Reason #1: The intended parents are a gay couple or a single man

Surrogacy provides a path for a man without a female partner to become a biological parent.

Reason #2: The intended mother was born without a uterus

Mayer-Rokitansky-Küster-Hauser (MRKH) syndrome occurs in 1 in 4500 females. Girls and women who have MRKH are born without a uterus (or have a severely underdeveloped uterus). Women with MRKH usually have functioning ovaries and can become genetic parents through gestational surrogacy.

Reason #3: The intended mother lost her uterus in a prior pregnancy

Many intended parents already have a child, but suffer from secondary infertility after the intended mother’s uterus had to be removed due complications such as hemorrhaging after delivery. In some cases, the pregnancy complication may also have resulted in a premature delivery, and the baby may or may not have survived.

Reasons #4: The intended mother lost her uterus to cancer

Another common reason to pursue surrogacy is that the intended mother had to have her uterus removed due to cancer in that organ.

Reason #5: The intended mother has an incompetent cervix

The intended mother may have a history of premature delivery due to an incompetent cervix that is too weak to stay closed for a full term pregnancy. Again, the baby may or may not have survived. Sometimes incompetent cervix can be successfully treated with a cerclage (cervical stitch) may this treatment does not work for everyone.

Reason #6: The intended mother had prior serious pregnancy complications that are likely to happen again

Whether it’s uncontrolled gestational diabetes, preeclampsia, preterm labor, placental abruption, or another serious complication, it may be too risky for the intended mother to get pregnant again,

Reason #7: The intended mother is on medication that is unsafe during pregnancy

Many intended mothers take medication that is important for their own health but unsafe for a fetus. Examples include medications that keep cancer in remission and psychiatric medications. It may not be safe or healthy for the intended mother to stop taking her medication. Surrogacy can be the safer choice for both the intended mother and the baby.

Reason #8: The intended mother has a chronic medical condition that makes pregnancy unsafe

Perhaps the intended mother is a diabetic. Or maybe she has a heart condition. There are many medical conditions that can be aggravated by pregnancy and lead to adverse outcomes for the mother or baby. Again, surrogacy can be the safer choice.

Reason #9: The intended mother’s uterine lining does not develop properly

In some cases, a woman attempts to proceed with IVF on her own, but cannot undergo an embryo transfer because her uterine lining does not develop properly. Fertility doctors are looking for a tri-laminar (triple stripe) uterine lining of a specific depth. This uterine environment is important to allow the embryo to implant. If the woman’s uterine lining cannot develop properly–even with medication tweaks–it may be time to turn to gestational surrogacy.

Reason #10: The intended mother has damage to her uterus.

An intended mother may have scarring in her uterus that prevents an embryo from implanting. If the damage cannot be repaired, gestational surrogacy may be her only option.

Reason #11: Past history of premature delivery

Premature delivery can occur for a variety of reasons, such as premature labor that cannot be stopped. Even though the intended mother can become pregnant again, the intended parents may be terrified of having another baby in the NICU, especially if the baby was a micro-preemie.

Reason # 12: The intended parents have several failed embryo transfer attempts with good quality embryos

Sometimes infertility is unexplained. If the intended parents have tried embryo transfer using high quality embryos, but still cannot get pregnant, it may be the result of a hostile uterine environment. Gestational surrogacy allows these couples to become biological parents.

Ready to learn more about surrogacy? Contact me today to set up a free consult.

The post 12 Reasons Intended Parents Pursue Surrogacy appeared first on Law Office of Catherine Tucker PLLC.

#1: IVF Clinics are opening back up

Some fertility clinics were able to remain open throughout the pandemic, but most closed to all but the most urgent of procedures. We are now (in May 2020) in a phase where most clinics are operational, to some degree. Some are already scheduling embryo transfers, but others have put transfers off until a later phased in their re-opening plan. As intended parents, your decision to select or stay with a specific clinic may be influenced by their re-opening plan.

#2: Things will be different for surrogacy

We will continue to see social distancing models applied to the surrogacy process. Expect more time on the phone and video-conference and less time face-to-face with all the other people involved in your surrogacy journey. When an in-person meeting is unavoidable, such as for embryo transfers, expect limits on the number of people allowed in the facility as well as mandatory face masks and screening for a high fever or other symptoms.

#3 It won’t be fair

You may find as intended parents that you are excluded from participating in-person in important milestones, such as the embryo transfer, ultrasounds, and (worst of all) the birth. I’m not going to try to make you feel better about that–it just all around sucks. But it’s the reality we live in now. Your only other option is to wait it out until the pandemic is over, but I know you’ve already been waiting for years. None of this is fair. But’s it’s our new reality.

If you are going to Boston or Connecticut for your embryo transfer, be prepared for very stringent rules. Fortunately, New Hampshire has been spared the worst of the pandemic (crossing my fingers). Hopefully we will have more leeway for those parts of the surrogacy process that can take place back here in New Hampshire, such as ultrasounds and the birth.

#3 Your doctor cannot tell you all of the medical risks of surrogacy

As an attorney, I can explain the legal risks of surrogacy to my clients. Your social worker will explain the mental health risks of surrogacy to you. And normally your doctor can explain the medical risks to you. But your doctor cannot fully do that now because we just don’t know what those risks are. So intended parents and surrogates are left in the terrible predicament of proceeding with the unknown or waiting.

As a side note, surrogacy contracts usually require you to accept all risks-whether known or unknown. This means the surrogate accepts the unknown risks of COVID-19 to herself, and the intended parents accept the unknown risks to the baby.

#5: Location matters even more now

Your selection of a fertility clinic may be influenced more by location than ever before. We used to think in terms of the hassle and expense of travel when working with out-of-state IVF clinics. These would be balanced against factors such as affordability and success rates. Now, we have to factor in the prevalence of COVID-19 in a given location also.

Would you be OK with your surrogate traveling from New Hampshire to Massachusetts right now? Or are you more comfortable with a Maine medical center? What about Vermont?

As a surrogate, would you be comfortable getting on a cross-country flight right now? Or do you need a fertility clinic within driving distance? These are some of the new things we have to think about in the COVID-19 era.

#6 Surrogacy agencies are operating

Some good news in all this is that many surrogacy agencies (including New England Surrogacy) are still operating. Operations have moved to more virtual though. This means you can expect video-conference match meetings, instead of in-person, for example. And you probably cannot just stop by the surrogacy agency’s office to say “hello” or to show off your new baby.

#7 Legal contracts

The good news is that the legal contract process hasn’t really changed at all. Most of us surrogacy attorneys are used to working with clients remotely because many of our clients are not local to us anyway. We already know how to do everything remotely. So transitioning to contactless contracts has gone pretty smoothly.

#8 Mother may I?

If your surrogacy contract was written before the pandemic, chances are it did not specifically reference your obligations as a surrogate in the case of a deadly pandemic. However, your contract should contain expectations about your behavior, in general, and most also contain a force majeure clause (fancy legal term for what happens in a dire unpredictable emergency). In addition, many (most?) states have issued emergency orders to guide the conduct of residents and visitors during this emergency. In New Hampshire, these emergency orders are issued by the Governor, although this may vary from state to state.

So read your contract, check out your state’s emergency orders, talk to your doctor, and touch base with your lawyer to find out what your obligations are during your pregnancy.

#9 Courts are semi-closed

While the Circuit Court in New Hampshire is still operating, the courthouses are themselves closed to the public. The only exception is for emergency matters. Surrogacy related matters are not on the list of matters that the courts have designated as emergencies. So you should assume that the court process will be done in the normal course of business.

While, under the law, the courts have 30 days to process a New Hampshire parentage petition, the reality is that right now these deadlines may not be met. Expect the court process to take longer than we wish it would. And keep in mind that I cannot just walk into the courthouse to chat with the clerk or get a copy of your parentage order–I have to do everything by mail.

There may be rare situations where your case can be designated as an emergency requiring immediate processing, such as if your baby is very ill. This is something to talk about with your lawyer.

#10 No room at the inn

Update: Beginning June 5, 2020, short-term lodging is once again open to the public pursuant to Stay at Home 2.0. Out-of-state guests will need to self-quarantine at home before checking-in to the hotel, motel, Air BnB. or other short-term lodging. Be prepared to attest to the fact of your quarantine during the check-in process. Once additional piece of good news: reservations can now be made online.

Some states have placed restrictions on the rental of hotel rooms and other short-term lodging, such as Air BnB’s. In New Hampshire, specifically, Governor Sununu has issued Executive Order #27 which restricts lodging rentals to essential workers and vulnerable populations. The order also places restrictions on the manner of making a reservation–intended parents will need to call the hotel directly to reserve a room. Expect the process of making a room reservation to be more complicated than in the past, so please get your reservations in order well in advance. You should also be aware of Governor Sununu’s request that individuals coming in from out-of-state quarantine for 14 days, so keep that in mind when making travel plans.

#11 At the hospital

I said it before, but it bears repeating–intended parents need to be prepared that they won’t be allowed into the hospital for the birth. And there may be nothing anyone can do about it. So let’s talk about the things you can control.

All intended parents need to have their parentage established in some manner. Depending on the situation, this can take place in the form of a legal contract, parentage order, pre-birth order, affidavit of paternity, post-birth order, or adoption (phew–that’s a lot of options!). It’s important to understand whether your parentage is being established before or after the birth. Your lawyer can explain to you how it is being done in your case.

If your parentage is established before the birth, you are entitled to make all medical and other decisions for your child immediately after the birth. This is because you are the legal parent. These decisions include things such as naming the child, deciding whether your child will have formula or breast milk (if your surrogate is willing to pump), consenting to vaccinations, deciding on circumcision for a boy baby, and so forth. Even if you are not allowed in the hospital (and be prepared that you won’t be), the doctors and nurses should be communicating with you about your baby. And the baby should be discharged directly to you when he/she is ready to go home.

If your parentage will be established after the birth (and there are legitimate reasons to do this in some cases), then it gets more complicated so you should definitely discuss that with your lawyer.

#12 Hurry up & wait

It’s not just the courts that are processing things slowly. Gone is the time I could walk into Vital Records and get a copy of your baby’s birth certificate and then walk over to the Secretary of State’s Office to get an apostille placed on it. Now, I have to mail in a request to Vital Records, and then wait (and wait and wait) for the birth certificate to arrive. Then I mail the birth certificate to the Secretary of State’s Office and wait some more. Finally, I get the final birth certificate back in the mail. While I know our government employees and mail carriers are working diligently to get things done, the process itself is going to take longer.

The good news is the domestic intended parents usually don’t need a birth certificate right away. International intended parents, however, will need the birth certificate to get baby’s passport–you should be prepared to spend more time in New Hampshire than originally anticipated.

#13 International travel woes

For international intended parents, surrogacy has gotten a lot more complicated, with the many issues surrounding visas and passports. Expect difficulty in getting into the United States for the birth, and expect difficulty in leaving the United States with the baby. My colleague Rich Vaughn has written more about the logistical hurdles for international intended parents. Bottom line is international intended parents need a backup plan. And a backup to the backup plan. At the very least, plan on spending more time in the United States than previously expected.

For surrogates who are not yet matched, now is the time to think about whether you are wiling to work with international intended parents, given the extra hurdles involved. It’s OK to tell your agency that you prefer to match with domestic intended parents.

#14 Egg Donation

If you are pursuing surrogacy with donated eggs, you may find that your fertility clinic will not allow your selected donor to undergo a fresh cycle. The reason is that they don’t want to expose the donor to the risks of contracting COVID-19 in the process. Your only option may be to use a frozen egg bank, which poses no additional risks to the donor since her part of the process is already complete.

I just want to add that this information is current at the time I wrote it. Things are rapidly changing so it’s best to check for current updates on the situation here in New Hampshire.

Ready to move forward as an intended parent or surrogate? Contact me today for a free consult.

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What’s SB279 and how does it apply to surrogacy in New Hampshire?

SB279 is a law that takes effect on January 1, 2020. This new law can be found at New Hampshire RSA 417-F. Beginning on January 1st, most employer-provided health insurance plans must cover infertility diagnosis, fertility treatment, and fertility preservation. So intended mothers facing a cancer diagnosis will have insurance coverage to freeze their eggs for later use with a surrogate. Intended mothers also have coverage for making the embryos that will be used with a gestational surrogate. This includes making embryos from donor eggs.

What’s not covered by the new infertility insurance law in New Hampshire?

Embryo transfers to gestational carriers are not covered under the intended mother’s health insurance. The law does not require coverage of any part of the transfer process such as screening of the gestational carrier, medications for the gestational carrier, the embryo transfer procedure itself, or the follow-up blood work and ultrasounds. Two pieces of good news here: First, insurance companies can choose to optionally cover these procedures. And, second, the gestational carrier’s own insurance might cover the early pregnancy blood work and ultrasounds, so be sure to investigate that before paying cash for those appointments.

What types of health plans have to follow the new infertility insurance law?

The law, NH RSA 417-F, applies to group insurance plans only. This would be the type of insurance you get through your employer. So the law does not apply to individual health insurance plans, such as health insurance purchased from the marketplace. The reason is that the individual insurance market is very fragile at this time and it would be difficult to implement this type of mandate on the individual market. SHOP plans and extended transition plans are also not covered by the law. Finally, the law does not apply to “self-funded” plans obtained through an employer. The reason is that federal laws do not permit the state of New Hampshire to impose requirements upon self-funded plans.

How do I know if I have a self-funded health plan at work?

Ask Human Resources. Self-funded plans are particularly common among large employers. If it turns out your health plan is self-funded, then ask HR to match the benefits offered by the state insurance law. Self-funded employers make their own decisions on what is covered under their health plan. So they can choose to include infertility-related benefits. Fertility Within Reach is a non-profit with some great resources on how to approach your employer. In fact, Fertility Within Reach was a partner with RESOLVE New England in promoting the passage of SB279 into law.

I confirmed that I’m entitled to insurance coverage for making embryos via IVF with an egg donor. We will later transfer these embryos to a gestational carrier. What kinds of expenses will be covered by insurance? And what will I have to pay out-of-pocket?

The insurance coverage is for medical expenses only. This includes your donor’s medical costs associated with screening, medications, monitoring, and egg retrieval. Following the retrieval, medical expenses associated with fertilization, embryo culture, and cryopreservation would be covered. Any non-medical costs are your responsibility. This includes the donor agency fee, the donor’s compensation, legal costs for your donor contract, and
travel expenses for the donor. In addition, expect to pay for storage of your embryos. Some insurance policies or IVF clinics might cover short-term storage of your embryos at the IVF clinic, but expect to pay out-of-pocket for long-term storage. Also expect to pay out-of-pocket for transfer related costs if you are using a surrogate.

We are a gay couple pursuing surrogacy. Does the new infertility insurance law apply to us?

The law applies to both male and female infertility. Gay men can be infertile just the same as straight men. In fact, 1/3 of all infertility is due to male factors. Low sperm count, poor motility, chromosomal issues, and other types of male infertility can be found among gay men. When you go in for your consult with your RE (the reproductive endocrinologist), you will find out if you (or your husband) have male infertility. With a diagnosis of male infertility, you are entitled to benefits under the law to treat your infertility. Depending on your diagnosis, the appropriate treatment may be making embryos via IVF. One thing to be aware of is that you will be responsible for the costs of obtaining eggs, whether you use a known or anonymous egg donor.

I think I’m entitled to receive insurance coverage for making embryos via IVF, but the insurance company has denied the request to preapprove my cycle. What can I do?

Your options include an insurance appeal. There are time limits for insurance appeals, so don’t delay because you could miss important deadlines. Contact me to learn more about pursuing an insurance appeal for a denial of infertility benefits.

I lost my uterus following a hemorrhage after delivering my first child. My OB/GYN saved my life by removing my uterus. Our only option to have another child is surrogacy–thankfully I still have both of my ovaries. My insurance company is refusing to pay for IVF to retrieve my eggs, claiming that I was “voluntarily sterilized”. Is insurance supposed to cover me since my sterilizations wasn’t really “voluntary”?

This one’s a little more complicated. The law does exclude coverage for “reversal of voluntary sterilization” but that doesn’t seem to quite fit your situation, does it? I recommend we talk more about this over the phone. Contact me to schedule a time for a free phone consult.

What about prenatal care for my surrogate? Will this be covered by health insurance?

Prenatal care, or maternity care, benefits are provided by many insurance companies in New Hampshire for surrogate pregnancies. This is not part of the infertility benefits covered by RSA 417-G. Instead, maternity care benefits would come from the surrogate’s own health insurance. The best way to find out if maternity benefits are available is through a specialized surrogacy insurance review. As part of my services to surrogacy clients, I will help you arrange for this type of review.

I’m a single intended parent planning to pursue surrogacy? Does this insurance law help me?

If you have a medical cause of infertility (which can happen in either men or women), you are entitled to benefits under this law.

I live in Maine, but work across the border in New Hampshire. Do the insurance requirements apply to me?

If your employer has a New Hampshire insurance policy, then the requirements of the law apply to you, even if you don’t live in New Hampshire. Companies often buy insurance through their headquarters, so your plan may be based out of a different state entirely. The best way to find out is to ask Human Resources.

My husband and I have 5 PGS-tested frozen embryos in storage, while we get the funds together to pursue surrogacy in the next couple of years. Are our embryo storage costs covered under the bill?

Unfortunately, no. However, your insurance company may voluntarily choose to pay for storage even without the requirement in place.

I saw a news story about a woman who donated her uterus to another woman, and the recipient became pregnant. Are uterus transplants covered under this bill?

No. At this time, uterus transplants are experimental. Insurance companies don’t have to pay for experimental treatments. This exclusion is not unique to infertility–most experimental treatments, in all areas of medicine, are not covered by insurance.

Do you have more questions about surrogacy and health insurance in New Hampshire? Reach out to me to schedule a free consult.

Do you have non-surrogacy related questions about the infertility insurance law? Check out these FAQs over at the website of New Hampshire Fertility Law.

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From a legal perspective, we use the saying “bad facts make bad law”.  And it couldn’t be more true than in this case.

The Court determined that the gestational carrier (the surrogate) was not a biological parent of the child and thus had no standing as a parent.  The Court found that the genetic father was the only biological and legal parent of the child.  Sounds good, right?

Well hold on a second–in doing so, the Court adopted an extremely narrow definition of biological, determining that it only referred to genetic parents.

There are many circumstances where a woman could be in the exact same biological position as a gestational surrogate but where it would be incredibly unfair to fail to recognize the mother-child legal connection.  A woman who has every intention of parenting could become pregnant from donated eggs, from her female partner’s eggs (“reciprocal IVF”), or from a donated embryo.  Each of these situations arises from the same medical and biological mechanisms as gestational surrogacy.  In each of these situations, the mother would not have a genetic link to the child.  It is these legal relationships that the Iowa Supreme Court has put at risk because there is only a gestational relationship with the child.  And apparently, in Iowa, gestational isn’t good enough.

And it’s only a matter of time (probably not much time) before an angry spouse pulls the “you’re not the real mom” card during a contentious divorce.  Would a divorce court feel compelled to adopt the narrow definition of “biological” that the Iowa Supreme Court just created, thus taking a child away from the only mother he’s ever known.  The Iowa Supreme Court’s ruling certainly opens up this possibility.

The solution is simple–ignore genetics.  Allow the intended parents in a surrogacy arrangement to become the legal parents irrespective of genetics.  This is how we handled things here in New Hampshire.  Let this Intended Mother become a legal parent via the surrogacy route even though her egg was not used.  Enforcing a surrogacy agreement, but only for a genetic parent, creates a second class category of parents via surrogacy.  Let’s talk about some scenarios where this could be a problem:

It opens the door for the genetic parent to wield the opportunity to adopt the child over the non-genetic parent’s head.  Not a good situation for the kid involved.

For gay male parents, the surrogacy process often results in a set of twins, once genetically related to each dad.  In Iowa, these kids would have different legal parents.  If the dads split up, the custody of the twins would also be split up.  And that’s not a good thing for the kids.

And what about a gestational surrogacy case involving both donated sperm and donated eggs?  Under the Court’s rationale, that child would have no legal parents at all.

It just simply doesn’t make sense.  And that’s never good for the kids involved.

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Ready to talk about surrogacy in New Hampshire? Get in touch now for your free consult.

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