Lunch & A Divorce Lawyer LIVE with Attorney Peter Olson and Attorney Tiffany Horstein
THIS MONTH:
This month we discuss how to grow your family by means other than traditional sexual intercourse with Tiffany Horstein, an attorney focused on assisted reproductive technology. It's a super, interesting discussion on both the cutting-edge science and legal side of building your family in the 21st century!
Learn more about Attorney Tiffany Horstein at:
https://www.familyforwardlaw.com/
Peter: Hi there...!
Welcome to Third Thursday Lunch & A Divorce Lawyer. I’m attorney Peter Olsen, Chicago Family Law Group.
Thank you for joining us this month. This month we have an exciting guest, Tiffany Horstein, with Family Forward Law, LLC.
Do I have your firm right, Tiffany?
Tiffany: You do, it’s correct.
Peter: How long's your firm been in existence?
Tiffany: I've had a firm for about three and a half years, and before that I worked in different areas of law and finally found my happy place when I set up a Family Forward Law Firm.
Peter: Great! You are nice enough to jump on here to talk about Assisted Reproductive Technology Law, is that a thing?
Tiffany: It is a thing, it's a big area and it has a lot of overlap with domestic relations that you handle, adoption cases and just everyday life with people growing their families nowadays.
Peter: Our audience is people from all around the world, that's the joy of social media, isn't it? I think it's a bit of a layperson audience and this isn't a CLE here. So, I’m Joe off the street, Assisted Reproductive Technology Law, what is it?
Tiffany: It covers everything from egg donation, sperm donation, embryo donation, gestational surrogacy, it can even cover divorces where people are fighting over embryos and what happens to them that they've created, and it's really just a kind of family growth through means other than conception through intercourse. It may be a married couple that has to use a gestational surrogate, it may be a same-sex couple or it may even be a single individual, a woman that has a sperm donor in order to have a baby and whose rights, who cares for that child long-term, who's financially responsible for that child and who gets to hold the child when it's born at the hospital immediately after birth - if it's being carried by a gestational surrogate, but that's not who's going to be mothering the child for the rest of its life.
Peter: There's a lot there, it sounds like I need to be a little bit more of a scientist than I am. I didn't even realize just yesterday because one of the laws we deal with in child custody, parentage cases is the Illinois Parentage Act and I didn't realize there is a whole article. I’m forgetting what the heading on it was but there was a whole article on maybe this topic.
Tiffany: Yes, Children of Assisted Reproduction; yes.
Peter: Yes, I’m looking at that law all the time. That's what governs unmarried parents even in a traditional child created through sexual intercourse sense. Custody, child support, parenting time and little did I know, there was a whole article on Assisted Reproductive Technology in the Parentage Act. So that's good to know. Could we break down almost a totally generic example, I guess. Do you want to start the hypo work or should I? I'll use myself. I’m a man in my mid-40s, and I am married, me and my wife. So that part isn't hypothetical, but is the hypothetical that then we're struggling to have children traditionally and now we might come to you because we want to start a family, is that a good jumping off point?
Tiffany: Yes, so a lot of times it would end up starting with a fertility clinic. You've been trying to have a child for a couple of years and it's just not happening. You're trying to figure out what's wrong. Is it the woman is too old or isn't ovulating, eggs aren't working or is it that there's kind of a male sperm issue or is it that they're conceiving and they keep miscarrying? Just trying to figure out what's happening and are we going to be able to even have children together or are we going to have to look at other options?
So a lot of times people will then go to a fertility clinic and try to explore what's the right option for us and the doctors a lot of times are the ones who say “you need to look into an egg donor, you need to look into a sperm donor or the woman has some sort of uterine issue that she's not able to actually carry the baby, and even though the baby could be 100% genetically related to let's say you and your wife, your wife might not be able to carry the baby and you might have to look someone else to carry your embryo.
So, you've got eggs from a woman, you've got sperm from a man and those two together are what create your embryo. The technical terms is, oocytes your egg and your sperm but how everyone knows them is women ovulate, you have an egg and that's kind of what she gives. Then men have their sperm, that fertilizes the egg and then you create an embryo. So, that can be created in a lab, that can be related or unrelated to the people eventually having a baby. In Illinois, in order for it to fall under our law of gestational surrogacy, if you have someone else carry the baby for you, at least one of the intended parents has to be related.
So, if it were you and your wife, either you would have to give the sperm for the baby or she would have to give the egg or it would have to be both of you providing the embryo for this non-related party to carry.
Peter: I’m fumbling it so far. Seriously, I think there should be a whiteboard feature in Zoom. So, let's go down the track a little farther. What's the most - is there a most common situation in other words? Can we just pick one, just for sake of time now? My wife and I have created an embryo, is that right? And now we need a woman to carry it, is that correct?
Tiffany: Yes, a gestational carrier or gestational surrogate would be what they would be called. Illinois has Illinois Gestational Surrogacy Act and that's what governs it in our State, and so gestational surrogacy is not legal in every state. There are some states that absolutely do not allow a woman to carry a baby that is unrelated to them for another couple. It's kind of an alternative to adoption but in other states where it's not allowed, that woman would have to carry her own baby and then give that baby up for adoption. Whereas, in Illinois, the baby could be related to the two of you 100%, and your wife just wouldn't have to be the one carrying and birthing it.
Peter: What do I do then? I mean, what is the next step then? So, now we've located - is that perhaps the fertility clinic? how do I know, so my wife and I need somebody to carry “our” embryo, where do we find that person?
Tiffany: There are a lot of options. There are agencies that connect gestational carriers to intended parents. The agencies provide certain guidelines for compensation. In Illinois, it can be compensated for surrogacy. In other countries, sometimes it's altruistic surrogacy. Like in Canada, the birth parents can pay the medical expenses but they cannot compensate that individual.
In Illinois, it's really viewed as a service. So, you are paying this woman for the service of carrying your future baby. It is compensated. It all depends on the relationship. Some people have family members like a sister, a cousin, someone like that who's willing to carry this baby for them. They know that they've been struggling. They've already had their own child so that's one of the requirements in Illinois, that they have to have their own child and they have to be over the age of 21. They have to not have any sort of medical complicating factor that could potentially result in an issue with the pregnancy.
The gestational surrogate, once you find that person, they also have to go through a bunch of medical screening, generally with your fertility clinic. That person has to be medically cleared to be able to carry your baby. They're always risks in pregnancy but that's one of the ways to screen out these risks and you're not just putting this woman through a lot of stress that's going to cause a health issue that they didn't previously know about. It may be from your clinic that you're going to find them. It may be someone you know.
Agencies can be expensive, they charge a fee to match, to monitor those two individuals, to make sure everything is going well. People also post ads on Facebook or Craigslist.
Peter: It seems an area where there would be an above board market than social media, Craigslist?
Tiffany: It's just something to be cautious about. I mean there's a lot of money that goes into fertility treatment itself and then the compensation of the gestational carrier, and the medical expenses of the pregnancy because in Illinois, you're required to have health insurance coverage for a gestational surrogacy's pregnancy but that means that the intended parents are paying potentially a monthly health insurance policy that this person might not have had through their own employer. In addition to the monthly compensation, you're having to discuss things about, if there's an issue, a genetic defect with the baby that's discovered, who gets to decide if that pregnancy continues.
You have those conversations before anything happens because for religious reasons or ethical reasons, some people may be okay with ending a pregnancy if the child is unlikely to survive after birth because of a genetic issue. Some people may be absolutely against it. Those are all things that have to be discussed at the outset and both parties have to be represented by independent legal counsel before any transfer happens.
That's a really big one in Illinois, so I may represent the intended parents and then a different attorney has to review the agreement and work directly with the gestational carrier, and if she is married, her spouse. And that spouse also has to agree to all of the terms of the agreement because at the end, as you know there's a presumption that a child born to a woman during the course of a marriage is a child of that marriage; belonging to that husband and wife. So, the husband also has to agree that they will not make any claim to this child even though they're not genetically related to it, that they agree to relinquish any and all assumed rights at the time of birth. They agree to kind of abide by some of the guidelines that the fertility clinic is also going to be asking about. So, certain things like not having intercourse after the transfer, so that you're unlikely to be creating your own child.
So, things like that and both sides have to agree, both sides have to have independent legal counsel, both sides have to undergo a psychological background check as well so they have to meet with a therapy provider who is familiar with gestational surrogacy and the risks. It's an emotional thing having a woman carry a baby and then giving that baby to another couple. So, you're making sure that that woman is stable enough, really understands what they're doing.
Usually your gestational surrogate and your intended parents keep a relationship after that. They develop a strong bond during this. They talk a lot during this. They continue a relationship after the baby is born but there's no requirement that they have to, and so if the intended parent at some point in time change their mind and say they don't want any more contact with the gestational surrogate, they could cut off all contact and that carrier could have no options to be able to see how this child that they carried for nine months is growing and doing in the future.
Peter: There's a lot there. I am fumbling through. Both have legal representation, that's interesting because I don't think that. I’m no expert. I’ve handled a few in my career on an adoption, the parent allowing the adoption happens does not have the requirement to have legal representation, do they?
Tiffany: They don't, so with adoptions if someone is contesting an adoption, they have the right to appoint counsel because it's addressing termination of parental rights. So, termination in Illinois, whether it's juvenile court or adoption, requires that the court appoint an attorney, but there's no requirement that if you're contesting an adoption, you have to get that attorney appointed or you have to retain an attorney. You could represent yourself and contest it or you can just agree to the adoption, sign these consents or surrender and you have the right to counsel but you don't have to have counsel.
Peter: So, if we're going down our hypothetical a little farther, my wife and I have now matched up with Ms. Smith, the generic 28 years old who's healthy and psychologically appropriate and whatever other standards. She's had her own children, I think you just said. What's the legal side? What are you doing and I guess if you're representing my wife and I, what's the picture?
Tiffany: Our first thing is really going to be a meeting and figuring out what your relationship with the gestational surrogate is, what compensation have you guys discussed with a gestational surrogate. That may include a monthly amount to provide for her housing and her food. Under the Parentage Act, it requires parents to essentially pay for the care of their children from the time of birth. There's an expectation that you're providing for your children from conception. Then once they're born, you have to continue providing for your children.
What we're really saying is that you're not purchasing the embryo, you're not purchasing the baby, you are paying them for their service; for the pain, the suffering, the inconvenience of having to attend medical visits. When I meet with my clients, we discuss whether there has been a conversation, if it's from an agency? The agency gives you your list, here is what you are expected to compensate your gestational surrogate. Things above and beyond that could be negotiated.
Once we get those payment terms sorted out, compensation for travel, if they have to travel to a different State to have the transfer, paid medical leave for work. So, if the employer doesn't have a short-term disability policy and this individual goes on bedrest at the end of their pregnancy and can't work, you're responsible for paying for their lost wages, and that's something that's negotiated and we make sure that we have that amount or the way that's calculated in our contract.
Once, we get the initial terms out, I am drafting a 40-50 page contract for you that lays out all of these terms, it lays out everything from what makes you both eligible to even enter into this agreement which are kind of those age requirements, psychological background checks, healthy, no sexually transmitted diseases, those sorts of things. I'll get laid out.
What is the agreement intended for? So, it's intended for this other individual to carry an embryo that is made up of DNA from you and your wife, and that they intend to carry that solely for the purpose of providing this child for your future care control custody and that they agree to surrender any and all right immediately upon birth of that child. So, you lay out the way that works. If anything goes wrong during the course of the pregnancy and there's an emergency and it ends up being you make a decision about the health of the gestational carrier or the baby and you always make the decision for the gestational carrier, who gets to make that decision if the intended parents can't be reached?
Let's say there's some sort of issue with the pregnancy and the doctor has said, “Hey, here are three options to try to save the baby. There's no risk to the health of the gestational carrier, but the doctor gives three options and the intended parents can't be reached. Let's say, you and your wife are both at work, you've got meetings, you're in court on something like that and she's at the doctor and this issue comes up and they can't reach you. What happens if she decides one way at the recommendation of that physician and the baby doesn't make it? Who's responsible for that? The reality is, she's not responsible for that because she made a medical decision based on medical advice but all of that goes into the agreement.
What goes in the agreement is also what happens if something happens to you and your wife. Let's say you guys are in a car accident and both pass away before the baby's even born, requiring you to name guardians for the baby so that those guardians can be the individuals that raise the baby and have custodial rights to that child immediately upon birth. Then all of the compensation factors.
Peter: I wrote something down from my deep analysis yesterday, is the agreement the gestational surrogacy agreement, that's what I saw in Article 7. Let's call that the contract, we're talking about the 40 pages, I think you said.
Tiffany: Yes, and it's governed by the Illinois Gestational Surrogacy Act, so it lays out very clearly, here are the requirements to make for these individuals to be eligible and it lays out I think like 10 different factors of what has to be in the agreement. In compensation is one of those things that you don't have to compensate a gestational carrier. Someone could do it just because they want to help you, but in other States, you can't compensate them and in other countries, sometimes you can't. So, by allowing compensation the act notes, that doesn't change the situation. Compensation doesn't make it an invalid agreement. There are certain terms that are required to be in there and there's a whole lot of extra just to make sure that both sides are protected.
Once, I have that agreement drafted, we have a very long phone call to re-review it because within the Illinois Gestational Surrogacy Act, the attorney is required to inform their clients of their rights, responsibilities, obligations and it's very specific language about exactly what that attorney is required to do and make sure that their clients understand that. So, we review the agreement essentially line by line in a very long phone call to make sure that everyone knows what their rights and obligations are.
Peter: It looks super deep, like what I was thinking about when I was looking at the terminology and what you've said too. It's like so many of these areas, you also have to think about what if somebody passes away or something before?
Tiffany: Divorce, we're familiar with divorce, right? What happens if you and your wife get divorced before this baby is born?
Peter: Now, I know there's some cases out there on fighting over embryos and stuff for sure. So just to land the plane a little bit, let's we're at the hospital and now I have my beautiful baby girl or maybe I don't have her yet, she's just been born. How does it end with regard to now becoming legally my and my wife’s child just in our little really quick easy scenario?
Tiffany: What would happen is that once the agreement is signed and executed by all parties, thankfully the Gestational Surrogacy Act has language that says that if certain certifications are signed and there's certifications that were created by Illinois Vital Records. Both attorneys have to sign them, all the parties have to sign them and then an Illinois Licensed Physician who knows the parties and is familiar, they have to sign one confirming that this child is not the child of the gestational carrier and her partner and that the gestational carrier and her partner are not related.
Those forms have to be executed and provided to the hospital where the woman is expected to give birth; originals of those forms to that hospital. Then a copy to vital records. That allows your and your wife's name to actually go on this child's birth certificate immediately upon birth and to take custody of the child immediately upon birth. That means you may be in the delivery room if your gestational carrier allows it. In times before COVID, that would happen. Sometimes you guys would be there with her spouse, so as soon as the child is born, the doctor is handing the baby to you instead of the gestational carrier.
It's a situation where as long as everyone is updated and involved, hospitals are aware, family building's a little bit different than they used to be. As long as all of the paperwork is in place and the hospital allows it, and there's no medical issue with the child, a lot of times the intended parents are able to hold that baby immediately and then care for the child. Sometimes they might even have a room at the hospital. They might be paying for that room at the hospital but they'll have a room at the hospital to be able to be there with the child the entire time.
After that, your names are on the birth certificate which is great but in our scenario, with you and your wife, you're both biologically related to the child that puts you on equal footing. But, if you had a situation where either you or your wife was not biologically related to the child and you had to have a donor, you might have to consider an adoption even though this is legally your child because you want to be on equal footing. So, your birth certificates are only a State document.
Let's say that you guys move to a different state that doesn't acknowledge gestational surrogacy and so in that situation, you're going to want to have the judgment of adoption, so that another State is going to give that full faith and credit.
It's kind of a re-adoption in a sense because you're already legally related, you don't have to go through all the background checks and all that stuff. There's actually an amendment to the Adoption Act that got passed that allows the judge’s discretion on whether or not to appoint a guardian advisor, so this would be one of those situations where you might avoid that extra expense and extra step and the judge is really just rubber stamping the relationships that are already there, so rather than just a state document, you're going to have a court judgment that's given full faith and credit throughout the US.
Peter: It's good to hear at least in one scenario. It's kind of automatic, I was picturing or thinking about some of the scenarios I deal with Parentage Case where the father's not on the birth certificate or something. Basically, that's part of the court case or an adoption where it's part of the court case, whereas this sounds like it's done. It's a bit more self-effectuating.
Tiffany: Yes, it's been very well written and then the Vital Records Act was updated and then the Administrative Code was updated for Vital Records. Everything is in order if you submit your documents when you're supposed to and vital records accept them and you've advised the hospital that you should be good and all of your ducks are in a row and your name should be on the birth certificate and the child can go home with you.
Peter: This sounds like this would be just a bigger circle of an Assisted Reproductive Technology Law or the real thing would be growing, right? I mean this is just Peter being semi-informed about different things but what people are getting married older that's a fact demographically, so I think you're having children later. I would think some of the same-sex marriage, legality that's changed in the last half a dozen years, am I clueless or some of those things driving probably this becoming more popular prevalent?
Tiffany: It's definitely becoming a growing field and I do think a lot of it is out of necessity. I mean a male couple that is legally married throughout most of the US now or a large chunk of the US, they can't have a baby on their own and a female same-sex couple cannot have a baby on their own. That's part of it, that's a large portion of my clients. Some of it's also single women seeking to have babies later in life or single men who are in their 40s or 50s and don't have a partner. So, even with the sperm donor agreements, I get a lot of people contacting me trying to figure out, they have this friend who is willing to provide their sperm for them to have a baby.
How do you do that? So, that they are not on the hook for child support and they don't have a right to visitation. When do you get those agreements put in place? What is the medical process that has to be in place because the Parentage Act says that children of intercourse are biologically related to that person and then there's a responsibility, so it has to be conception through a means other than intercourse in order for it to fall under these kind of donor categories where we can create a contract to address those issues ahead of time to make sure that these individuals aren't going to have problems down the line.
Peter: Got it, and so Tiffany, how did you get into this exciting nuanced area of law, tell us why you're passionate about it or how you got into it?
Tiffany: Yes, I think like most people in Adoption in Assisted Reproduction, we found a personal route there. I had always been interested in adoptions. I have a couple family members who were adopted and I've had quite a very legal career. I started off in plaintiff's personal injury, so had a very strong litigation focus ended up at the Department of Children Family Services, handling Child Abuse Neglect and so I got to see kind of the DCFS adoptions on that side of foster children that re-sparked my passion for adoptions and as I got older in my career, I decided that if I was going to stay in law, I wanted to do something I was passionate about. That pushed me towards adoptions but then for Assisted Reproduction, I actually had cancer about five years ago.
My spouse and I were really lucky to go through fertility preservation. So, from being able to freeze eggs and embryos, it got me rethinking about this whole field and our future. It's just definitely that personal factor and I think a lot of the attorneys that I've met in the field have either dealt with infertility issues or gone through IVF on their own, so having that personal experience, I think makes it easier to understand the process and counsel clients. So, yes, it was definitely a personal thing for me.
Peter: Absolutely yes. That's huge. I think clients can see the empathy and trust because, “Hey, I've been in that whatever situation.” You're an ideal client when we're talking about Assisted Reproductive Technology, who's your ideal client? Who should call you? I mean I understand they're different, little what are the roots of this tree, is there one or a couple who it's like “Hey, I’m dealing with a lot of these?”
Tiffany: I think anyone looking to grow their family through non-traditional means whether it's donors or even adoption, having all of the information at the beginning, I think helps people make decisions and so being able the way the cost differences for adoption versus Assisted Reproduction, at the very beginning, I think it is helpful. Anyone looking to grow their family through alternative means, is really who would reach out to Family Forward Law to help us move you forward.
Peter: How can I reach out to you Tiffany?
Tiffany: Sure, so my law firm website is www.familyforwardlaw.com and then my email is my first name tiffany@familyforwardlaw.com.
Peter: Sounds good. Total aside, I've always liked your law firm logo, good logo.
Tiffany: Thanks, I made that.
Peter: Wow, well. I like it. You have a good background too, it sounds like you know your Assisted Reproductive Technology Law and you're cool with the graphics too because you have a good background on Zoom, you did your own logo.
Tiffany: Thanks, I made that one too. I’m just an attorney with a creative passion.
Peter: America needs that creativity, big time. Well thanks again for joining us tiffany. I am super thankful.
Tiffany: Thank you for having me.
Peter: Thank you for your time and I’m definitely referring people to you for this area because it's outside our area, but I think it’s sort of one step away from maybe the Family Law that we practice at Chicago Family Law Group. Thanks again. Take care.
