Baby Making: Surrogacy, Artificial Anything, Donor Anything and Test-Tube Anything

From the book, Death is No Excuse

Time for a quiz:
What’s the most important reason to make a will?
(a) You bought my book, and it scared the stuffing out of you;
(b) You’re a Libertarian, so you hate that there’s even a government in the first place, and you resent the state having anything to do with deciding who gets your stuff at your death;
(c) You’re a Commie-hater and love private property, so you recognize it’s foolish to ignore making arrangements for your property when you die;
(d) It’s the only sensible, sane thing you can do for your spouse and kids, and the rest of your family; or
(e) You’re a male, so you don’t really know who your intestate heirs are.

Yes, it’s “(e)”. You see where I’m going here: I’m sure there’s one guy, somewhere in East McKeesport, Pennsylvania or Prineville, Oregon, who took his Catholic School Sex Education seriously, and prayed himself to sleep every night until he was thirty-two and then had sex with his spouse, for the first and only time in his life, then quickly died, faithful to her. For everybody else, there’s “Surprise! I’m the child you never knew you had.” How many men in America can say, with 100% certainty, that there’s no possibility they had sex with somebody who then got pregnant, imagining the dreadful consequences of having your child and decided to go off and have that kid on her own? If you claim to be that guy, you’re lying. Or, just as likely, you’re fooling yourself—you just don’t know.

The older you are, the more likely this is you: Before the 70’s Supreme Court’s Roe v. Wade decision legalizing abortion, people tended to have these babies. Then, there’s now: Out-of-wedlock birth rates in the U.S. are approaching 50%. This statistic is a little misleading—the trend, up from 10% fifty years ago, has almost as much to do with married people having fewer kids and the decline of “shotgun weddings”, as it does with the ooops phenomenon described above. Still, for most guys, while this might not be something, it’s not nothing. It used to be that out-of-wedlock kids would have a difficult time proving paternity. The Supreme Court greenlighted heirship for these kids in 1976, and now, with advances in DNA technology, unless you, as the not-so-celibate dead guy, were cremated and there’s no lingering trace of your DNA, proof isn’t as tough anymore. 

Wait, you say: Maybe you want your family to embrace anybody who walks into the courthouse at your death and announces their claim to your property for the first time? You want them to actually give the Surprise Heir a share of the pie? Really? That hasn’t happened in any case I’ve seen in over forty years. I figure some combination of shame, uncertainty, indifference and shared suffering drives this rejection by your recognized family, because, unlike them, this Surprise! person didn’t have to suffer through a lifetime of laughing at your jokes. That Fraternity of Misery compels most families to want to keep the pie split up only among the official, long-suffering survivors.

Having a will usually addresses this problem, by listing the people to be considered your family. Bingo, you’ve written out Surprise Heirs, which the law allows you to do. This certainty is one of the most important reasons to have a will, and yet another reason to shell out the fees for that will.  

True, there are so-called, Pretermitted Heir rules that in many states can overcome the provisions of a will that spell out the members of your family. These statutes carve out a share for an out-of-wedlock child not named in the will, but they typically only operate for children born after the will is signed and when the omission can be shown to be purely an oversight—Dead Guy just didn’t know I existed, or he would have included me. But, even the operation of these laws can be overridden with a will that lists your family members by name, or by a will that says, “My Children are Winkin, Blinken and Nodd, and I expressly make no provision for any other person who may be or may claim to be a child of mine”. 

With a properly-drafted will, you get to choose whether to include surprise children; without such a well-drafted will, your intestate heirship determination can dissolve into a litigated mess over un-anticipated heirship claims by kids you never knew you had, who make an intestate claim, with no will, or contest your so-so, not well-drafted will.

This used to be the only tough question your probate lawyer had to tackle in predicting your intestate heirship, which not only determines who gets what if you have no will, but also gives notice of your probate to people who get to file a Will Contest, challenging your will. 

Not anymore.

You now have all sorts of new ways to reproduce yourself or otherwise acquire an heir and each of them creates exciting complications at death that you really ought to anticipate. Un-knotting them at death is expensive, uncertain and a screaming pain in the neck for all those involved.

Let’s start with the most complicated, which is Surrogacy. In every state of the Union, in Puerto Rico, the U.S. Virgin Islands and Guam, and even in Russia and even on the Moon, it’s illegal to purchase a baby. When you think about it, there’s good reasons for this: It’s a dangerous process, creates a black market for human flesh, encourages kidnapping, reeks of slavery and is just plain creepy. With Surrogacy, you have somebody who’s not your spouse personally incubate a baby for you, get paid for the process and then turn the baby over to you at birth.  That kid then becomes your baby.  Since it’s illegal to purchase a baby, there is one technicality: If you do this in a state where there’s no law covering the process, you may be a criminal if you go ahead and do it anyway. 

Fortunately, for gay couples and people who just can’t successfully carry a pregnancy, there are such Surrogacy laws on the books, so a Surrogate can carry your baby, get paid for her time, trouble and the risks she’s taking, then legally surrender the baby to you, to become your child. The thing is, though, this is not legal in all fifty States. And, where it’s not legal, you are essentially buying a baby when you enter into a Surrogacy arrangement, so you can be criminally prosecuted and lose the baby. You can even get in trouble in a State where it is legal but you don’t follow the rules. Other than that, what’s the big deal?  Of course, you’re not asking that question, because, if you do this wrong, screw it up legally, it’s a disaster.

Surrogacy laws require a written agreement that meets certain guidelines, and yes—sorry—you’re crazy if you don’t get a lawyer to advise you, regardless of what surrogacy agencies may tell you about just going lawyer-less and using their forms. Since the agencies charge a fee for “guiding“ you through the process (essentially a legally-valid commission), some agencies often gently discourage you from having counsel. Ignore them, get a lawyer, and then, question one needs to be: “Is this legal in the state of the surrogate’s residence?” The second question: “Is this legal in the state where we live?”, although odds are the service you use wouldn’t be operating in a no-surrogate state.

Why would a surrogacy agency ever steer you to a potential surrogate residing in a state where the process is actually or potentially criminal? 

Supply and demand.  

Surrogacy is rough on a woman—it has all the physical and psychological strains and risks of carrying your own baby, except then you have to give the child away. So, there are not a lot of folks who can do this and who want to do it, while there are lots of people who need it. This sends agencies roaming around the country, looking for anybody, anywhere, who might perform the service. In my experience, the agencies can get a little cavalier about where they find their surrogates.

You’ll Need an Armed Police Escort If You Want to Keep That Baby

Tina and her husband would like to have a baby, but due to her maternal age she keeps miscarrying. Tina’s doctor tells her that her only hope is to get a surrogate to carry that baby to term. Tina plans to go through test-tube baby conception, then have the baby carried by a surrogate. She seeks out an agency and finds the perfect surrogacy candidate—late twenties, already carried a baby of her own full term, with no complications or health problems associated with that pregnancy. And, she’s thrilled to do this for Tina.

Turns out there’s a lot of big words in that Surrogacy Agreement the agency has drawn up for Tina, so as an afterthought, she decides to get a lawyer to look at all the papers. The lawyer asks where the surrogate lives, and it’s not Tina’s home state, where surrogacy is legal, but a place Tina’s never been. The lawyer looks at the laws where the surrogate lives, and she can’t find any statute authorizing surrogacy. She calls a local lawyer in the surrogate’s home town, and says, “Gee—looks like there’s not a Surrogacy Law there.” 

“Yup,” the local lawyer says. 

“So, do they do this in your State?” Tina’s lawyer asks.

“Technically, it’s a crime here—essentially baby selling,” says the local guy.

Pause the story here. Tina should probably have looked elsewhere, right? Wrong—she’s desperate, like a lot of people going through this process.

“So, how do you get away with this?” Tina’s lawyer asks.

“Don’t quote me on this,” says local attorney, “but our States’ Attorney sort of looks the other way if the baby’s for a heterosexual couple, but he’ll prosecute everybody if it’s for a gay couple.” 

Tina’s lawyer was not crazy about the arrangement in the first place, but now she has a local lawyer telling her that they essentially only avoid criminal prosecution for going through with the surrogacy as long as the local authorities don’t get politically backed into prosecuting all surrogate baby-makers equally. Well, Tina is forty and figures this is it.

“So,” Tina’s lawyer continues, “If we decide to go through with it, how does Tina end up with the baby? I mean, the agreement’s not enforceable there, and the kid pops out of the surrogate at the hospital—don’t those hospital folks have to give the kid to the birth mom or go to jail?”

Here’s where it gets really interesting. “Yeah, in the beginning, I mean, at the hospital, sure. But, then, we have a little side agreement with the surrogate, where she and her husband (Swell—there’s a husband) agree to put the kid up for adoption right away, and we have the biological parents go to court and adopt the kid.”

“You need to adopt your own baby?” Tina’s lawyer asks, incredulous.

“Yeah, usually it works fine—there’s a lot of ‘wink-wink, nudge-nudge’ going on, but sometimes the surrogate has second thoughts and she tries to keep the child, and then it gets messy. We can usually get a court to enforce our little side contract….” Local lawyer pauses, like he’s trying to decide what to say next, “…..but last time I did one of these, the surrogate and her husband weren’t backin’ down, so we needed an armed police escort, with a state copper riding shotgun behind the parents, drivin’ ‘em all the way to the state line, just so they could keep the baby.”

Tina’s lawyer is having none of this. She arranges to find a new surrogate in Tina’s home state, rent them a place and have them reside there until that kid is safely in Tina’s arms. Yes, it’s expensive, but it seems like petty cash, compared to the costs and risks of the shotgun-escort-to-the-border adventure, described by the other Lawyer.


Still think it’s a good idea to try this without a lawyer?

And, the problem doesn’t stop with who gets to take the baby home. What about heirship and inheritance? The thing is: If you have a legally enforceable Surrogacy Agreement with everybody, including the surrogate, in a state that has a statute covering surrogacy, the baby is legally treated as the in-wedlock or otherwise legitimate child of the contracting Intended Parents for all purposes. So, along with avoiding the shotgun escort, that also makes the child the 100% legal heir of the Intended Parents

What’s the inheritance status of that child if the surrogacy deal isn’t all legally fair and square? Well, just exactly whose heir is that kid? She was born of the surrogate, and if the surrogate is married, the law in all fifty states is that babies that pop out of married women are presumed to be the legitimate children of those birth mothers. That would make the kid the heir of the surrogate and her spouse, and not the heir of you or your spouse. Without a will, you’d better not go sky diving over the weekend, because if you should die intestate while your spouse is sorting out this mess, that kid is not your heir. Once you’re dead, you can’t even fix this with adoption—dead people can’t adopt living people.

What if you live long enough to successfully adopt? That usually involves having a judge terminate the birth parents’ rights, but who exactly are the birth parents? See where this is going?

So, get a lawyer and do surrogacy right in the first place, if surrogacy is the plan.

Baby-making heirship problem number two: What about those donor components, borrowing (or buying) other peoples’ conception raw materials, eggs and sperm?

Ever since the first-timer, Loise Joy Brown, tumbled into the World in 1978, over eight million so-called “Test-Tube Babies” have been born through the process formally known as In-Vitro Fertilization, with over 60,000 in the U.S., each year. While many couples do this entirely with their own stuff, just using the process to address infertility unrelated to withering eggs and wobbly sperm, an unknown number of people use donor eggs, donor sperm, or both. What impact does that have on the parentage of the baby and its status as an heir of both parents? The reason I couch that as a question is that, with exceptions sprinkled around the Country, nobody knows the answer.

You’re thinking, Did I hear that right?

Unlike surrogacy, which could be criminal if not legally sanctioned, there’s often no law against donating eggs or sperm in a given state, so statutory regulation has not seemed like such a burning issue. As a consequence, there is generally less law and regulation on the subject. Again, whatever law there is differs, state-to-state. While much depends on whether you work through a sperm or egg bank, where the donors typically sign blanket waivers of parental rights and receive exoneration from any parental responsibilities, there are a lot of private arrangements by folks who may be a little suspicious about the quality and motives of those for-pay donors. With few exceptions, those relationships are governed by private contracts between the donors and the Intended Parents, or worse yet, by informal agreements or by nothing at all. 

With potentially wild outcomes, like the baby belonging to two entirely different families, those contracts are extremely important, so, yes, sorry again, but don’t do this without an attorney. And, the donors, too, should have an attorney, and it should not be your attorney. That’s right—with donor egg and sperm deals, you need two lawyers, or the agreement may be easily challenged later, as in later-when-you-want-to-take-your-baby-home-with-you later. Private donors can get second thoughts and want some relationship with the kid you got used to thinking of as your child. Know anybody who likes sharing their kid with a non-parent? Yeah, me neither. The only way to be certain the child that emerges from a sperm or egg donor relationship is your child and your heir is to have an air-tight contract, which is enforceable under both the law where the child is born and the law where the donors reside. 

Then, there’s the entire Conception Derby arising from stored, frozen embryos. Many folks going through Assisted Reproductive Technology produce extra embryos that are frozen for potential future use. Since the usual contract governing this practice is provided by the storage facility, it fails to address what happens between the parents if an embryo is thawed later and implanted, especially in the event of divorce or death of one of the parents. The storage facility just cares about not getting sued if the embryos are used later or destroyed, so those contracts just address who signs the embryos out of deep freeze. They’re not even thinking about whether those later-in-life popsicle children inherit from a dead biological parent. Again, get a lawyer; get a contract and change your will and trust to address all possible outcomes.

The bottom line: All the previously un-orthodox ways now available for baby-making, present issues which can seriously cloud both parental rights and the intestate heirship and will or trust beneficiary status of the resulting children. If you wander into this field without a lawyer to protect everybody involved, you may be creating more than one family with seriously fractured inheritance and custodial rights, and it will be your fault.

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