Hello, this is Timothy Hickman, the past president of SART, the Society for Assisted Reproductive Technology. We're talking here on the IVF Experts podcast series. Today, I have the pleasure to interview Amani Hanson, who's served very, very well on our SART Executive Board as the Legal Professional Group Representative.
Amani is an attorney. She has her own firm and does wonderful things within this field. So we're going to just visit today about how the legal world plays into the field of in vitro fertilization and what situations and so forth.
So, Amani, welcome to the podcast. Good morning. How are you? Thank you for having me.
My pleasure. We're certainly thrilled that you're able to join us today. Yes, I'm thrilled to be here.
Very excited. Well, so let's start out this way. Let's say I'm a patient that is interested in having a child.
What are situations where a patient might come to you and seek your services? Great question. So I generally represent prospective parents or intended parents that are pursuing family building using a third party. So that could be a donation, sperm donation and gestational surrogacy.
So generally, patients would, you know, realize or come to terms with the fact that they need to use a third party to have a child or build their family or grow their family. And I would say they would need me very early into the process as attorney. So the fundamental purpose of why you would need an attorney is really to protect and establish your parentage to the child that's ultimately born.
That's the big picture reason why you need an attorney. But there's so much in between of when you are starting the journey until you're taking a baby home that goes into that. So it's not that simple.
So there's establishing parentage. That's the fundamental reason. But there's also legal contracts that need to be in place, obligation rights that need to be established.
So many things from that from that perspective that are important. Also, what's really important from the legal perspective is education, understanding the process. There'll be a lot of parties or professionals involved in your journey and understanding what you need and who you need and who are the right professionals to engage.
And we can talk about that in more detail, but that's kind of the general idea is guiding, really guidance for an advocacy for that patient throughout their family building process. Excellent. Well, you know, IVF has been just booming over the last several years.
Now it's almost three percent of all the IVF, all the children in the U.S. are IVF babies. And I see that surrogacy or using a gestational carrier has really had an uptick, certainly in our clinic. We're seeing quite a bit of that and you've been very helpful with us.
We really appreciate that. What is some of the history? Can you just kind of tell us the evolution of how this came to be, how legal services started being introduced into this field? And were there some cases in the past that said, oh, yeah, therefore we're going to go ahead and change how we do this? And also, I'm sure it varies state to state. So maybe you can touch on those pieces.
Yeah. So I'll talk a little bit more generally. So I'll say this.
I've been in the industry just over 12 years and the volume of clients or patients in your realm as patients, in my realm as clients seeking a surrogacy journey has increased astronomically in the past 12 years. It's incredible to see that. And it's actually wonderful.
I think a big part of it is education. People are more aware of the option and I think that it's more potentially tangible or possible. But I will say this generally about the, I think the evolution to kind of keep it simple is so there's, and we can get into the legal, like the laws and how those differ.
I think this is a good time to kind of introduce that or talk about it. So there is not a federal law in the United States that regulates the surrogacy process. It is state specific.
And so the evolution has been very different from state to state. I don't know if many know this, but California is really known to be the global hub for surrogacy because it's one of the first states that have very clear surrogacy laws and statutes. And the laws and statutes are not, I don't know if the word discriminatory, but it's not specific to a specific individual or group of individuals that are looking to expand their families via third parties.
So it's open to whether you're single, you're married, partners, same-sex couple, you don't need a medical, different reasons. The law is just very open, right? And welcoming. And so California has really just grown to be the global hub.
And I think other states have followed suit, but different states have different laws and the laws vary. And we can touch on that in a little bit as well. But so I think that the evolution of the journey or the process started when states really didn't have laws, right? And parentage needs to be established.
So when you have, so there's a presumption under the law that a woman who delivers a child is a legal mother. That's the general rule. And I think it's kind of a reasonable presumption there.
And so when you're using a gestational carrier, you have a third party who's delivering a child on your behalf. So we need to rebut this presumption with the law that says that she's actually not the mother, but the intended parent is the parents of this child. And so that's where the law has evolved from this and why lawyers were involved and needed to be involved was to rebut this presumption and ultimately establish parentage.
And then slowly states, some states developed laws to make that feasible and then to also regulate the process. That's the one big thing about third party reproduction or doing surrogacy in the United States is that it's a highly regulated process. And that differs from other countries where, you know, some countries don't even allow surrogacy or it's prohibited or illegal in some countries.
It's just, it's not possible, but, or it's done and it's, but it's not as regulated in the U S we have very clear laws. And so states started to develop laws. And it's, it's state specific.
It's hard to go through all the states, but there are states that have very clear statutes that regulate the process, make it feasible. There are states that have laws, but it's targeted toward a specific group or individual or groups of, of, of, or specific types of family building. You have to, let's say, for example, some states require a marriage requirement.
Some don't. And then there are some states that don't have a specific law on point regarding surrogacy, but maybe there's case law, or maybe there's some general law that says that it's not against public policy or it's not prohibited. And instead we're relying on the courts and the judges to make these parentage act or, you know, sign off on parentage orders or establish parentage.
And then there are states that are still pretty difficult. So it's very interesting, the evolution of surrogacy. It's, it's, it's very new area of the law relatively to other fields of the law.
I would say in the past 20, 30 years, things have evolved significantly, especially in the past 15, 20 years. I will say let's, we probably should define surrogacy and what a gestational carrier is, because I guess traditional surrogacy would be someone that is offering their egg, it's fertilized, they deliver, and then the child goes to someone else. That's not really what we're talking about here, is it? No, not at all, actually.
And that's kind of great question as it relates to the evolution of surrogacy. So I think when the concept of gestational carriers or actually surrogacy started, traditional surrogacy was really, I guess, what was being done. And a traditional surrogacy is when the surrogate herself is actually genetically connected, related to the child.
As the surrogacy, as the years, you know, the process has evolved, in today's time, we don't do traditional surrogacy at all. And in many states, it's actually not even allowed. By the way, I should state also, ASRM has never condoned that.
Yeah, yeah. So it was really just for medical technology, different reasons, like 30, 40 years ago, traditional surrogacy was maybe what was available at the time. Now, everyone's using gestational carriers.
So there's gestational carrier. So when we say surrogate, actually, it's very interesting from a legal perspective. When you say surrogate and you gestational carrier, there is actually a distinct difference.
But the words are actually used very interchangeably. But from a technical perspective, I would argue that a gestational carrier is someone who's carrying a child that is not connected. She's just the carrier versus a surrogate also could be like a traditional surrogate, wherein she was, you know, genetically connected.
And that's the distinction. So today, we do not do that at all. Just to be clear, we're talking about using gestational carriers here in ERC.
So not traditional surrogacy. Yeah, we're never talking about traditional surrogacy. Now, it's very interchangeable and we use it.
We say surrogate, surrogacy. Even in our contracts, there's attorneys that even still draft contracts that says surrogate throughout the whole contract. But it's all intended to be a gestational carrier.
Gotcha. Okay. So what type of patients would you say are those that you typically see? I'm sure they have all sorts of medical conditions.
What are some of the reasons they might come to seek your services? Great question. So I would say almost most of our clients have a medical reason they've gone. So, well, one, if you're talking about a heterosexual couple, they've gone through some type of infertility, dealt with infertility to a certain extent, or, you know, cancer survivors, different reasons.
There's usually some medical reason, usually, not always, but usually there's some medical reason that they're seeking the help of a gestational carrier. They've through the dealt with, worked with an IVF doctor or a clinic, or sometimes they already kind of have a medical or health issue previously, and they know they can't, they need the help of a gestational carrier in order to grow their, build their family. And so they start out knowing that from the very beginning.
And then if we're talking or working with same-sex couples, obviously they need the help of a third party for talking about male same-sex couples. And so we actually help single parents. You also have, and that's actually very important to point out.
We work with single parents as well, who, let's say, get to a point in their life where they've decided maybe they haven't met the right person. And they need help of maybe a donor, an egg donor, a sperm donor to build their family. Or maybe even they've gotten to the point where caring for whatever medical reason, I'm not a doctor, so I definitely won't go jump into that, but for whatever medical reason, it would not be safe for them to carry a pregnancy.
And they decide to go the surrogacy route. Yeah. So we work with basically patients or clients from all walks of life, honestly.
So how often do people talk with you when they're considering using an egg donor? Is that a common thing? Yes, absolutely. Because they're very state to state. Yeah.
It's actually, so across the board, I would say, so an attorney absolutely is necessary in an egg donation process or at least a legal contract. So sometimes when we have closed donations or donor banks, sometimes they have standard contracts that they use. So usually there is some type of legal element to an egg donation journey.
And that reason is because eggs ultimately, when, so they're property under the law, they're considered property of the law. We want them to be property under the law. And so when egg retrieval occurs, we need to transfer the ownership or property ownership in those eggs.
And so you need a contract in place to ultimately say, so when a woman donates her eggs, that she's actually donating these to another person or individual or couple to use them. And that once the retrieval occurs, they legally own them and they could ultimately use them to create embryos and ultimately have a child. And it protects that couple or individuals parentage to that child that's ultimately born.
The other fundamental reason why an attorney is involved, or there's a contract, it also potentially discusses whether there's future contacts, you know, whether there's going to be disclosure, non-disclosure. And that's been changing over the years. Can you kind of go into that a little bit? So throughout the years, so I think historically in the egg donor or sperm donation world, there was a lot of what we called historically is anonymous donations.
I say historically anonymous donations is because the word anonymity doesn't truly exist anymore in all honesty. And so we'd like to say identified or non-identified or known or unknown donor. And I think that's the difference before we would say anonymous, semi-open or open donations.
And what an anonymous donation historically was, is a donation that occurs where you do not know the identity of the donor. There's no intention for future contact or to discover the contact or find out who the donor is in the future or the parents and vice versa. So with anonymous donations, there is the idea that in the future, this child has no right to know where their genetics comes from, who they are, where their culture is, their background, the genetic, their medical, all of those things.
And there's been a big push over the past, I would say 10 years or even a little bit more that donor conceived children have a right to know where they come from and where their genetics are. And so the push or I guess the legal world, I mean, Colorado just passed big, big law that's a donor conceived bill that basically bans anonymous donations. You can't do anonymous, it's open donations now.
There needs to be a known donation. They need to know who the donors are. I guess identified, we say the word identified, I think is more appropriate.
So yeah, there's this big push for at least some type of ability for the child to know or be able to find out or determine who, where their roots come from, their genetic, their biology comes from. From what I remember, and correct me if I'm wrong, but I think this happened back in the UK quite a while ago. They require that all donors were known to some extent.
In other words, donor registry. And when the child became of age, they had the opportunity to go find their parents. Yeah, yeah, absolutely.
And actually there's in the US, so Colorado just passed a statute. California has a statute that basically there's disclosure agreements that you sign with the clinic, whether you agree to be disclosed or not, is the donor would sign a document. So if the child comes back in the future and wants the identity of the donor, the donor didn't sign a disclosure form or nondisclosure form or signed off that she agrees that the clinic can release her identity.
So that's something that all donors will sign in California clinics. It's like a nondisclosure document. Yeah.
So it's becoming more and more of important topic and important thing to discuss. I will say this, I think for patients starting a journey, it's a very, if you're considering using a donor, it's very, very, very important to discuss or think about or contemplate how you feel or potentially discuss especially with a mental health professional on what your feelings are with regards to future contact with a donor. Do you want the identity of the donor known? Do you want to know, do you want this donor to have potential contact with your child in the future, your child to be able to contact them? These are all questions that are really, really important.
And I think the big thing I tell my clients, you might not know how you feel right now. It can evolve. You might have this idea like, oh, I wouldn't feel comfortable with that.
I'm not sure what if the donor comes back and wants to have a relationship with my child. And those are very valid concerns that I would absolutely encourage that patient to talk to mental health about. But your feelings can absolutely change.
Once your child is born, you may feel completely different. You might feel the opposite way. And so it's okay for it to change.
And I think it's very important in legal and what we do in contracts is we address these things. And I always like to leave the language a little bit organic and leave it open to where there's the possibility that there can be communication in the future, just in case someone changes their mind. Another really important topic, I think, as it relates to that is what you agree or what you agree to in a contract about future contact doesn't mean it's going to happen in the future.
And I think it's important reality for patients. If you think I'm going to go into this, like this donor's agreeing, like if my child reaches out to her at the age of 18 or the egg donor at the age of 18, that this egg donor is going to communicate with my child. You can't really force someone to talk to you if they don't want to talk to you.
So I think the reality of knowing that and understanding that going into it is really important. And that's also where legal comes in, is really explaining that from a legal perspective, what your rights are and what you don't have rights to, or what can you force someone to do or not do. And the reality of that, there's so many things that you can put into a contract, but really when it comes to it in real life, is this really enforceable or not enforceable? And of course, coupled with mental health, I think is really important in starting this process and things to consider, understand and know.
I think another big thing about attorneys in our job is setting expectations and the reality of things from the life perspective. And I think that's important, is setting expectations. Like, what are you really getting into? What are your rights? What's enforceable? What's not enforceable? Because I do think that will make for a very different experience.
And if you have a clearer understanding of what the expectation or what the reality is, I do think it creates for a better, I think a healthier and smoother journey in setting expectations. Excellent. Expectation is so important.
I would say, and tell me if you agree with this, that pretty much the guiding light here is what is in the best interest of the child. Yes, absolutely. Is that really where we should be focused? And I think really that's where the law is.
That's where the push for disclosure, no identity, is yeah, absolutely. Because everything falls down to the best interest of the child, especially in the legal world. And family law courts, it's the best interest of the child is what matters.
Well, in closing here, what I'd like you to do is think of kind of the case that had the most impact in your life where you thought, yes, I did such a great job here. I'm so happy with this outcome. Give us just one example of a case you've had.
I know you've had many, many, many over the years where you said, you know what, this is pretty cool. I'm really happy I was involved with this. Oh my goodness.
That's a great question. So I'll tell you, I've done thousands of cases in my career and I've done cases that have been the most straightforward, streamlined, and most of them are that way, right? So most of them are very, but I will mention one that happened more recently just because it's fresh in my mind and I think it really emotionally impacted me. So I had a case, so there's some evolvements in the Texas courts lately where they've been a little bit more stringent on their rules and the parentage process.
So there's something in the statute, basically the statute in Texas. So Texas does have a very clear surrogacy statute. It's specific to a married couple that have a medical necessity.
There is a requirement, well, basically part of the statute says that the court, that a home study will be done in establishing parentage. So they kind of adapt the adoption statutes on gestational carry arrangement, which I think are very two distinct things, but the courts and the law in Texas has just written this way, that a home study will be done, but it can be waived at the discretion of the court. And historically the courts in Texas have waived this, unless there was a reason that they would require a home study, but generally they waived it.
And more recently for, I won't get into why, because I think that's a whole different discussion that we would need a whole nother hour for, but the courts have been a little bit more strict in requiring this home study, not requiring the home study, but wanting more information about who the intended parents are when establishing parents or issuing these parentage orders. Because at the end of the day, they are looking at the best interests of the child and making sure that they're issuing these parentage orders in a way that is protecting this child that's not unborn child, really at the end of the day, and making sure that this child is entering into a home that's safe, right? That it's in the best interests of the child, which is very fair and absolutely. We had a case recently where I had a couple that lived in Texas.
The intended mother had gone through years of infertility, a very, very tough journey for her, finally got to the point where her child was expected to be born by a gestational carrier within about eight weeks of this. Well, I'll say this, we filed the case with the court at some point during the pregnancy, and then we had a court hearing, Texas is now requiring in some counties, court hearings. So we had a court hearing.
So as of the court hearing, the baby was expected to be born about eight weeks after that, the due date. It was just kind of a very emotional day for everybody. Just finally, this is the point where she's going to be established.
She's married, her and her husband are the biological parents of this child. They use a gestational carrier, had a wonderful journey with their surrogate. It was a great, great relationship.
Surrogate has been amazing throughout the process. Great parents. We go to the court hearing.
We had filed information to the court to let them know who these parents are, to get a snapshot of who these parents are. So they know we're asking the court to waive this home study, but they'd have some information about who these parents are. And without saying too much, because obviously I cannot do too much in identifying or providing information about them, but they had very successful careers where extensive background checks were necessary in their career paths.
And I will say this, the intended mother was a licensed psychologist, highly educated, had a PhD and had worked with children in her career path. Intended father had a very, I'll say this, he worked for the federal government in a high position. We get to this court hearing and this judge didn't look at any of the documents, didn't care.
And basically in the meanest way possible said, I'll say this, mean, probably not from the judge's perspective, but from our perspective, or from the intended mom's perspective, felt mean, go get a home study. I don't care. I don't care what's here.
I don't care what's written. They could be fine people. Go get a home study.
I'm not waiving it. Don't challenge my ruling. So after everything they'd been through, now they had to go do a potentially a home study where someone would come into their home and have to basically write a letter or evaluation saying that they were qualified to be parents of their own child that's expected to be born in eight weeks.
And to emotionally go through that would be gut, absolutely gut-wrenching in this final hours, right? And long story short to say this, is we were able to ultimately get that parentage order signed. Actually it was more recent. I think the baby's due next month and we got the parentage order already.
We were able to kind of figure out a solution to the big problem. And we got the parentage order signed and to be able to call that intended mom and tell her, Hey, we got your court order without you having to do the home study was pretty incredible moment. And honestly they had no problem doing that home study.
It was just the emotional, because they weren't mentally prepared for it. And so that was powerful for me. They were thrilled to have you in their corner at that point.
Yes, I definitely was very passionate about making this happen for them. And I think, I will say this, this is a very rewarding field of law. And I'm sure as on the medical side, you know that it's rewarding compared to other fields of law as most people can imagine.
This is just, there's usually a happy ending and most fields of law, that's not necessarily the case. You have a winner and a loser, or at least if there's a winner that I don't know if they're really winners, right? Especially in family law. So this is an area of the law where we're, we're doing something, it's rewarding.
You know, we have, and I'm sure again, from the medical side, you feel this, you have patients or clients who come, they contact us and they've been through a lot. Most of the time they've been through a lot. It's the same tech couple, but they've been through a lot.
And you know, a year and a half, two years later, they're carrying a baby and seeing, talking to them then, seeing that transition is incredible. It's a great feeling, isn't it? So absolutely. I know exactly what you're saying.
Well, thank you so much for all the time you've spent here today with us. You've done a great job on the Southern Executive Council and we appreciate your intelligence and all your insight. You brought so much to this field.
Any closing, closing remarks for us? Absolutely. So I would say, thank you so much. I'm so honored to be here.
Thank you for all the hard work that all of you do on SART. I think it's incredible and it brings so much value to the patients. And I think that at the end of the day is the most important thing.
I also will say this. I know that starting a surrogacy or, you know, considering working with a gestational carrier can be a very daunting and maybe overwhelming feeling. And I will say this to parents that it's, it's possible.
We see it happen every day. Again, we've had thousands of clients go through the process. I would say engage very experienced professionals throughout the journey and it will really make for an incredible and really increase the chances of having a smooth, non-stressful journey, honestly.
Excellent. Well, thanks again. We certainly appreciate it.
This is Timothy Hickman, past SART president, signing off on this edition. Thanks so much. Thanks.
Bye. Bye. The information and opinions expressed in this podcast do not necessarily reflect those of ASRM and its affiliates.
These are provided as a source of general information and are not a substitute for consultation with a physician.
