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Assisted Reproductive Technology (ART) 101

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Assisted Reproductive Technology (ART) 101

Assisted Reproductive Technology (ART) law involves complex and sensitive issues that prompt a number of drafting concerns for attorneys. In this program, Colleen Marea Quinn guides attorneys through the important and fundamental considerations surrounding ART law and basic ART contract drafting. First, Ms. Quinn covers the basics of family formation through ART and relevant medical terms. Then she addresses drafting pre-requisites and what information must be gathered prior to contract drafting as well as useful resources. Next she provides an extensive road map that incorporates specific structural techniques to help demystify the ART contract. Finally, Ms. Quinn provides an overview of necessary contract provisions covering everything from pre-screening, physical exams & psychological evaluations, and payment methods to labor notification, breaches and remedies. Do not miss this introduction to ART law and the fundamentals of ART contract drafting.

Presenters

Colleen Quinn
Owner
Quinn Law Centers

Transcript

Jillian Kuehl -  Hello, and welcome to Quimbee CLE. My name is Jillian Kuehl, and I'm a program attorney here at Quimbee. Today, I have the pleasure of welcoming attorney Colleen Quinn, who will be speaking with us today about assisted reproductive technology law, or ART law. Colleen is the owner of Quinn Law Centers, including the Adoption and Surrogacy Law Center. Her practice centers on employment law, personal injury, family formation law, both adoption and surrogacy, and estate planning. Colleen is the co-author of the Virginia "Adoption Procedures and Forms" book, produced by Virginia CLE, which includes a chapter on Virginia ART law written by Colleen. She regularly teaches courses on assisted reproductive technology law and contract drafting. So, we could not have found a more qualified presenter today, and we are so happy to have you here with us. Welcome, Colleen.

Colleen Quinn - Thank you, Jillian. I'm so happy to be here.

Jillian Kuehl - Great. So, Colleen, why don't you go ahead and just give us a little bit of an overview of what we plan to cover today.

Colleen Quinn - Great. So, Jillian, assisted reproductive technology law, which we fondly call ART law as you referenced, it's not something we hang on the wall, but it has a lot of acronyms.

So, one of the things that we will cover is the terminology and the different types of ART that are used in this area of the law. We're also gonna cover the prerequisites prior to contract drafting, then we're gonna talk about contract drafting basics, and important provisions to include in all of the ART contracts. We're gonna address some of the more important legal issues such as abortion and selective reduction provisions, choice of law and conflict of law issues, and also even divorce and frozen embryos. And we're also gonna look at some unique issues, like some issues unique to international intended parents, single parents, same sex couples, and unmarried couples as well. So, I'm excited to dive on in.

Jillian Kuehl - Great.

Colleen Quinn - So, one thing that folks need to know, and this is one reason why I absolutely love this area of the law, is that ART law is a constantly evolving area of the law. So, you really have to stay on top of some of the medical aspects. It's most closely tied to adoption law because we're helping people have children and build their families, but it's more largely rooted in contract law, which is why a lot of the presentation's gonna be discussing contract terms. And people tend to utilize ART or adoption due to infertility issues in many ways. And their goal is to have a child or children to parent. They've often undergone a lot of unsuccessful attempts to get pregnant. They might have viable eggs. They might have gestational ability. The dads might have viable sperm, but things just aren't working out for them. A lot of them have spent a lot of money on infertility treatments. Some of them have really undergone a lot of hardship, various miscarriages. And so, it's an area of the law where you can really feel like you can help people in their family building, and it's a rewarding area of the law in that regard. But you're also dealing with people that oftentimes are fragile in some ways. So, it's an area where we have to be very compassionate too. And then of course, there are lots of frozen embryos in storage non that aren't gonna be used by their owners. And so, we're seeing folks that are doing embryo donation agreements and then re-donations, et cetera.

So, it gets complicated in certain areas of the law. When we look at the number of embryos that are in storage, they really don't fully know. We anticipate there's at least 1 million, if not more, of embryos now in storage. It's really hard to get good data and good numbers, but the more embryos that keep getting created, the more excess embryos are tend to be. And all of these embryos, in some ways they like to find a womb somewhere. We like to find a womb for them. So, when we talk about the world of family creation options, there are a lot of different combinations that can be put together. So, a couple could use donor egg and they can choose for it to be known. Like, they can pick the woman and have the eggs retrieved from her, or they can decide to go anonymously through a cryobank. And they can also now purchase bank eggs that are already in storage, which tends to be less expensive than picking a live donor who you have to retrieve from. Also, most historically, the use of donor sperm has been used, and traditionally more anonymously used through cryobanks, but we are seeing a lot of known donor agreements as well. I mentioned already the donated embryo situation, again, that could be known, or it could be anonymous. Anonymous ones are a little trickier.

And then, of course there's the use of a gestational carrier or a traditional surrogate. And so, a gestational carrier can be used and she might carry intended mom's egg and donor sperm, or intended mom's egg and intended dad sperm. An embryo created from both intended parents. Or she might carry an embryo that has donor egg and intended dad sperm, or she might carry a donated embryo that has no connection to the intended parents. And then traditional surrogates, they are ones that actually are genetic parents themselves.

So, a traditional or true surrogate would use their own egg. And that could be with the intended dad sperm or with donor sperm as well. So, we have a lot of these different combinations that are going on at any given period of time. So, when we look at these combinations, race doesn't really matter. We could have a White gestational carrier carrying for an Asian couple. We could have an African-American carrier carrying for a Caucasian couple or vice versa, Caucasian carrier for African-American couple. That doesn't really matter. What does tend to matter a little bit more is religion. And we'll talk about abortion selection, selective reduction views a little bit later. But this does create this issue of parody.

And I do have a little cartoon in the slides where the one sibling is saying to the other, "I'm their real child, and you're just a frozen embryo thingy they bought from some laboratory." So, it does start to create unique issues for parody, and a child that might be born from donor parents versus a child that's fully genetic from that family. And we do see people with secondary infertility. So, it might be that the second child they have is not a child that's completely genetically related to both of the intended parents. That creates some unique issues with making sure these, we go by back to the adoption field, where if a family has a genetic child and then adopts another child, making sure that the adopted child feels equally part of, fully part of that family, we're encountering some of the same issues.

Jillian Kuehl - That's very interesting. So, I guess, back to kind of some of the agreements that you were mentioning. I guess, what are the most common agreements that are involved in this type of law? And then what would be the role of the lawyer here?

Colleen Quinn - Great. Yeah, so, it's really nice because lawyers get to do a variety of things in this area. And we've got a lot of different ways in which we can be involved. Of course, an egg donor agreement where the egg donor is donating to the intended parents or the clinic, and the majority of egg banks and clinics will require a direct donor agreement, even when it's anonymous. And so, we can do direct donor agreements and maintain anonymity. And that's really important in terms of reporting back provisions, whether the donor's gonna register on any national or state or other registries, whether the child will ever get to meet the donor. So, it's really much better to have a direct donor agreement than it is for the donor just to sign a release to the clinic. Same thing, sperm donor agreements. Oftentimes, with sperm donors, they will do sign a release to the clinic, but again, the direct donor agreements are better.

And then, of course, where the donor is known, we wanna clearly have a donor agreement. There's a case in Virginia, the Baldwin case out of Roanoke that went up to the Virginia Court of Appeals. They did not have a sperm donor agreement. They used a turkey baster. The woman thought that the donor was gonna be just a donor, but the court determined that they had no agreement in place, and that a turkey baster was not a intervening medical technology and was instead a kitchen instrument. And so, sperm donor agreements, especially between known folks is critical. We also have embryo donation agreements. And I mentioned now that we're seeing re-donations and we're seeing donations to multiple families. So, that's gotten really complicated. Of course, we have gestational and gestational carrier. Excuse me, we have gestational carrier and surrogacy agreements. And then there are the agreements with the fertility clinics, and that could include informed consents, financial agreements, embryo preservation agreements that are signed with the clinic. And then we also see agreements as between the two parents creating the embryo, and embryo disposition agreement as between the two of them, should they divorce or one of them die, et cetera. So, lots of different agreements in this area of practice.

And of course, then there are different roles for the attorney. It could be that the attorney is simply reviewing the agreement on behalf of a party, including reviewing the fertility clinic contracts on behalf of somebody. It could be that they're negotiating the agreement. It could be that they're drafting and negotiating the agreement. And then we also have a whole process of handling the parentage process, including getting the new birth certificate or the birth certificate that names the intended parents. We might have to get a pre or post order, or we might have to do another court or governmental proceeding to resolve parentage issues. So, lots of ways in which lawyers can be involved in these cases. One thing that we wanna really be careful of too is not practicing law in a state in which we're not licensed and also watching out for dual representation. Those are two areas where lawyers can get into trouble, practicing the unlawful practice of law, because you're practicing law in a state where you are not licensed.

And then also, the American Society for Reproductive Medicine, the Academy of Adoption and Assisted Reproduction Attorneys of which I'm a fellow and have been a past, I'm a past president. Their Ethics Code, the ABA Model Act, all of those require that be separate representation as between the intended parents and the carrier, or between the receiving parents and the donor. And so, we wanna make sure that we do have separate representation and that you're not trying to represent two parties that could be a potential conflict with each other at some point. We do wanna look out for states too, that forbid compensated surrogacy. Michigan is a problematic one, and there are a couple of other states where you can run into some hiccups. So, we do wanna make sure that we are looking at the state law. We're making sure we're mapping things out for folks, and that they're not involving a state which might cause issues with regard to the enforceability.

By way of example, I have a client recently who had her, she's a single mom. She had her child via sperm donation sometime ago. The child's like 10 years old now. She's due to get a big inheritance from her father, that would then flow to this child. And she was concerned rightly so about whether the sperm donor could potentially inherit from the child, should the child inherit and then the child die. And we looked at the fact that her release that was signed at the clinic in Georgia is not based in any sound Georgia law. Georgia does not have a clear donor statute or a supreme court decision that says that a donor is not a parent. And so, that's very concerning. And so, we needed to address in the state documents, specifically disinheriting, not allowing the sperm donor to ever take because of the problematic release. And so, I was a little bit surprised when we discovered that we didn't have clear cut law in that regard with regard to the sperm donor release. So, I do have a colleague, Diane Henson. She keeps a summary of the surrogacy laws on her website. It's Creative Family Connections, and I've given the link.

However, and I know some other organizations that are trying to put together surrogacy maps or summaries of the surrogacy laws, but these are constantly changing. They really are. And so, we keep a having states that are passing new surrogacy statutes, things that are evolving. I've got another change to Virginia surrogacy statute that's in process in legislation. And we did a lot of changes back in 2019 with Virginia surrogacy statute. So, you want to always check with local experience council. Also, it may be that you think you know a statute, like, Virginia statute is very hard to read. It looks like there's a pre-birth order process, but that's not true. There's a process where you can get a court to bless your contract before you even do an embryo transfer. Well, we pretty much ignore that entire part of the code, and we look at it, so it's not just the changing law, it's also not fully comprehending or understanding how the law works in practice, which is why we really wanna check with folks in that particular jurisdiction that really know what they're doing whenever we're working across borders.

Jillian Kuehl - Absolutely, it sounds like you really wanna make sure, you know, that you're working with people who know what they're doing. And kind of going back to something you said earlier in there, there's a lot of terminology that's used in ART law. And so, can we kind of dive into that now? Like, what is the most commonly used terminology? And is it used, I guess, across the board, you know, if you're in one state or another?

Colleen Quinn - Yeah, so, the terms I'm gonna give over are pretty much uniformly used. I'm gonna keep it to the pretty basic terms. This whole area of ART law is kind of an alphabet soup of different terms out there, or terms of ART, so to speak. So, the first one is the term ART itself. It's just a reproductive technology. And it basically refers to all fertility treatment in which eggs and sperm are handled outside the body. And the purpose, of course, is to facilitate the conception of a child. AI is Artificial Insemination. It means the female's artificially inseminated, meaning the sperm is injected via some artificial means, and hopefully, not a turkey baster. So, even with our lesbian couples using a known sperm donor, we will define in the sperm donor agreement that the use of a home insemination kit purchased through the drug store will be deemed to be an intervening medical technology for purposes of Virginia's statute. And so, it's really important that we look at how artificial insemination is defined state to state. There's also something called intrauterine insemination, IUI, this has a slight technical distinction, but it's essentially a subset of artificial insemination in that regard. I wanna make sure that people are not doing it the big chill way.

So, I do have a slide in the pictorials on AI versus IUI, which gets down in the weeds. And so, if folks wanna refer to that, they can refer to that, but I'm not gonna read that whole slide just in the interest of time. So, the other big term is IVF, in vitro fertilization. This is basically, loosely the test tube baby, okay? So, the ovaries are medically hyperstimulated and the eggs are surgically retrieved, or bank aid might be used. And then the sperm is used to fertile the egg and then that results in the embryo. And then we have an ET, which is embryo transfer procedure, which is transferring that formed embryo into the uterus. That might not happen right away because we might freeze those embryos and then do some genetic testing on them. There are some doctors that will do what's called a fresh transfer. That's very difficult to achieve because you have to time the lining of the person donating or contributing the eggs so that you have the perfect spot where they're on medications, where you can retrieve the eggs, and then you have to time the lining of the recipient that's gonna have the embryo transfer. You have to retrieve the eggs. You have to fertilize the eggs. You have to grow them to a certain blastocyst size. And then you have to take it at the perfect time and put it into that plump lining of the recipient carrier. And one of the doctors I work with pretty regularly, he says that to try to time that is like trying to land a fighter on an aircraft area in the middle of a hurricane. So, a lot of doctors tend to prefer to work with freezing the embryos and then thawing them at the time of transfer.

So, a term we loosely use is eggs. You're a lawyer, I'm a lawyer. When you say, you could say cat, instead of feline, it's kind of easy use basic terms. But they are sometimes called oocytes, or ovum, or ova, but they are the unfertilized female gametes. And it really is just easiest to call them eggs. Sperm, of course, pretty much people are familiar with the term sperm. Sometimes it's referred to as semen. There's a difference between ejaculate sperm and testicular sperm. My husband, he's always like, "You just throw these words around." I'm like, "Well, it's part of practicing this area of law." There is some debate about which is better, but in this area of the law, one of the things I do tell clients pretty frequently right off the bat. And I will just say, you all, you need to go get your sperm checked. But they do need to get their sperm checked for its motility and sperm count, et cetera, to make sure that they've got viable sperm, if their sperm is gonna be used in the process. So, there's this neat little thing called ICSI, I-C-S-I. It's intracytoplasmic sperm injection. And in the lab, it's inserting one sperm into the nucleus of an egg in the hopes of achieving that fertilization. And it's kind of revolutionized the treatment of male infertility. And it allows men with low sperm motility or sperm counts to achieve a child.

There's a lot of debate about is that messing with nature? Is it messing with Darwinian theory? Are we now not allowing the survival of the fittest? You're kind of reminded of the movie, "Everything I Wanted to Know About Sex," was Woody Allen and the sperm room guys jumping out of the airplane. And like, who's gonna get there first, you know. So, there is a lot of debate about, are we messing with nature and not allowing the best man to get there first. But it has revolutionized the area of ART to allow the embryo to be developed. And in the materials, I do have a little slide that actually shows that ICSI process under the microscope. One of my docs did tell me that they have to lock the poor little guys, these poor little sperms tail off at the end to prevent it from going too far into the nucleus, which I didn't know, which was kind of a little funny fact to find out, lopping the poor little guys' tail up. Woody Allen would've loved putting that into that movie too much.

Jillian Kuehl - Oh, no question.

Colleen Quinn - So, donor conception refers just to conception via donor parts, which can be donor egg, donor sperm, donor embryo, and then banked eggs and embryos tend to be less expensive than eggs that need to be retrieved, as I mentioned before, or embryos that still need to be formed. And so, let's see here. Got a couple more. I'm gonna skip this slide on GIFT versus ZIFT versus PROST. It just talks about the different intra fallopian transfers that are about out there. It's very getting down in the weeds in terms of the medical differences. And if folks are interested, they can read that slide, but just recognize those terms refer to slightly different types of procedures.

A big term that's used, cryopreservation. You can also also just say freezing. Freezing for storage. And in ART, we have sperm embryos, eggs now that are all being frozen successfully, even ovarian tissue being frozen. And we typically say that they are frozen or cryopreserved. I've got a cute little cartoon in there where the doctors in the cryogenic freezing lab are looking all around. And it says, "As usual, they forgot where they put the ice pops up." So, you do have these little machines though. They're not very big. They look like a crockpot that will tend to have very teeny tiny straws of the embryos placed in them for cryopreservation. In surrogacy, that we use the term loosely. Like, we just say surrogate or surrogacy to refer to the general concept of one woman carrying for another.

But we do make a distinction between a traditional or true surrogate who uses her own egg and is a genetic parent or genetic mother, versus a gestational carrier who was more of a vessel. So, a gestational carrier would not be genetically related to the child. She would use either the intended parents' parts or their parts with donor parts or even donor embryo. But it's important to make the distinction between a gestational carrier, sometimes referred to as a gestational surrogate, which makes it more confusing, versus a true or traditional surrogate, especially because in a lot of states, a true or traditional surrogate in some cases can void the arrangement or have the ability to keep the child. Virginia's one of those where our statue say a traditional or a true surrogate does have that ability up until about the sixth month of pregnancy to void the arrangement and keep the child. There are repercussions for that, however. There's still the recognition that if she's the genetic parent, that there's a difference there. All right. Think I covered all of the terms, at least before.

Jillian Kuehl - It sounds like there are lots of terms and lots of options now, when it comes to ART law. And then when it comes to accessibility, I guess, what do these types of procedures typically cost?

Colleen Quinn - So, IVF, which we talked about, in vitro fertilization, which is that creation of the embryo and the embryo transfer can generally run 10,000 to 30,000. And that varies all over the country. And that does not include storage costs. Sometimes there might be a package deal that we will do X number of embryo transfer procedures up to a certain amount. And other times it's just per embryo transfer procedure and per retrieval and creation of the embryos. So, there's a lot of regional variation on the pricing. Donor egg, usually about eight to 15,000 is paid to the donor. If she is actually being recruited and having her eggs retrieved. You can get banked egg for less. And again, banked eggs sometimes comes in like, packages. If you need to buy three at a time, or five at a time, depending on how many banked eggs are available from that particular donor. The carrier, it varies again, all over the board. You can have what's called a quasi compassionate carrier who's paid only like 10 to 15,000 over the course of 10 months. We kind of call this their base. But usually, a paid carrier is going to have a minimum of at least 20,000. And that can range all the way up to 50,000 or so as her base.

And then there are things called add-ons. Like, she will have add-ons for a C-section or for maternity clothes, or she also needs to have her legal representation covered, or if they're invasive procedures. And so, we do have a lot of variation carriers through surrogacy programs, tend to get paid a little bit more than those that self match with intended parents. And so, there is a lot of variation, but usually, most paid carriers get about 25 to 40,000 on average as their base that does not include clinic and legal fees. And then also, second time carriers tend to be able to command a slightly higher price. And then that ICSI process we talked about, that usually costs about 1,500 to 2,000 for each attempt. There are other things too, such as the pre-genetic testing or pre-genetic diagnosis on the embryos, which can run a couple thousand dollars or more per embryo.

And then there's also things like mental health evaluation and some kind of miscellaneous costs. If there's criminal background checks, et cetera, there can be other miscellaneous costs. And then, of course, there are the legal costs as well. Medical insurance for ART. Well, some states have come out with mandates to provide for fertility coverage insurance that typically would only cover the infertile couple. It wouldn't cover the cost of the carrier herself. And also, that type of insurance rarely covers donated gametes.

 So, there slowly is getting better coverage for folks out there in terms of fertility coverage. But again, most folks are gonna have to plan to pay out of pocket to the fertility clinic or to the egg bank in terms of a lot of the expenses in this area. Health insurance for the gestational carrier, if she doesn't have health insurance that covers her and she can't get it under the Affordable Care Act on the open exchange while the exchange is open, then it could be 24,000 and on upped by specifically surrogacy and insurance for the carrier. So, it's really important that she have health insurance as well. All right.

So, I do have some helpful information for clients and for folks. There are a number of support groups. There's the Path2Parenthood, which was formally American Fertility Association, RESOLVE. ASRM is a American Society for Reproductive Medicine. They have a fantastic website. They're a great resource. SART is a little more on the medical side, but is Society for Assisted Reproductive Technology. There's also the Academy of Adoption and Assisted Reproduction Attorneys. We have a great website. And then there's also for lawyers, there's the ABA ART Committee to get involved with if they wanna get their feet in the door and get started in particular, because there's no membership requirements to join the ABA and the ART Committee, if you wanna start getting involved in the area of ART law.

Jillian Kuehl - Excellent, thank you. I know everyone will appreciate this resources, I'm sure. Now I'd like to move into the drafting of the contract. So, can you go over now, what would be the prerequisites to your contract drafting?

Colleen Quinn - Yes, great check question.

So, the first thing is, before you start contract drafting, you look and make sure that you got all your ducks in a row before you get started. And by way of example, I had a program send me a match between a super, super religious carrier in Virginia and my Chinese intended parents. And when I got the match, they're like start contract drafting. I'm like, "No, wait a minute." Because my questionnaires are showing me that she's super religious, conservative, and I've got Chinese intended parents. So, I hopped on the phone with them through a Mandarin translator. And I said, "You've been matched with a carrier, and if anything's wrong with this child, she will not abort this child." And not even through the Mandarin translator, the intended mother said, "No bad baby. We no take no bad baby." And I was like, "Okay, we have a real mismatch here."

So, things like making sure people are on the same page in terms of their abortion and selective reduction views are absolutely critical because there's no language I could possibly craft to make that arrangement work. So, we do need to look at the prerequisites. We wanna figure out what counseling, what medical psych counseling has been done, what psych screening, what psych evaluations have been done, what background data has been gathered, and have the parties exchanged. What medical professionals and clinics are involved, what prior contracts did they execute? Are we dealing with donor egg? If so, I wanna get a copy of the egg donor agreement. Are we dealing with donor sperm? I wanna get a copy of the donor release. I wanna make sure that the underlying documents that form the basis of this arrangement are all on the up and up, and no problems there. I wanna make sure that none of the prior contracts or agreements, including with the program or the clinic are going to conflict with the contract I'm about to draft. So, I wanna get copies of all of those. And it's important to kind of get to know your fertility clinics and medical providers. There are some awesome materials that I give to my clients in advance, and I've listed them there.

The fact sheets from ASRM's reproductivefacts.org. They're fantastic materials to give to your clients at an initial meeting for them to read, including how to avoid conflict and third party reduction. I give my clients the ASRM guidelines, including the recommendations for practices, utilizing gestational carriers. That's the January, 2017 opinion. There is a new one that's in the works, but I want them to know what the fertility clinics need to follow with regard to these arrangements. So, that's a fantastic document. And there are other ASRM documents that I let my folks know about with regard to using donor egg, or donor sperm, or donor embryo. I also want them to be familiar with the ASRM guidelines. Like right now, the recommendation is a single embryo transfer, because if we wanna make sure that the parties in advance are on the same page and the intended parents are not saying, "Well, we wanna put three embryos in her." And the carrier's like, "Well, I've been told the recommendations are one at a time. I don't want three in me." So, I wanna make sure everybody's on the same page in that regard.

 So, there is also a lot of ethical guidance out there. I mentioned the Academy's Ethics Code, the ABA Model Act and the ASRM guidance. And I mentioned that everybody should have independent legal counsel. I've got a great cartoon in there. It's a gentleman talking to the devil down in hell. And the devil says, "And if you don't have an attorney, we've got millions of 'em." So, a little stab as lawyers out there.

There are a lot of issues that are unique to surrogacy contracts. So, we wanna make sure that the parties understand, the intended parents need to know that once the carrier gets pregnant, they're gonna have to have their state documents in place, naming the guardian and trustee for their child in case something should happen to them, they're in a car crash. We wanna map out the parentage. How is parentage gonna happen? Are we gonna get a pre-birth order? Are we gonna get a post-birth order? Are we just gonna get a post-birth birth certificate? What are the options, depending on where the baby's gonna be born? We can have a baby born in Virginia, but I can get a California pre-birth order and domesticate it before the birth and have it given full faith and credit in Virginia, even though I can't get a pre-birth order directly in Virginia, but I can get one from out of state. So, we wanna map those things out.

So, we wanna make sure that the monetary and financial issues are all agreed upon between the parties. We don't wanna end up going to contract drafting and finding out that the carrier wants a base of 40,000 and the intended parents can only afford 25,000. We wanna make sure that the financial terms are covered. We wanna make sure that the carrier's not gonna have a problem with being covered by her health insurance. There's no exclusion in her policy. We want parties to talk about what kind of contact are you gonna have during the arrangement? What's your level of confidentiality that you're gonna have? What contact might you after the arrangement? Usually, there's no binding agreement and everybody understands that. So, and then we wanna make sure that everybody understands what the breach provisions are going to be. And they're not surprised when they suddenly get the contract, but they understand what those are gonna look like. So, in the materials, I have what's called a quick checklist that I use. And I actually use it with my clients and I have them actually indicate, have you done this? Are you doing this? Or are you waiving doing this? Are you doing criminal background checks? Did you exchange background information with each other? Has everybody been medically cleared? Has everybody had a psych evaluation or are you only requiring it on the carrier? Have you had group counseling with each other? Are you on the same page with regard to your abortion, selective reduction, and your religious views?

All of those things that I kind of mentioned, and then we wanna make sure too that the carrier or the donor knows they have to have their own attorney. and lines up that attorney. 'Cause I've had cases where we're handing the contract off and then the carrier is saying, "Well, I don't wanna be represented." Well, that's not a good thing. We wanna make sure they know in advance they have to have that independent legal representation. So, I've got in the materials ways to address folks getting enough background information. And I actually use written background forms for my folks. There are some programs that are actually home study based, which is interesting. I do ask that my clients go visit the carrier in her home and actually see the environment in which their child's gonna incubate. And of course, the carrier can go visit them as well. But I think that's really important, especially because it's not the standard for home studies to be done. So, I use questionnaires for contract drafting, where we basically make sure the questionnaires match, financial terms match. How many embryo transfer attempts are they gonna make? Are they on the same page? Do they both say up to three, up to four? How many embryos per embryo transfer? Does everybody agree only one at a time? How long is she gonna be under contract? 18 months, 12 months? How many fetuses maximum is she willing to carry? Will one embryo be transferred? And if it's split, she'll carry two. Is she willing to have two transferred? And if they split, will she carry three? And then, any other issues we wanna make sure all addressed in advance. And in this area of law, it's very important if we can get all those prerequisites mapped out in advance, it makes the contract drafting just go so much more smoother and we don't have an arrangement blow up then at that point.

Jillian Kuehl - Sure, I imagine these contracts have to be fairly specific. So, are there, like, I guess, what are some of the unique aspects of these ART contracts?

Colleen Quinn - Yeah, great question. So, the law varies from state to state. So, we pretty much say you can't just ask somebody for their contract to try to use it as a template. And sometimes I'll have a client say, "Well, don't you just have a template for this?" And I'm like, "Actually, no." Because, well, first of all, our contracts are Virginia-based and Virginia has a very specific statute. And as I mentioned before, we typically only go with a non court-approved route in Virginia, not the court approved. And that has very specific requirements. But then, we have contracts that are like, it might be two, it might be two dads with a compassionate carrier, or it might be intended mother or intended father with a completely non-compassionate carrier. Or it might be what we call a pro-life contract. It might be called what we call a pro birth, a pro-choice contract. And so, there are so many variations that occur that there are a lot of differences from contract TO contract. And of course, there are malpractice implications if you try to use a contract that's based on another state's law. And we're seeing more and more states now adopting, DC, Colorado, previously Nevada, adopting their own codes. And so, these contracts reference specific code provisions. So, each contract is really unique to that arrangement on that regard. And we just have to make sure that everybody is aware of that.

Jillian Kuehl - So, once you're moving to the screening process, I guess, what's really involved when you're doing screening of a gestational carrier?

- Right, that's a great question. I like them to come to me and have an OB-GYN note already. So, they've already had OB-GYN clear them. I had one case where the carrier said she was cleared. I never got the note. We went to the first visit after she had a home pregnancy test. And my intended mother went with her and they got there. And the OB-GYN said, "I never cleared you to get pregnant. You're high risk pregnancy." And my intended mother freaked out. And they did find an OB-GYN to hand handle it. Everything went fine, pregnancy went fine, but I like to get the actual note. The carrier should have psych clearance, a psych screening or psych evaluation done in addition. So, that's mental health screening and counseling.

And then there's just basic things. Does she enjoy being pregnant? Does she have easy pregnancies? Is her job conducive to her being a carrier? ASRM guidelines recommend that she have no more than five prior pregnancies and three prior C-sections, although a lot of clinics will vary outside of that. Is she fully divorced and single, or does she have a supportive spouse or partner? She can't be in the middle of a divorce. She needs to have had at least one prior delivery, delivered at least one prior child.

And so, we wanna make sure that she's willing to adhere to the physical activity restrictions. No scuba diving, triathlon, skydiving, water, snow skiing, racing, horseback riding. Is she willing to abide by all the ingestion restrictions? It's no longer just no drugs, alcohol, tobacco. And a lot of those restrictions apply to egg donors too. Are they willing to avoid body piercings, tattoos, henna, even certain hair dyes? Or are they willing not to change kitty litter, avoid secondhand smoke? Do they have the COVID vaccine for carriers? Are they agreeable to the travel restrictions? We wanna make sure they're not going to be around a lot of paints, solvents, toxic cleaning products, those sorts of things.

And so, there are a lot of things that have to be screened in terms of what they've been exposed to as well. And so, we do want to also look for red flags. If they're single, older, no children or only had one child a really long time ago, we want to look also at red flags in the intended parents if they wanna micromanage the pregnancy. I have had intended parents that during the contract process, it just becomes very clear that they're gonna micromanage this poor carrier to death. And so, we also wanna look and see that everybody's getting adequate medical psych and background clearances. If the carrier doesn't want representation, that's a red flag. If the parties are trying to use joint representation, that's a red flag. And I really strongly recommend that the parties have joint group counseling, that's a pretty critical prerequisite.

Jillian Kuehl - Okay, great. So, moving into actual drafting of these contracts. What are some important ART contract drafting basics?

Colleen Quinn - Perfect. So, I'm gonna kind of go over a lot of slides and just say, Hey, they're there in your materials just in the interest of time. But when you get into this area and you are looking at drafting a contract, the first thing is to kind of mentor with an experienced ART practitioner on the case if you can. Don't ask that attorney for a copy of their contract, because as we mentioned, the law varies from state to state and it's their work product. I have a great little Calvin and Hobbes cartoon in here that I love to use as an illustration of, Calvin and Hobbes are just kind of blindly going along and they are in a little red wagon. And then they go off the cliff. And the bottom line of it is that they're kind of saying ignorance is bliss, et cetera. And then after they go off the cliff, it's like, basically, I don't know if I can handle this much bliss.

So, there is some, I use that slide because it's an illustration of, if you're going on this adventure for the first time, find yourself an experienced partner, someone to steer the wagon while you go along for the ride and you help navigate and you study up while you represent the other parties. So, let them draft the contract, let them steer the wagon. You go along for the ride. You might start off a little bit ignorant, but hopefully, after you've gone through the ride together, you'll have learned a little bit more and not be quite as ignorant. But that's the best way to learn is to kind of go along for the ride with somebody else. And then to do that a number of times, continue to represent the donor or the carrier, and kind of get a feel for the practice. You wanna also go to ART sessions like this one, any of the Quimbee sessions, and make sure that you learn and study up on ART law. And you can even, in some states, even be the Guardian ad Litem, the attorney for the baby and the parentage action, but you wanna look for ways to be involved without having to do the actual drafting first. And then that way you can kind of move into figuring out how to draft. And I do programs too on the nuts and bolts of, this is kind of a beginner program, but I do on the nuts and bolts of the actual contract drafting. And I share a lot of my contract language with folks. So, basically, you wanna continue to study up and then start to put together your own sorts of contract drafting provisions. I think. Yeah, so, this would be my recommendations for a lawyer that's just like starting out drafting ART contracts in that regard.

Jillian Kuehl - And what are some of the choice of law and conflict of law issues in these contracts?

Colleen Quinn - So, I'm gonna just kind of whip through some of the ART contract basics, and then that's going to be one of the ones that we are going to address. So, the first thing in the contract drafting is to make sure that you have a table of contract contents. You want to demystify the contract. So, there are tables of contents I've included in the materials so people can see, this is what goes into a surrogacy or gestational carry contract, and this is what goes into an egg donor contract. So, I've included those. You also wanna have section headings, so, I wanted people to have it easy for them to get back and see what provisions refer to what situation. Where are the payment provisions? Are they easy to find? You wanna make sure you have a logical order in the contract and chronological is best. And I've given kind of an outline there of how it should flow in a chronological order, and then have the boilerplate provisions at the end, as you would for any type of contract. And I've got all the sample boilerplate provisions in there. I've also got the basic surrogacy contract terms to consider. And then I'm going to your question, Jillian, about the choice of law issues. Before we start the contract drafting, we wanna start with the end in sight. So, we wanna look at where is the birth or the donation taking place? Where is the procedure occurring? Where is the egg retrieval occurring? Where is the embryo transfer procedure occurring? Where do the parties live? What law is going to apply to this contract? And how will the intended parents ultimately be the legal parents?

And I love Gary Larson. So, I include some of his cartoons sometime. And I love this cartoon because you've got this T.rex dressed up in Mexican gear and it says, he's on the one side of the river and the other dinosaurs' on the other side. And he says, "However, there was no question that on the south side of the river, the land was ruled by the awesome Tyrannosaurus Mex." And I use that because there is definitely a difference from state to state in terms of the laws and how they work.

So, you do want to map out if placement is... Excuse me, if the embryo transfer procedure is happening in this state, but the baby's born in another state, how are we gonna map out the parentage? We wanna look at our choice of law issues and we wanna look at the conflict of law issues. We wanna look at what ways can we make sure the intended parents are declared the legal parents? Is that a post-birth order, a pre-birth order, a post-birth administrative process? Or if it's a case where the carrier's carrying donor embryo, we might even have to look at an adoption. So, I've included some sample contract provisions in there. I've got a crazy one where we had intended parents in Massachusetts, a carrier in Florida, who was gonna move to Arizona, and the clinic involved was in Virginia. And so, we had to consult with lawyers in all four states, and you'll see the language that I used for that. And if we fail to coordinate with the other state, then we can run into issues. It could be the other state fails to give full faith and credit to the contract or a pre-birth order.

By way of example, Virginia does not allow compensation. Compensation in a contract will void the contract. I've received contracts from other states where the clients come to me and they say, "Oh, the contract was written under Virginia law. We were told it was written under Virginia law. And it even says it's written under Virginia law, but the contract includes bonus and fee and compensation in it. And nobody involved in Virginia assisted in that contract." Well, because of that language under Virginia law, that made the contract voidable. And so, nobody had conferred with a Virginia lawyer on that contract. So, then we had to do an addendum to make sure that all the language was proper under Virginia law so that the contract was no longer voidable, and that it then could be used through our vital records and under our own statute to get the birth certificate amended. So, if you don't map it out properly, the parties might spend more money, more time. They might suddenly be surprised that the procedure they thought they were gonna be able to use suddenly can't be used. And in some cases, you can make it so the parties can avoid more adverse tax treatment as well. Like in Virginia, nothing's called compensation. It's all reimbursements for reasonable household living expenses. And so, there's knock on wood. There hasn't been a tax event and we'll hope there continues to not be. But in other states where the carrier's paid, she then has to report that to Uncle Sam and she's gotta pay taxes on it. And so, you've got tax issues that could be avoided if you kind of mapped out, maybe there was another state law we could have used.

Jillian Kuehl - And so, what payments are allowed to be made in ART contracts?

Colleen Quinn - Yeah, that's a great question. So, like I said, it can vary from state to state. So, some states are like Virginia and they don't allow fees, bonuses, compensation, and you do have to characterize it as household living expenses. And typically, everything that's paid has to be legal under the law of that state. So, I'll have clients that'll say, "Well, if everything goes to plan afterwards, can we go ahead and tell her that we're gonna give her a $5,000 bonus?" And I'm like, "No. Anything that you are promising her needs to go in the contract." Or they'll say, "Well, we don't wanna do the contract yet. We wanna go ahead and pay her in advance for a number of things." And I'm like, "Well, that needs to be all legal and all up and up in the contract." We may even have to do a precursor contract to the contract to pay those preliminary things for mileage for her to go to screening and supplemental living expense allowance or childcare because she's missing work and she needs childcare covered to go to the pre-screen, that sort of stuff.

Then we also wanna know, are those payments gonna be taxed? And if they're taxed, who's got the tax liability? And then, how are those payments going to be made? Are you gonna use an escrow agent? Are you gonna pay them through Zelle, or Venmo, or PayPal, or you gonna give her a prepaid credit card type thing. We wanna know, when are they gonna be paid? What proof of payment? Does she have to submit receipts? And then we also want the carrier to know the money is there. If it's not being put in an escrow account, are they sending her monthly statements from like a money market fund showing her that the money has been set aside for her as well?

Jillian Kuehl - And so, what might be some other, I guess, major issues in contract drafting?

Colleen Quinn - Yeah, so, we're gonna kind of zip through some of those other major things. I mentioned before the health insurance coverage. That's really good a goal to make sure that the carrier's not gonna have an exclusion. And suddenly, the intended parents are looking at paying all of her medical, her maternity care, and even the delivery for the child out of pocket. And for international families, that's even more critical. And so, we're always looking for products. There are a few new newborn insurance products that have come out to help with international couples. 'Cause, of course, you know, they're not gonna have newborn insurance for their child and you don't want the child to go on the carrier's insurance 'cause it's not her child. So, we wanna make sure the carrier's insurance is gonna cover, that there's insurance for the baby when the baby's born.

And then we wanna make sure that there are no provisions in the carrier's contract that might make the intended parents liable as third party guarantees or under any segregation provisions. We also have certain special issues with TRICARE and Medicaid that I could probably spend another hour on, but we just wanna make sure we address those issues. And we wanna do that so that our clients aren't suddenly hit by surprise that something just came outta left field, and suddenly, they've got costs that they weren't aware of. We had that happen. I had a carrier switch jobs. And when she did that, the insurance to her new job did not cover her maternity care. And yeah, so, that was a big surprise. And we had to fight that with the insurance company. But, of course, my clients were pretty surprised at that.

We really could devote a good two hours just on all the contract drafting issues, but sticky issues that you wanna make sure are addressed are the medical instructions for the carrier regarding conception, her management of the pregnancy and her adhering to all the restrictions, the level of confidentiality. Is she gonna be allowed to blog about it on Facebook? We talked about abortions like reduction issues, but we also wanna address miscarriage and stillbirth. What happens if any of the intended parents die, separate, divorce, disappear? Who's assuming what risk and responsibility? We don't want anyone to waive counsel. We wanna make sure the parties all have a meeting of the minds in terms of their expectations. We wanna make sure they understand the breach provisions and we even wanna address lab or medical issues if the lab screws up in some ways. In terms of the abortion selective reduction, I mentioned before the program that sent me the highly conservative Christian carrier with the Asian family.

We do have a case out there that happened when Crystal Kelley was caring for a Connecticut couple, and it kind of gives an illustration of what we can control and what we can't control. In that case, she got pregnant with the child. The child was determined to have disabilities and the intended parents, they offered her 10,000 to abort. She demanded 15,000 to abort. Then she decided she couldn't abort. So, she moved to Michigan where, as I already previously mentioned, paid surrogacy is not enforceable. Fortunately, they found an adoptive family to take the child and the child survived after a number of surrogacies. But what that taught us is that even though we say in the contract whether she can abort or not abort, we're not gonna get a judge to enforce that provision. She's got a constitutional right over her own body. So, we do want our clients to understand that she could, like Crystal Kelley, refuse to abort and could even move into another state. I do have a sample abortion selective reduction provision in there.

Typically, if the carrier's health is at risk, she will always have the right to abort. Her life always takes priority. And then I've got another sample provision when testing reveals abnormalities, whether she will abort or not abort. And I've got another one on selective reduction in there. So, all of those are just sample provisions that I've included with regard to those issues. We also want to be aware that some states actually criminalize abortions, like Texas, and that a lot of health insurance policies exclude elective abortions. And we are just not going to get that sort of provision enforced by a judge. I actually do a separate letter for my clients to sign saying that I've explained this to you, that that's the one provision we're not gonna, she'll be a breach of contract, but we'll not be able to get the judge to enforce that provision.

Jillian Kuehl - Okay, very interesting. And thinking forward a little bit, what might be like, some issues for the children of these ART?

Colleen Quinn - Yeah, that's a great question. I mentioned we've learned a lot from the adoption world, and I really push my clients, if a child is born from donor parts, to introduce through a children's book early on. There's good reproductive fact sheets that I mentioned on when to tell. I truly believe, like, what we've learned from the adoption world is that the earlier you can introduce them to the concept of mommy and daddy needed to borrow a seed from another tree, or mommy and daddy needed to use an apostle mummy. And there's great children's books. I give the list of those children books to my clients. For the child to know where their donor is or where their gestational carrier is also is beneficial. It kind of grounds them in reality.

 Again, we learned from the adoption world, children that know where their birth parents are and what they're doing, will generally be a little bit better psychologically grounded. We do wanna know, is a donor gonna be able to register on a registry? Are we gonna be able to find that donor? And then, are we addressing those issues in the contracts as well? Under materials, I have included a couple of unique issues to same-sex couples. It's important with LGBT couples that they recognize that they really do need a court order to back up their parentage and not just rely on the birth certificate, the birth certificates and administrative document. And we have the D.L versus E.L opinion out of the SCOTUS ruling that says that all adoption orders have to be given full faith and credit across all states. And we pretty much think that's the same with, gonna be the same with all parentage orders. So, that is pretty much protocol with same sex and even single couples. We also have issues with unmarried couples. And in many states, they may not be able to get a parentage document or order, but in other states, they might, especially if they use their own parts. And so, unmarried couples also present some unique issues as well.

Jillian Kuehl - And I know we've touched on this slightly earlier, but what additional issues are there for international clients?

Colleen Quinn - Yeah. Those agreements tend to be little bit more complicated and sometimes take longer, including the use have of translators might be necessary. In some cases, we've even had to make sure that a translator translated the full contract so that the foreign intended parents understand the contract in its entirety, and actually get verification that the contract was translated to them. I typically, if I'm working with a foreign couple, England, Germany, China, Brazil, wherever it might be, I wanna make sure that they are also consulting with a lawyer in their own country. And then I like to be able to touch base with that lawyer just the past couple weeks, to touch base with the lawyer from France, another one from Israel. But I wanna make sure that they're not gonna run into any immigration problems or citizenship problems with regard to their child, and that I'm getting them the documents that they're gonna need in order to make sure that citizenship and parentage is all gonna be achievable when they get back to their home country.

Obtaining criminal records and background checks is more difficult with international families. And then the support of the carrier and the communication between the parties can be trickier. A lot of the international families will attend the doctor visits by virtual means. And a lot of, they'll communicate by WeChat or WhatsApp or of all sorts of means, but we wanna make sure there is a good level of communication. I mentioned before, the funding of the newborn insurance and some new products coming out on the market, but that's always been an issue, making sure that the international parents are gonna pay for the medical care for their baby. We've also seen issues with the intended parents not being able to get into the country without getting, first a birth certificate for their child. We actually had Chinese parents that it's taking them up to three months to come get their baby. The funding is also an issue, making sure all the funding is there. And then issues with expediting the birth certificate, the passport assistance, getting upper stills and certified translations. So, there are a lot of additional issues unique to international couples.

Jillian Kuehl - And then, what about any unique issues with the ownership of embryos. If, for some reason, the couple that own them separates?

Colleen Quinn - Yeah, so, I am actually working on a letter to go out to all the clinics I work with, along with a recent Virginia Supreme Court, no, Court of Appeals decision that just came down. And there's also a Maryland Opinion that came down recently on this issue. If a couple has their embryo stored at a clinic, and then they split up or divorce, in many cases, that fertility clinic document will not govern the disposition of the embryo. So, we're seeing more and more fights between couples, especially where the intended mother, she might have had her eggs retrieved and then she underwent chemo or she might have aged out. And so, she can no longer produce eggs, but those eggs were combined with the ex-husband's sperm. He doesn't want anymore kids. She's like, "This is my last chance." And so, there's like three different theories that they're floating out there. Basically, whether the clinic document governs. And there are two other theories that are out there. And so, it's an evolving area of the law, but the bottom line is that these couples, before they form these embryos, really need to have a separate disposition agreement. And it can't be like an equitable, like, you can't just hand these things like a car, like, when you divorce. You can't just say, "Oh, I'm gonna give you title of the car." Right, eggs and sperm and every other special properties.

So, they need to be specially donated by virtue of the special language under that state law. And so, they have to be transferred under a donation agreement. And we wanna make sure that these couples do have a donation and the same thing between same sex couples, 'cause I'll have a lesbian couple. Well, they'll have one member will have used her eggs, but they will have co-purchased the donor sperm. Well, now they both co-own that. So, they need to have an agreement that says, the one that contributed her egg, she owns or she pays solely for the sperm, or the frozen sperm. And she owns if they split up. And same thing I just did one recently with the same sex guy couple, where it was his egg and... Excuse me, his sperm and donor egg, and they had separated. And so, we had to do a specific donor release from his ex so that he had free and clear ownership of those embryos. So, that's been an ongoing problem. And that's one of the last areas that I will touch upon in this presentation, which is just kind of the tip of the iceberg in this whole area to give folks a general overview of the area of ART law.

Jillian Kuehl - I'm sure there's definitely more to come on that. I'm sure we will see some more interesting situations develop. But thank you so much, Colleen, for being on with us today. This was an absolutely wonderful and informative session. We look forward to having you back, and I will turn it over to you now just to let our audience know how to get in touch with you should they have any questions.

Colleen Quinn - Great, thank you so much, Jillian. You've been a fantastic host and guiding me through. So, if anybody does have questions, they can reach me at Colleen, C-O-L-L-E-E-N, @quinnlawcenters.com. And that's Q-U-I-N-N. Then law centers with an s, .com. You also can call me at 545-9406. I'm usually best reached by email just because being in and out of court meetings, et cetera. But if you have any questions in that regard, feel free to contact me. I'm more than happy to help folks that are getting into this area. I even have a kind of overview sheet of how to get into the areas of family formation law, if you're just starting out.

Jillian Kuehl - Great, thank you so much. All right, take care.

Colleen Quinn - All right, thanks, Jillian. Have a great rest of your day.

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1h 4m 17s

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