer patients faced with infertility and The Sharing Hope Program increases access to egg and embryo freezing for newly diagnosed cancer patients by working with companies and clinics to arrange discounted services and donated medication for eligible participants. For more information visit www.fertilehope.org. For more information on FCI’s Fertility Preservation Program visit: http://fcionline.com/fertility/fertility-planning/cancer-treatment.

###

Fertility Centers of Illinois, S.C., is one of the nation's leading infertility treatment practices, providing advanced reproductive endocrinology services in the Chicago area for more than 30 years. With a team of nationally recognized reproductive physicians, and half of all patients seeking treatment elsewhere before finding success at FCI, the practice has earned a reputation for overcoming hard-to-solve fertility issues. Due to the large number of patients seen and high success rates recognized throughout the nation, all FCI physicians, embryologists and support staff are stringently chosen based on educational background, medical skills and their ability to collaborate. FCI is part of IntegraMed, the nation's largest and most reputable network of fertility centers and FCI has multiple offices conveniently located throughout the Chicago area. For more information visit www.fcionline.com

2011-11-25T09:00:00.001-05:00

Happy Thanksgiving from all of us at Reproductive Possibilities!

"Nobody’s Child" by Austin Boyd, A Brisman Book Review

2011-11-09T10:00:00.001-05:00

In my opinion, this book is a form of indoctrination. It is written by a preacher who I believe is on a mission to prove that reproductive choice is against god, and therefore evil. The warning is clear, if you engage in any sort of alternative reproduction you will be sorry. His message is that god loves all his children and will forgive you but you must live with the consequences of your choices. It uses scare tactics to elicit feelings of fear and cautions the reader that if you chose the wrong path you will be sorry.

The author, Austin Boyd, depicts, Laura Ann, a young woman who undergoes egg donation procedures that she gets paid for, in order to make money to help pay for her father's cancer treatments and to save her family’s farm. She regrets the choice. Laura Ann has unrealistic physical consequences that do not reflect the reality of the egg donation. She is left with a gnawing regret that is present throughout the novel and dire physical and emotion consequences. The character can definitely be characterized as a "drama queen" and the author is using her to exaggerate the side effects of egg donation for entertainment value and to make a religious point.

Laura Ann ends up giving her eggs to many women, including a single woman whose health and life is put in jeopardy by her pregnancy. A consequence of “reproductive choice”. The author makes it clear this is not what God had in mind. Does he have a direct link to god that he knows this information? I certainly would be interested to know where this link comes from? To him it's evil to bring a child into the world through egg donation. I wonder if he would feel differently if a loved one had a child from an egg donor.

I don’t think this book accurately portrays the physical and emotional impact an egg donation has on the donor and as a result I am not a fan of this book.

This book was sent to me at no cost with the request that I read and write a review. Luckily there was no condition that this review be positive, just my own personal opinion. I believe the hope was that I would enjoy reading “Nobody’s Child” and write a review to encourage others to read it as well. My recommendation is to leave it on the shelf in the store.

Positivety Practices~ 5 Ways to Stay Positive

2011-10-31T08:30:00.002-04:00

1. Reflect on Positive Past Events
Cultivating and maintaining a peaceful, calm and optimistic life must be a goal of paramount importance. Distractions and life’s distresses both small and large, most definitely including those work, financial and relationship-related, will pull you away from this goal each and every time you allow it. Your thoughts are the training ground and spring board for your overall disposition and perspective on life. Many accomplished people never pause to revel in or acknowledge their past successes. They are constantly striving for what’s next. While not entirely a bad thing, when your desire to achieve and earn becomes bigger than your desire to BE, your existence will be likened to a hamster running in an endless circle, never at peace and never at a point of rest.

2. Have a Giving Heart and Spirit

Most know that giving back to society and those in need is one of the most meaningful activities we can engage in - making us feel happy and optimistic about life. In fact, many very successful people also believe that giving is directly tied to their luck and success up ahead. Having a giving heart and spirit not only creates more opportunities for you to provide for others, but doing so allows more opportunities for your continued success to manifest in your life, and others: what impacts one impacts us all. Achievement, earnings and accomplishments come from the work of our hands and minds, but true success and fulfillment comes from giving of the heart. Not just donating your time through charitable work or financial donations, but also allocating precious time to family and friends. Being present and accessible to loved ones is the ultimate gift for others…and yourself.

3. Happy is a Choice; Contentment and Joy are Lifestyles

One of the definitions of the word overwhelmed is “to give too much of a thing.” When you truly desire to live a life that is fulfilled in all areas, you are destined to have more to do than you have the time, energy, and ability or help to accomplish or complete. The feeling of being overwhelmed is when you have what you need and are overflowing with what you want. When you have so much success, opportunity, potential, clients, projects, options, prosperity that you can’t “handle” or manage everything, your reaction is that you are overwhelmed. So what about those times when you’re overwhelmed with challenges, struggles, health issues, and other life concerns? Know the plan for your life is perfect and the struggles are never to defeat you but to make you stronger and uncover your true power. Surrender and find peace living in the overflow, joy and abundance of being overwhelmed.

4. Tap Your Inner Courage

Stepping out of your fears and into your greatness requires great courage. Sometimes we are so busy with the work of life that we don’t sit still and take the time to listen to our heart. Being courageous means not allowing life to steal, kill, or destroy your dreams, hopes, aspirations, and plans but living in the now, the moment, the presence of your power to receive life, and the fullness of all life has to offer and even more abundantly. It takes courage to be honest with yourself, acknowledge your personal truth, and be present in your quest to live that truth. Living in the fullness and joy of who you are - and want to be – takes true grit.

5. Live ExponentiallyExponential Living is achieved through excellence in your Personal, Spiritual, and Emotional health, and balance in all aspects of your life – with yourself and others. It is achieved by building and maintaining spirituality; loving and caring for yourself (hobbies, exercise, “me” time); spending quality time with and appreciating yourself and your family; recognizing your success; and living in your own truth. When living exponentially you are comfortable with who you are, separate from what you do. It’s when you live in a state of true contentment, being present with yourself and others while also pursuing and maintaining excellence in all aspects of your life.

Sheri Riley is the founder and Chief Partnership Strategist of GLUE, Inc. and creator of the Exponential Living program (www.exponentialliving.com) - a ground-breaking initiative that helps individuals create balance among life's key areas in ways that promote a higher standard of excellence.

Mississippi Initiative 26 - Personhood Amendment: What You Need To Know

2011-10-24T07:30:00.043-04:00

On Election Day, November 8, 2011, residents of Mississippi will vote on Initiative 26, a so called “Personhood Amendment” that if enacted will change how a “person” is defined in the Mississippi Constitution. The Mississippi Supreme Court ruled that the Personhood Amendment qualified for the November ballot after a petition with more than 100,000 signatures from Mississippi residents was submitted. Mississippi is now the second state, following failed votes in 2008 and 2010 in Colorado, to consider a personhood amendment.

If passed, language would be added to the Mississippi Constitution declaring that life begins “from the moment of fertilization, cloning or the functional equivalent thereof.” As a result, undeveloped embryos would be entitled to a series of protections under the Mississippi Constitution, including the right to life, liberty, and the pursuit of happiness. Simply stated, abortion in the state of Mississippi would not be permitted for any reason, including rape or incest. If “person” were defined as proposed, a woman choosing to have an abortion could be prosecuted and charged with the crime of murder. Women’s bodies, rights, and health would be subordinated to the protection of the embryo. Additionally, certain forms of birth control, such as the “morning after” pill would no longer be available and stem cell treatments for patients with Parkinson’s, Lou Gehrig’s disease and cancers like leukemia would likely be discontinued.

Supporters of the Mississippi Personhood Amendment, point to language in the majority opinion written by Justice Harry Blackmun in the landmark 1973 case of Roe v. Wade, (410 U.S. 113 ) to support their stance. Many of us can recall, and others have since learned the facts of this case which involved a single, pregnant, Texas woman, under the fictional name of Jane Roe, who challenged anti-abortion laws by stating that they violated her rights under the Constitution. Ultimately, the case was presented before the Supreme Court which decided that a fetus is not a person but "potential life," and thus does not have constitutional rights of its own. Roe’s claim was upheld and her right to privacy entitled her to an abortion.

While the Supreme Court ruling provided for abortion rights, Justice Blackmun who wrote the majority opinion noted, “The appellee (State of Texas) and certain amici [pro-lifers] argue that the fetus is a ‘person’ within the language and meaning of the Fourteenth Amendment. In support of this, they outline at length and in detail the well-known facts of fetal development. If this suggestion of personhood is established, the appellant’s case, of course, collapses, for the fetus’ right to life would then be guaranteed specifically by the Amendment.”

Supporters of Mississippi’s Personhood Amendment rely on this language to contend that during Blackmun’s time, the “well-known facts of fetal development” were a far cry from what is known today. Ultrasounds and DNA testing were not yet invented. In 1973, it was commonly believed that “life” began at “quickening,” or when a woman first felt movement of the baby in the womb somewhere between 18 to 24 weeks. Supporters argue that in 1973 technology was unable to prove that a fully human and unique individual existed at the moment of fertilization and continued to grow through various stages of development until natural death from old age. Their position is that scientific evidence has advanced tremendously, and can now establish the humanity of the pre-born child. As a result, legal protections of personhood should be restored to the pre-born child.

While the Personhood Amendment would have on obvious effect on abortion and a woman’s right to choose, there are other potential and perhaps unintended effects that could be far reaching and could tremendously impact the services performed at IVF clinics in Mississippi. Since more than one egg is harvested and fertilized to achieve a successful IVF pregnancy, making all the embryos "persons" under Mississippi law would make it difficult, if not impossible to continue offering IVF treatment within the state. When embryos are created and frozen as a part of reproductive fertility treatments, these embryos would legally be “persons” if this initiative passes, and consequently will have all the rights due persons. The problems resulting from this change would not only be many, but illogical as well.

For example, if embryos are to be defined as persons, would the freezing of embryos be considered child abuse? If one of these embryos "dies" in some part of the in vitro fertilization process, will a criminal investigation be conducted? Would physicians if faced with the choice of saving a woman's life or refusing to harm an embryo be sued for malpractice no matter what choice was made? Would stored embryos be given names (non-birth certificates)?

What about the several references to “person” currently found in Mississippi laws, which are inconsistent or incompatible with the Personhood Amendment? If passed, does it mean that embryos would have property or inheritance rights? Are Termination of Parental Rights laws applied to these embryos? Adoption laws? If more than five unrelated embryos are housed in a single building, will it have to be licensed as a child residential care home? It’s ludicrous, yet the list could go on and on.

It seems that Mississippi Initiative 26 was drafted and proposed in an attempt to revisit and challenge Mississippi’s abortion laws. These efforts have been successful in that the Personhood Amendment during the past few months has been passionately debated, spurring on pro-life speeches and challenges to women’s rights.

The Personhood Amendment has called into question not only a woman’s right to choose, but also stem cell research and treatment, and accepted infertility treatments designed to assist couples in creating and sustaining birth, which ironically is the stated goal of its proponents.
The concept that a person exists from the moment of “fertilization, cloning or the functional equivalent thereof” stems from religious beliefs. People have many different ideas and theories about when human life begins. Mississippi’s Personhood Amendment is an attempt to impose one particular theory, the theory that life begins at fertilization. But what about those who believe otherwise? Why should they be forced to accept and live by this one theory? Religious ideology is not an appropriate foundation for the law in this country. Clearly, it is possible to be personally opposed to abortion for moral or religious reasons, yet believe it is wrong to impose these values on others via legislation.

Should this Amendment pass, legal challenges from entities such as Planned Parenthood and the American Civil Liberties Union are likely to follow, and in all probability would be successful. The reason is that Mississippi’s Personhood Amendment, if enacted would affect the state’s constitution and state laws that would be in direct contradiction to the United States Supreme Court’s ruling in Roe v. Wade. Paragraph two of the United States Constitution, commonly referred to as the Supremacy Clause, establishes that the federal constitution and federal law generally trumps state laws and state constitutions.

You don’t have to necessarily like abortion to respect the right of a woman’s choice. As so aptly stated by Margaret Sanger, who founded the American Birth Control League, which later became the Planned Parenthood Federation of America, “No woman can call herself free, who does not own her own body.” It’s a fundamental concept.

Positive Tips For Breast Cancer Prevention-Don't Eat Burnt Popcorn!

2011-10-21T08:00:00.008-04:00

October is Breast Cancer Awareness Month, a time when much attention is focused on the rising incidence of breast cancer and the benefits of screening and early detection of this condition.

In the U.S. there is a large amount of fear surrounding the subject of cancer, yet the disease is more predominant in the U.S. than in other Western countries. The media perpetuates this, and the anxiety associated with cancer can wreak havoc on our immune systems. So how do we approach breast cancer awareness in a positive way, and without fear? Chicago Healers Practitioner and Holistic Physician Dr. Marilyn Mitchell, MD offers three positive perspectives to help take charge of your health and protect yourself as far as cancer is concerned:

Physical Health:
- Screen DIY first. Screening is an important aspect of breast health awareness. Begin with breast self exam (BSE), a systematic palpation of the breast performed once per month. Women often ignore their breasts, and a regular self exam can be performed with an attitude of bringing positive energy and appreciation to the breasts.

- Don’t forget your doctor. A doctor can offer you a technological breast screening, which should be scheduled every 1 to 2 years. There are several types of technological screenings for breast health:
1) Mammogram - The standard screening tool for detecting breast cancer and benign breast disease. Mammograms are able to detect masses before they are palpable.
2) Ultrasound – Helpful in imaging cysts. This device is usually an adjunct to mammogram, as it does not image solid tumors as clearly as fluid-filled ones.
3) MRI – This is sometimes used as a follow up to mammogram.
4) Thermogram - A screening exam that accesses the heat or thermal changes in the breast (reflecting blood flow). This does not involve radiation or compression of the breast. There is much interest growing around this technology, but it is not yet in widespread use, and the long term data and success at detection is not yet determined.

- Take your vitamins. Certain natural supplements and antioxidants taken on a regular basis can help the body fight off cancerous cells.

- Toss the burnt popcorn. Carcinogens are often linked to cancer, so it is important to distance oneself from carcinogens and other irritants as much as possible. That said, you can have a summer barbecue, but try not to grill out too often.

- Evaluate your risk factors. Do you have a family history of ovarian cancer? Don’t wait to find this out before it’s too late – knowing this information can help you take the necessary steps to decrease your risk of having cancer.

- Don’t forget the basics. Sleep, exercise, and a healthful diet are all building blocks for a healthy life.

Emotional Health:
- Build your support system. Strong relationships with friends and family boost the immune system and lead to a long, healthy life. These people will be there for you to rely on, both in sickness and health.
- Teamwork counts. Encourage friends and family to make healthy changes to their lifestyle as well. This will make healthy habits easier and more fun to adopt.

Spiritual Health:

- Think positively. Surrounding yourself with positive thoughts and eliminating negative thoughts can be very beneficial in eliminating stress. This will significantly affect your well-being for the better.

- Nurture yourself. Self-compassion is a key ingredient to a sound mind and body. Practice self-love by treating yourself to bubble baths, a nice book...things that make you happy.

- Limit your media intake. Overdosing on TV and sensational media can be a source of negativity and stress that you don’t need. Think about cutting down on this and replacing the time you would spend watching the news with a positive activity you enjoy.

- Be grateful. Nothing beats negative energy quite like counting your blessings. By regularly thinking about what you are grateful for in life, this will make you in good spirits which is also good for your body.

By tending to our physical, emotional, and spiritual health, we can open our heart centers to ourselves and work to lead a healthy lifestyle. If you get a diagnosis of breast cancer, be sure to build a team of support around you and a holistic plan of care. Make sure you have medical, emotional, nutritional support, as well as supportive relationships. Seek out a support group or therapist if you need it. Be sure to choose positive thought patterns to support you. Become empowered to be the leader in your health care.

Please let me know if you are interested in additional information including an interview with ChicagoHealers.com Practitioner Dr. Marilyn Mitchell MD. For more information, please visit http://www.chicagohealers.com/.

About ChicagoHealers.com

Chicago Healers (www.chicagohealers.com) is the nation’s pioneer prescreened integrative health care network, offering a comprehensive understanding of each practitioner’s services, approach, and philosophy. Our holistic health experts teach and advocate natural and empowered health and life choices through their practices, the media, educational events, and our website. With close to 200 practitioners and over 300 treatment services, Chicago Healers has provided nearly 400 free educational events for Chicagoans and has been featured in 300+ TV news programs and print publications. For more information, visit http://www.chicagohealers.com/.

Washington’s New Law: Does a Child via Egg Donation Have the Right to Know His or Her Origins?

2011-10-13T08:00:00.013-04:00

Should a child conceived through an egg or sperm donation have the legal right to obtain information and possibly meet the donor?

What about the donors? Should their identity be protected?

Recently, the state of Washington enacted legislation allowing a child, once he or she reaches the age of 18 to gain access to identifying information about their sperm or ovum donor, unless a donor signs a form requesting to remain anonymous.

Until now, complete donor anonymity has been the norm. Children conceived through assisted reproduction techniques were only given limited, non-identifying information about their donor such as eye color, hair color, height, and pertinent medical history information.

The state of Washington has adopted the position that a child has a right to know his or her origin. Implicitly, it suggests that a child’s right to this information is beneficial to their psychological well-being. Is it?

Given the current lack of legislation on the issue within the United States, Washington’s law could serve as a guideline. Do you think other states should follow their lead? What about the interests or desire of intended parents? Should they be able to prohibit their child from accessing donor information? Given these considerations, it remains to be seen how much of an impact this law will have on assisted reproduction, not only in the state of Washington, but across the country.

Attending the ASRM Meeting in Orlando? Stop by the Reproductive Possibilities Booth #2636

2011-10-09T08:30:00.012-04:00

Are you attending this years ASRM meeting in Orlando, Florida? We invite you to visit our Reproductive Possibilities and Surrogate Fund Management booth # 2636! We hope to see you there!

Surrogacy Helps Make a Family Grow by Sharon LaMothe & Tina Rella: A Melissa Brisman Book Review

2011-10-06T19:30:00.006-04:00

Sharon LaMothe and Tina Rella have composed an informative, compassionate, and ultimately, very helpful guide for young children of the generous women, who are considering or have decided to become a surrogate mother and help others build their family. Such an experience might otherwise be confusing or even seem abnormal to young children, but the authors have crafted a story which is realistic and written in a style easily grasped by young readers. The illustrations are beautifully drawn and well matched to the story line, which chronicles the surrogate’s journey from her initial decision, through the IVF process, and ultimately in her delivery of a healthy baby boy.

Surrogacy Helps Make a Family Grow answers many questions young children may have, and encourages dialogue and honest discussion with their parents. As a result, children will feel included in the process and better able to understand their mother’s amazing gift of life and its tremendous blessing upon another family. Surrogacy Helps Make a Family Grow is a valuable resource and a “must read” for parents and children embarking on the gestational surrogacy journey.

At What Age, If Ever, Are You Too Old to Parent?

2011-09-29T20:49:00.000-04:00

An ongoing case in Pennsylvania highlights certain ethical issues presented in connection with the age of intended parents. On November 19, 2003, a thirty year old gestational carrier, Danielle Bimber, gave birth to triplet boys for James Flynn, age 62 and his fiancé Eileen Donich age, 60. The triplets were conceived with Flynn’s sperm and the eggs of an anonymous donor.

After delivering the triplets, the medical center allowed Bimber to take the boys home because the staff had concerns about the couple’s lack of visits to the hospital after the birth of the triplets.

Bimber went on to seek full custody of the triplets, and an intense legal battle ensued. In 2005, the trial court granted primary custody to Bimber, but allowed Flynn liberal visitation rights and ordered him to pay child support.

In 2006, the Court of Appeals reversed this decision, and granted Flynn full parental rights, while terminating Bimber’s parental rights. The Court of Appeals reasoned that Bimber, a gestational surrogate, lacked standing to challenge Flynn’s right to parentage over his biological children. Flynn then sued the medical center claiming that they wrongly interfered with the custody of the triplets by releasing them to Bimber.

Flynn subsequently died in February 2011 making the ongoing case even more difficult for his partner, Donich – who is now pursuing the matter on her own. No date has been set for a trial.

At 60 and 62, do you think Flynn and Donich were too old to parent and care for triplets born through a surrogate?

Should state legislatures regulate the age at which one can use a surrogate? Please post your thoughts and opinions.

A Grandmother’s Battle: Surrogacy in Russia

2011-08-31T09:00:00.005-04:00

Similar to Israeli Law, Russian law permits only heterosexual couples to use the services of a surrogate mother. Before losing his battle to cancer at the age of 26, Mikhail Kelesheva saved his sperm hoping that if he recovered after chemotherapy he might still be able to start a family. After his death in 2008, his mother, Lamara Kelesheva, a Russian doctor, felt it was her “duty to fulfill his wish to have kids.” After five failed attempts to become the grandmother to Mikhail’s children, two surrogate mothers eventually became pregnant with twins. The women gave birth nearly simultaneously – on January 6 and 8, 2011. Kelesheva stated that she never expected to feel so much happiness after the death of her son.

However, Kelesheva was quickly confronted with legal troubles. The Moscow Social Registry Office declined to register the four babies on the grounds that only a heterosexual couple has the right to use surrogate mothers. Grandparents are excluded from the privilege of this law. In effect, the four children do not exist legally. Kelesheva appealed to the Moscow Municipal Court. Currently, there is no law regulating this procedure in Russia. Thus, the situation perplexes registries and courts. However, Igor Shmidt, esq., calls this situation a “mistake” and notes that “Russian laws do not restrict parenthood obtained through surrogacy. In other words, if it’s not prohibited then it’s allowed.” The situation shines a light on an area of U.S. law that is also in need of clarification. While each state differs, some state laws will leave uninformed Intended Parents in the same predicament as Kelesheva. It will be interesting to see if and on what grounds the Moscow Registry permits Kelesha to register the children.

Though individuals abroad continue to face legal, emotional and psychological difficulties in their struggles to create a family, progress is certainly being made. Whether it is progress toward equality of access to surrogate mothers in Israel, or progress concercing assisted reproduction in Russia, we are seeing technologies and the law slowly catch up to the realities of the world in which we live. Stories like the Ayash’s demonstrate that individuals with a strong enough desire to become parents are able to find hope at the end of a long journey.

Israeli Woman Becomes Mother Two Years After Her Death via Surrogacy

2011-08-23T09:00:00.003-04:00

Frozen Embryos in a Tube

As a result of the current state of Israeli law which permits only heterosexual couples to obtain surrogates mothers, homosexual couples and single individuals alike face overwhelming difficulties when it comes to finding a surrogate. An Israeli couple, Nisim Ayash and his wife Keren tried for years to create a family. The couple underwent a series of fertility treatments which resulted in the creation of embryos composed of his sperm and her ova, cryopreserved in an Israeli medical facility. Thereafter, Nisim’s wife was diagnosed with a brain tumor. When it became clear that Keren would not survive, she clearly expressed her desire that her husband use their preserved embryos after her death to conceive their genetic children with the assistance of a gestational carrier. After promising he would, Keren passed away in November of 2009 at the age of 35.

In July 2010, Nisim was awarded custody of his preserved embryos. The groundbreaking decision came after a long battle with the Ministry of Health who refused to relinquish custody of the embryos first on the basis that surrogacy was not available to Nisim in Israel and subsequently on the grounds that the embryos did not belong to Nisim. The eventual victory fills a crucial gap in recognition of rights of equality in survivor benefits and the right of a man to parenthood.

Though he succeeded in overcoming the first hurdle, Nisim was unable to convince the state that he is a member of a “former couple” and thus eligible to use a surrogate mother in Israel. Left with no other choice, Ayash looked for a carrier. With the help of Melissa Brisman, Esq., a leader in the field of reproductive law, along with her agency Reproductive Possibilities, Nisim was able to use embryos created from his own sperm and his now-deceased wife’s ova to bring their child into the world using a gestational carrier. The healthy baby boy was born in the United States in June 2011, two years after his mother’s death. He is the first Israeli to be born from a deceased woman's frozen embryos through a surrogate. The proud new father, Nisim explained, ‘When I saw the baby, I thanked God for helping me actualize Keren’s dream. I will tell him of his heroic mother and of the dream I fulfilled for her after she died.”

Do Grandparents Have the Right to Procreate?

2011-08-19T08:00:00.001-04:00

Do the parents of a 17 year girl who was injured in a car accident, and later declared brain dead have the right to harvest their daughter’s eggs?

Should her parents be allowed to fertilize her eggs and freeze any resulting embryos for a possible transfer?

Would your answer change if their daughter had expressed a desire to bear children?

Recently, these issues were presented to an

Israeli Court

, which granted the parents permission to harvest their daughter’s eggs, but did not go as far as to allow fertilization, because the parents could not prove that their teenage daughter wanted children.

One legal expert believed that had the parents established their daughter’s desire to have children, then not only should her eggs be harvested, but fertilized. According to another expert, the crucial point was not whether the daughter wanted children, but would she have wanted them to be born after her death---a question rarely considered by most of us, let alone a 17 year old girl.

In the past, Israeli courts have ruled on posthumous gamete extraction, but most, if not all of the rulings involved the harvesting of sperm post mortem.

2003 Israeli guidelines state that only a wife has an automatic right to extract sperm from a deceased husband and fertilize an egg, unless the husband, while alive clearly expressed otherwise. Parents of either deceased sons or daughters who wish to harvest eggs or sperm must obtain a court order.

While one can understand grieving parents’ motives, is it their right to create grandchildren? Should the court system be involved in the decision? Not easy questions and maybe no absolute answers. We invite you to share your thoughts.

Panel Reinstates Challenge to (NY) Laws Governing by: Brendan Pierson

2011-08-15T18:07:00.002-04:00

A unanimous state appeals panel has reinstated a lawsuit against the Department of Health brought by two couples involved in a surrogate pregnancy agreement seeking to declare parts of New York's Family Court Act and Domestic Relations law unconstitutional.


Reversing a lower court ruling in T.V. v. New York State Department of Health, 6557/09, Justices Leonard B. Austin (See Profile), Mark C. Dillon (See Profile), John M. Leventhal (See Profile) and Cheryl E. Chambers (See Profile) of the Appellate Division, Second Department, found that the plaintiffs, who were not named, had successfully made a case challenging the state laws.

The suit concerns an agreement under which one woman, referred to as the gestational mother, agreed to carry the biological child of her friend, referred to as the genetic mother, and the genetic mother's husband. The genetic mother could not carry the child because of a prior hysterectomy. The agreement was oral and there was no compensation.

When the child was born, the state Department of Health issued a birth certificate listing the gestational mother as the mother and listing no father. The gestational mother and her husband had already filed an action in Nassau County Supreme Court seeking a declaratory judgment that the biological parents were the parents.

Justice Thomas A. Adams granted their request as to the biological father, but not as to the mother, saying the court had no authority to issue an order of filiation declaring motherhood.
The plaintiffs filed an amended complaint asking the court to declare unconstitutional §§517 and 542 of the Family Court Act, which allow courts to issue orders determining the paternity, but not the maternity, of children; and Domestic Relations Law Article 8, which forbids surrogacy contracts.
The plaintiffs argued that the genetic mother's constitutional right to equal protection had been violated because while she and her husband were identically situated, he had been named as the father but she had not been named as the mother. They also argued that if the Domestic Relations Law was read to presume that the gestational mother of a child is always the mother, it would violate the biological mother's due process rights.

The Department of Health moved to dismiss, countering that under the state's public health law, the "woman who actually gives birth to the child is the mother" under all circumstances, and said that the Family Court Act does not give the court authority to issue orders granting maternity rights to someone else.

The agency argued that the Family Court Act and Domestic Relations Law did not violate the equal protection clause of the Constitution because the statutory scheme was based on biological differences between men and women. Opposing the motion to dismiss, the plaintiffs said that at the time the statutory scheme was put into effect, surrogate motherhood was not possible and that the law could therefore not be read to apply to their situation.

In January 2010, Justice Adams granted the Department of Health's motion to dismiss, ruling that the plaintiffs had failed to state a cause of action. He noted that the Legislature had failed to contemplate surrogate births and only the Legislature could do so now. He also said that "an alternative remedy exists in the form of an expedited adoption, which, notably, was capable of being completed far more expeditiously than this action."

But the Second Department panel saw the issues differently.

Writing for the court, Justice Austin noted that the legislative task force on biological ethics issues that had recommended the Domestic Relations Law provision banning surrogacy contracts had later issued a report in which it said that "if both the genetic mother and the birth mother agree, after the child is born, that the genetic mother should be recognized as the child's sole legal mother, the law should provide a mechanism for achieving that result efficiently, without the need for a formal adoption proceeding."

The panel also noted two previous cases—one in Queens Supreme Court, Arredondo v. Nodelman, 163 Misc. 2d at 758 (1994), and one in Manhattan Supreme Court, Doe v. New York City Board of Health, 5 Misc. 3d at 425 (2004)—in which the court granted parenthood to the genetic mother under nearly identical circumstances.

"The factual similarities between Arredondo and Doe, on the one hand, and the present matter, on the other, warrant the same conclusion," Justice Austin said.

"Significantly, although there is no statutory provision providing for a declaration of maternity, there is also no provision prohibiting such declaration," he said. "Furthermore, the Domestic Relations Law does not limit the parties to a formal adoption proceeding as suggested by the Supreme Court here. Instead, the Domestic Relations Law simply provides that the gestational carrier's participation in a surrogate parenting contract should not be held against her."

Justice Austin also said that adoption was not a suitable alternative remedy.

"Although adoption, the legal process by which a parent/child relationship is created where none previously existed…remains an 'alternate remedy,' to argue that the Genetic Mother was adequately protected based on this alternative underestimates the hardships of adoption," he said. "Furthermore, the Supreme Court's suggestion that adoption was a suitable course in this situation does not take into consideration that there is already a preexisting relationship, a biological link, between the Genetic Mother and her child which cannot be ignored."

He said the legality of the agreement between the two women was irrelevant because the case did not require the court to resolve any dispute over the agreement. "Moreover, given that there is no potential conflict over the custody and care of the child, the validity of the underlying contract is immaterial to this case, as the Supreme Court was not being asked to enforce such a contract," he said.

Finally, he said that the plaintiffs had successfully stated a claim challenging the constitutionality of the state law. "The issue here is not, as the Department of Health contends, whether there is a distinction between males and females in the birth process, as there most assuredly is one," he said. "Rather, the issue as framed in the amended complaint is whether there is an impermissible gender-based classification between parents after the birth of the child."

Melissa B. Brisman represented the genetic parents.

"This is a landmark ruling and a victory for reproductive rights," she said. The constitutional issues raised by her clients are now moot, she added, since the court found that the statutes would be unconstitutional if read the way the lower court read them, but not under the panel's interpretation.

Denise E. Seidelman and Nina E. Rumbold of Rumbold & Seidelman represented the gestational mother and her husband. "We are very gratified that the court agreed that there is a constitutional mandate to allow genetic mothers the same opportunity as genetic fathers to prove their parenthood," Ms. Seidelman said in a statement. "This decision will have an enormous practical and positive impact because genetic mothers of children born through surrogacy can now quickly, easily and economically obtain an order declaring their legal maternity."

Alison Nathan, special counsel to the office of the Solicitor General, and Assistant Solicitor General Sudarsana Srinivasan argued for the Department of Health.

Surrogacy Laws and Combating Discrimination in Israel

2011-08-13T14:40:00.000-04:00

On June 6, 2011, Knesset Speaker Reuven Rivlin met with leaders of the gay community for the third year in a row to celebrate Gay Pride Month. A record number of Members of the Knesset (MKs) attended the event, along with celebrities, political activists and same sex couples and their children. The meeting was met with much criticism from Haredi MKs, the most conservative sect of Orthodox Judaism. The most outspoken of this sect was Nissim Ze’ev, who stated, “I am astonished over the Knesset Speaker’s decision to host so-called gay families. I can’t understand his motive.” He went on to describe the event as “an insult to the Knesset’s honor, and an insult to Muslims and to traditional Jews...,” he claimed, “[t]heir lifestyle harms the Jewish people.” During the event, Rivlin briefly addressed the criticism, stating “the Knesset respects all of Israel’s citizens, their expressions and their lifestyles. Freedom of expression is an inalienable right. A person should be able to live however he wants, as long as he doesn’t harm others.”

Despite the controversy, the event focused on progress and equality with efforts aimed at bringing uniformity to surrogate laws as applied to same sex couples and their heterosexual counterparts. Currently the Israeli Surrogacy Law states that only a heterosexual couple can use a surrogate mother in Israel. This brings forth numerous problems for same sex couples as well as single individuals who are unable to create a family for themselves and turn to surrogacy to help them achieve their dreams of having children. While increased violence and repression of the lesbian, gay, bi-sexual and transgender communities continue abroad, the recent event demonstrates positive efforts in the direction of equal treatment of the law for all Israeli’s citizens’ access to surrogate mothers.