For nearly 40 years, fertility treatment has grown ever more advanced and so entrenched that it’s not uncommon for couples to begin their families in their late 30s, 40s or even 50s, producing much older parents.
Much older parents… But even as questions about the technology to extend fertility have been answered — yes, children born through in vitro fertilization are healthy; yes, freezing embryos appears to be safe; yes, mothers can generally deliver babies safely well beyond the classic childbearing years — another important question is emerging: How old is too old for their offspring?
Offspring like Hayley, the 10-year-old daughter of a 58-year-old, Ann Skye.
“I knew that she was going to really need to build her own support system in life, or potentially would need to,” said Skye, who lives in North Carolina and works in public health. “I think that has really impacted the way we parented her. We were strong proponents of letting her cry [herself] to sleep for that same reason: She needs to be able to self-soothe.”
In December, two prominent psychologists and two reproductive endocrinologists published an opinion paper in the Journal of Assisted Reproduction and Genetics questioning whether it was time to establish age restrictions in the field. They wrote that research has shown that children often experience social awkwardness if their parents are a half-century older than them and face greater risk of autism and psychopathologies. These children are also more likely to serve in a caregiving role and experience bereavement as adolescents or teens compared with their peers whose parents gave birth in their 20s and 30s, they wrote.
Do those risks constitute the potential for “great harm” to the child and outweigh a person’s right to “reproduce without limitation or interference” at any age, the authors asked.
“It is a self-perpetuating issue; the more older patients that seek [fertility] treatment, the more people feel that it is reasonable to seek treatment, especially in an age where sensational births are widely celebrated as positive events in the media,” they wrote.
In the United States, the number of live births to mothers ages 45 to 49 increased from 3,045 in 1996 to 8,257 in 2016, and the number to mothers ages 50 to 54 increased from 144 births to 786 births over the same time period, according to the National Center for Health Statistics. The average age of women becoming mothers in the United States is now 26, up from 23 in 1994, according to the Pew Research Center.
WashingtonPost.com, May 30, 2020 by Eric Berger
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Fertility clinics stay open – Many providers have continued seeing patients through the pandemic, forcing them to choose between clients and staff safety.
Since March, fertility stay open clinics across the country have halted treatments for tens of thousands of people because of Covid-19, forcing patients to suspend their family planning. In recent days, some clinics have reopened, resuming services and procedures despite ongoing coronavirus concerns.
But shifting guidelines and minimal oversight have left clinics to decide for themselves when and how to resume in vitro fertilization, or I.V.F. At clinics where I.V.F. is ramping back up, or never slowed at all, some staff members are concerned about a lack of adequate protective equipment and safety policies.
On April 24, the American Society for Reproductive Medicine issued recommendations for restarting operations, leaving it up to individual clinics to determine how to proceed. The professional society had previously advised fertility clinics to avoid starting new treatments, postpone nonemergency surgeries and shift to telemedicine.
The shutdown generated a flurry of media attention and pushbackfrom fertility doctors and patients. Most clinics paused starting new I.V.F. cycles, which are highly time-sensitive. But a few remained open, even operating at full capacity, causing the industry to debate when to resume care and what counts as medically urgent.
“Fertility treatment is by no means elective,” said Leyla Bilali, a nurse at a fertility clinic in New York City, referring to the consensus that infertility is a disease. “It’s just, right now, it’s not a matter of life or death.”
Clinics that stayed open scrambled to implement protocols compliant with the Centers for Disease Control and Prevention, such as temperature checks, masks and physical distancing. Still, people have gotten sick. At Reproductive Medicine Associates of New York, seven staff members have tested positive for Covid-19. At Vios Fertility Institute in Chicago, clinicians have reported flulike symptoms but have not been tested because of limited test availability. And several employees at Extend Fertility, an egg-freezing clinic in Midtown Manhattan, fell ill with possible cases of Covid-19.
“We really didn’t feel it was appropriate to go out on a limb, outside major A.S.R.M. guidelines, and keep things open,” said Dr. Bat-Sheva Maslow, M.D., a reproductive endocrinologist at Extend Fertility who tested positive and recovered from the virus in March. “Covid-19 is almost impossible to control at this point. That weighed very heavily with us.” Extend Fertility has since closed its offices to virtually all patients.
Amid the pandemic, clinics face a dizzying array of vague and, at times, conflicting instructions from states, cities and health agencies like the C.D.C. Doctors must interpret guidelines as they see fit — often the case in fertility services, which are largely paid out-of-pocket and where patient care and profit can be at odds.
Because of unclear guidance, in most states it is difficult to tell whether remaining open during the pandemic is legal or if fertility procedures are considered an essential service. New York is an exception: On April 7, the state’s health department issued an advisory deeming infertility treatment an essential service, thus exempt from closure. New Jersey’s governor, in an executive order responding to the coronavirus crisis, made a similar but less specific exemption, referring to general family planning services but not directly to infertility.
NYTimes.com, by Natalie Lambert, May 1, 2020
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How Coronavirus Is Affecting Surrogacy – The pandemic is not just impacting parents and pregnant people — all prospective parents are facing new challenges.
How Coronavirus Is Affecting Surrogacy – Covid-19, the disease caused by the novel coronavirus, has upended life for those who are or hope to become pregnant in the United States. Fertility doctors have indefinitely postponed all advanced fertility treatments, and some major hospitals in hard-hit areas are trying to ban partners and doulas from delivery rooms.
But the pandemic is affecting expectant parents forming families through surrogacy, foster care and adoption as well.
Global travel restrictions have left surrogacy agencies in the United States scrambling for exemptions for their international clients — particularly for those whose surrogates are scheduled to give birth in the next month or two.
Circle Surrogacy, an agency based in Boston, has 15 international clients with due dates before May 1. “We’ve had our legal team prepare letters for each of these families, which has gotten many of them into the country despite travel bans,” said Sam Hyde, the agency’s president. Still, he said, his foreign clients were at the mercy of individual immigration officials. “Some have been sympathetic to the plight of our clients, others have not — it’s really been a case-by-case basis.”
Some intended parents, as clients of surrogacy agencies are known, who are currently struggling to gain entry into the United States are hoping to do so after completing a 14-day quarantine in a country with less severe travel restrictions.
Last week, for instance, Johnny and Patty — a Chinese couple working with a surrogate living in South Carolina — traveled from Shanghai to Phnom Penh, Cambodia, to begin two weeks in isolation at a local hotel. The couple, who work for an international company and use these westernized names, asked that their last name be withheld since surrogacy is still relatively uncommon in China. They hope to complete their quarantine in time to witness the birth of their daughter, who is due in mid-April, and claim guardianship over her.
But with travel restrictions tightening seemingly daily, they worry their effort may still be in vain. “First we bought plane tickets to travel through Thailand, but now travel is restricted there,” Johnny said in an interview from their hotel on the second day of his quarantine. “Then we tried Dubai, but that is now also restricted.” Traveling via Cambodia, he said, was the couple’s “last hope” to reach the United States in time for their daughter’s birth.
Though they would be disappointed to miss the delivery, the couple said they were even more concerned, in that scenario, about the baby’s well-being in the ensuing days before they are allowed to travel. “Who will take care of our baby if we can’t arrive before she’s born?” Patty said.
Will Halm, a managing partner at International Reproductive Law Group, said surrogacy agencies were creating contingency plans for clients living abroad who may be prohibited from entering the United States over the next few months. “Plan A is absolutely to have parents in the U.S., joyfully watching their child being born,” he said. “If they can’t get into the country in time, that’s when we look to plans B, C and D.”
In one of the better scenarios, agencies hope friends or family members living in the United States can temporarily assume guardianship of the baby until the intended parents are granted entry into the country. As a backup, however, caseworkers are also preparing strangers — health care professionals, child care providers and even surrogates themselves — to care for the newborns until travel restrictions are eased.
“These babies will not be abandoned,” said Dr. Kim Bergman, founder of Growing Generations, a surrogacy agency with dozens of international clients who may be impacted by travel bans in the coming months. “We have an army of former surrogates who are ready and eager to act as helpers and guardians for as long as necessary.”
The ongoing crisis has created an uncertain environment for foster care parents and children as well. “Basically, everything is on pause until things are back to normal,” said Trey Rabun, who works as a services supervisor at Amara, a foster care agency based in Seattle, Wash. — one of a growing number of states ordering its citizens to work from home.
Amara, whose staff members are included in the state’s proclamation, has been able to continue some aspects of the licensing process for foster parents online, such as initial interviews. But other critical components, like home inspections, need to be done in person, Rabun said.
As a result, the number of foster homes, already all too scarce in Washington before the crisis hit, will remain static for the state’s over 10,000 foster care children until the pandemic subsides and business returns to normal, Rabun said. Of bigger concern to him, and other foster care professionals throughout the country, is the impact that “stay at home” orders may have on children not yet accounted for in the system.
“We know abuse and neglect happen more in high-stress situations,” Rabun said. But the people who would normally notice and report these sorts of problem, like teachers and doctors, will be unable to do so in the days and weeks ahead. “No one has eyes on them,” he said.
With courts and other government offices closed in many states, parents who had hoped to finalize adoptions within the next couple of months are also now navigating a drastically changed landscape — particularly for parents completing adoptions abroad.
Early in the year, when the coronavirus was barely registering as a news story outside of Asia, Holt International — an agency that facilitates adoption placements between Chinese orphanages and adoptive parents in the United States — was already closely monitoring and responding to the outbreak.
NYTimes.com, by David Dodge, April 1, 2020
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The Effect of COVID-19 on LGBTQ Family Planning is evolving and far reaching. It is also temporary.
The Effect of COVID-19 on LGBTQ Family Planning – The COVID-19 pandemic has affected us all in ways more numerous to describe. Those of us with families have had to learn about home schooling, some the hard way (me). Everyone has had to adjust to what essentially has become a home quarantine situation and the emotional effects of social isolation. And we are all witness to the world going through a major change which will create a new reality for everyone when we emerge on the other side. But we will emerge on the other side.
While I myself have experienced the loss of a friend due to the virus, as well as the infection of a family member, I know that we all are doing our best to maintain a sense of normalcy and peace within. Practicing this type of self-care will help mitigate the effects of COVID-19 on LGBTQ family planning.
The effects of COVID-19 on LGBTQ family planning are very real. I have said in the past that there are no accidental pregnancies in the LGBTQ community. Everything is carefully thought out and planned in advance. However, the COVID-19 virus has created specific and real-world disruptions to our ability to create families.
For example, those were using, or planning to use, an IVF clinic for either surrogacy, artificial insemination (AI), intrauterine insemination (IUI) or in vitro fertilization (IVF) procedures have experienced an actual shut down of normal operations. The clinic administrators that I have spoken with are optimistic that once the virus is contained, or at least the infection curve has flattened, that they will resume normal operations. For the time being, they are following ASRM guidelines. But they will also be dealing with backlogs of patients and procedures that may cause further delay in your family building timeline.
For lesbian couples who have thoughtfully chosen to use a clinic to assist in insemination, this delay is not only frustrating, it can also change the projected timeline of their families. Even those couples who choose anonymous sperm donors will most likely have to wait an indefinite period of time to undergo AI or IUI procedures. For those who choose known sperm donors, the essential DNA testing that is a prerequisite for clinic inseminations will also be on a delayed time schedule.
Gay male couples who are considering surrogacy are facing an even more complicated challenge. First, there will inevitably be a delay in the embryo creation aspect of the beginning of their journey due to IVF clinic shutdowns. If an intended parent already has embryos created, perhaps from a previous surrogacy journey, they may be in a better position. However, they will also experience a delay in embryo transfer until restrictions on IVF clinic activities are lifted. A silver lining is that they will be able to match with surrogates sooner, thereby shortening the time to pregnancy once those IVF restrictions are lifted.
Lesbian couples who choose a known sperm donor and home insemination may be the only group in our community who might not experience the delays discussed above. However, these types of inseminations will not have the benefit of genetic testing. Nor are they technically “legal” in some states (Missouri, Georgia, Oklahoma and Colorado) because they are not performed by a licensed professional. It is key that if you are considering home insemination that you consult with an Assisted Reproductive Technology (ART) attorney in your area and, for the safety and security of all parties, must have carefully prepared legal agreements in place and a second or stepparent adoption plan incorporated into that agreement.
For those in the midst of a surrogacy journey, perhaps awaiting their carrier to give birth, the effects of COVID-19 on LGBT family planning can be particularly frustrating due to travel and hospital restrictions. Many hospitals are restricting the number of people who can be in a delivery room, particularly if they have traveled from an area that has been severely affected by COVID-19, like New York, Washington or California. Be prepared for snags in the road and lots of patience. You will go home with your child! You may have to be flexible in your travel plans, i.e. be prepared for long drives instead of air travel.
For lesbian couples and gay men with surrogates who are pregnant, there is a limited study from Wuhan China showing that babies of mothers with the virus were not effected, meaning that there was no vertical transmission.
Couples considering adoptions are also at a bit of a standstill depending on where they live in the US. Most state court systems have closed to all but “essential” proceedings. While I would argue that adoptions are essential, the courts have determined that they are not. I have several cases now awaiting the scheduling of finalization hearings that are simply on hold until the pandemic subsides. This includes private placement adoptions and step or second parent adoptions. This does not mean that making connections with birth parents must be put on hold, but the legal work that is required to effectuate the adoption may be delayed, causing additional anxiety.
You may be asking what you can do to mitigate the effects of COVID-19 on LGBTQ family planning. I know that I am. Here are a few options that you can consider now.
- Make sure that your Estate Plan is in place and up to date. Ask yourself, “Do I need a Will?” If you have named guardians for children in your Wills, please review to make sure that they are current and correct. If you have not created an Estate Plan, now is a good time to do the work to ensure that you have prepared for the unexpected. Here is a list of the documents you should be considering for your estate plan. We have also seen a relaxation of Notary laws allowing for online notarizations. This can make the execution of documents much easier in certain states.
- If you have been thinking about creating your family, now is a great time to do more research. Men Having Babies is a great resource for surrogacy. “If These Ovaries Could Talk” is a wonderful podcast for all LGBTQ family planning. This should include speaking with your friends who have had children to get their perspectives on the process. It is also a really good time also to start thinking about the financial implications of having a family. Many of us will be irreparably financially harmed by the COVID-19 pandemic. Many of us will have to rethink the timelines we had anticipated would apply to our family planning journeys. You may want to meet with a financial professional to discuss the best way to get your family plan back on track.
- Practice self-care! Whether you have children or not, staying calm and finding peace in your heart will help you get through this. While you might feel alone, you are not alone. Reach out and find solace in your friends and family if you can. Take walks if you can and get outside. Remind yourself of what will be on the other side of this experience.
If you have specific questions about how to address the effects of COVID-19 on LGBTQ family planning and estate planning, and you think I can be of help, please do not hesitate to reach out to me. Thank you for taking the time to read this and remember to breathe.
The Latest Study on Regulation of Compensated Gestational Surrogacy in New York
The Latest Study on Regulation of Compensated Gestational Surrogacy in New York underscores the need to pass this legislation and shows that it would provide the most comprehensive protections for gestational carriers in the US.
This report on the regulation of compensated gestational surrogacy in New York, issued in March 2020 to the New York State Legislature by Weill Cornell Medicine and the Cornell Law School is one of the most comprehensive reports of its kind and leads the reader to now other conclusion but that New York’s pending legislation, The Child Parent Security Act, would be the most protective of gestational carriers, or surrogate mothers, of any piece of legislation in existence in the US. Surrogacy legislation can be ethical and comprehensive.
To quote from the article, “The trend among state legislatures in the United States is to permit rather than prohibit compensated gestational surrogacy. Since 2000, fifteen states and the District of Columbia have acted to explicitly permit compensated gestational surrogacy. On the other hand, only four states have taken a prohibitive approach since 2000 and two of those states permit uncompensated gestational surrogacy.”
“In forty-four states there is no prohibition on surrogacy by statute or there is explicit or implicit permission. Even in the six states that have statutes that appear to prohibit surrogacy, courts have granted pre-birth orders to intended parents and have issued other pro-surrogacy decisions. Consequently, surrogacy in varying ways, including by approving pre-birth orders.”
“In sum, the health and medical literature does not weigh in favor of continuing to prohibit gestational surrogacy in New York. There are generally no disparate health outcomes for gestational carriers as compared to non-gestational carriers using assisted reproductive technology (ART) nor are their disparate health impacts on children. Additionally, there are no disparate psychological impacts on gestational carriers as compared to women who have had spontaneously conceived pregnancies. States across the country are moving to legalize and regulate gestational surrogacy in the last decade.”
March 20, 2020 by Cornell Weill Medical Center and Law School
Click here to read the entire article.
More and more cases of fertility fraud have been uncovered. And more and more lawsuits have been filed. However, each prosecution or lawsuit has faced an uphill battle.
Direct-to-consumer DNA kits have changed our reality. The wall of secrecy that was once behind conception and parenting — including adoptions, affairs, and the use of donor eggs, sperm, and embryos — is crumbling. One major facet of this reckoning with the truth has been the stark realization that many, many doctors were using their own sperm, a form of fertility fraud, to “treat” their unknowing patients.
Sometimes this practice was in place of “anonymous donor” sperm; sometimes, it was actually in place of the spouse or partner’s sperm. It’s pretty gross to think about. But even grosser is the complete lack of accountability for the doctors who must have known of the ethical and moral shortcomings of their actions.
The Justice System Has Been Failing Us
A doctor using his own sperm to impregnate a patient, without her knowledge or consent as to the source of the sperm, must be a crime, right? Or at least a pretty solid tort – fertility fraud? For many states, you guessed wrong. More and more cases of those doctors’ egregious practices have been uncovered. And more and more lawsuits have been filed. However, each prosecution or lawsuit has faced an uphill battle.
Take, for example, the case of Donald Cline, formerly a licensed medical doctor in Indiana. In one of the most notorious cases of fertility fraud in the United States, DNA tests have shown Cline to have used his sperm in unknowing patients, resulting in at least sixty children. When the betrayed patients and offspring sought legal remedies against Cline, they were unsuccessful. After all, the patients had consented to Cline inseminating them with sperm. Cline did plead guilty to two charges of obstruction of justice, after lying to officials about using his own sperm with patients. But that, to most victims, was not sufficient.
Time To Change The Law
Since current law has been failing the victims, many have sought, and are currently seeking, to change the law. State by state, if necessary. Last year, two successful bills were passed. One was in Indiana, unsurprisingly, as ground zero of the Cline fiasco. Another was in Texas, where Eve Wiley led the charge. (Listen to this podcast where Wiley and her believed-donor tell the twisting and fascinating tale of uncovering the truth of Wiley’s genetic history.) In Texas, without a civil cause of action due to the state’s recent tort reforms, and without a viable criminal cause of action to charge him, Wiley’s “doctor daddy” is still actively practicing medicine even today. That’s crazytown.
Now other states are following suit, and closing the legal loopholes that existed for doctors to take advantage of their patients in this most intimate of areas. And while I doubt that as many doctors are so casually using their own sperm these days, there are certainly modern horror stories involving assisted reproduction, including that of a staff member at a Utah clinic swapping out countless sperm samples with his own.
The states currently making progress in this area include my own home state of Colorado with HB20-1014 (Go, Representative Kerry Tipper!), Nebraska with LB 748, Ohio with HB 486, and Florida with SB 698. Other states, as well, appear poised to introduce their own fertility fraud legislation. While the proposed laws vary, they are consistent in their goals of ensuring or clarifying that this type of behavior by trusted medical professionals is not acceptable and not legal, and providing a path forward for justice.
AboveTheLaw.com, by Ellen Trachman, February 12, 2020
Click here to read the entire article.
The bill passed by the French Senate is watered down but still extremely transgressive.
The French Senate adopted the draft bioethics law currently under discussion in that body by a relatively small margin of 10 votes on Tuesday. One of its most spectacular elements, the legalization of access to artificially assisted procreation for single women, including those in lesbian relationships, was confirmed, as well as the widening of possibilities for research on human embryos. Other articles of the law were modified by the Senate, which canceled some of its more shocking propositions.
Although the higher chamber in France still has a right-of-center majority, the text, which remains deeply transgressive, obtained 153 votes in its favor, while 143 senators voted against and 45 abstained. The voting was not uniform right and left — 97 of the 144 “Les Républicains” mainstream right-wing senators rejected the law presented by Emmanuel Macron’s left-wing government, while 25 voted for the text, thus bearing responsibility for its adoption.
The presidential party “La République en marche” (LREM), created for the last presidential election and not very strong in the Senate, was itself divided: six of its 24 senators voted against the text.
Almost all the 348 senators were present, a sign that the revision of France’s bioethics laws is being taken seriously. The first such law was adopted in 1994 and was already transgressive because it legalized artificial procreation and embryo selection.
From the start, it was decided that the bioethics law would be revised every five years in order to take medical and scientific progress and new techniques into account. As a matter of fact, the laws were revised over larger intervals. Each time, new possibilities for embryo research, pre-implantation diagnosis, and other such transgressions were added.
The draft bioethics law now being discussed has been substantially amended by the Senate and will therefore return before the National Assembly, probably in April. Laws are adopted definitively without a second reading in France only when adopted by both chambers in exactly the same terms.
Lifestienews.com, by Jeanne Smits, February 7, 2020
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Fertility benefits rank high on the list of valuable benefits that make recruiting top talent, retaining valuable employees, and reducing turnover easier. Providing coverage for family building options has been shown to increase employee retention and loyalty.
According to a recent FertilityIQ survey, 68 percent of millennials consider fertility benefits when choosing an employer, and 9 out of 10 employees with fertility issues will switch jobs for benefits.
This scenario was very true for millennial, Katie Goad and her husband Adam. They had an 8-year-old daughter and wanted to expand their family. After giving birth to her first child, Katie had surgery that meant she would have to undergo in vitro fertilization (IVF) in order to have another child.
Lacking insurance for IVF, Katie was determined to expand her family without going into debt in the process, so she explored her employment options and discovered that Starbucks offered benefits to cover IVF, even to hourly, frontline workers. Starbucks is revered for being among the first to provide fertility benefits to hourly and part-time employees.
“I was honest with them in my interview about what my goal was, and what my intentions were,” Goad said in a recent interview with Benefit News.
She landed the job and started working as a part-time barista.
In a recent survey, FertilityIQ, author of the extensive Family Builder Workplace Index, found that 73 percent of fertility patient respondents felt more gratitude toward their employer because of fertility benefits, 61 percent said it made them feel more loyal, and 53 percent said it influenced them to stay with a particular employer longer.
“In this tight labor market, millennials are entering the family building years and flooding the workforce. Companies eager to recruit top talent know that offering fertility benefits, paid parental leave, and flexible schedules fosters a great sense of loyalty,” said Patty Stull, Chief Marketing Officer of SGF.
Once Katie qualified for health benefits through Starbucks, she began fertility testing and treatment under the care of Dr. Mark Perloe at Shady Grove Fertility Atlanta.