09 Apr 2013 Expert ART Attorneys Guide Intended Parents Through Legal Complexities
The following article by Rich Vaughn was published April 2 by Global IVF.
As opportunities for creating families have expanded with the advancement of assisted reproductive technology, we at International Fertility Law Group have seen the number of intended parents from all over the world grow exponentially. Often the biggest obstacles encountered by intended parents are created by the specific requirements of the laws governing assisted reproduction and establishment of parental rights, either in the country where the intended parents reside or in the country where their surrogate resides. Because laws governing ART vary widely from country to country, state to state, and because local laws are rarely up-to-date with the rapidly changing technology, it is essential that intended parents understand what steps they need to take in order to ensure their babies are legal citizens of the country in which they will reside and that the parents are legally recognized as such. Although every family’s situation is unique, there are issues to consider and steps you can take to make the process of securing your family as easy and trouble-free as possible.
We advise any intended parent to talk to a lawyer before beginning any ART process. Your and your family’s future security are at stake. Most attorneys specializing in assisted reproductive technology will offer a free initial consultation to orient you to the ART process, the recommended legal services, and payment options.
For intended parents who reside outside of the United States, additional apostilled documents and newborn passports are usually needed in order for you to travel home with your baby, to be legally recognized as your baby’s parent, and to have your baby recognized as a legal citizen of your home country. For that reason it is essential that you retain an immigration and family law attorney in your home country, who will work with your ART legal team to properly coordinate the acquisition of all required documents.
Most intended parents will work with a licensed, qualified agency or fertility clinic to help identify and retain a surrogate and/or egg, embryo or sperm donor. Laws governing surrogacy and donors vary from country to country and from state to state within the United States. For that reason, it is important that your surrogate/donor agency and legal team are familiar with any legal restrictions that may impact your surrogate or donor selection. An experienced ART attorney will prepare proper donor or surrogate agreements in accordance with the state or country in which your surrogate or donor resides. Only after your physician has received the properly executed legal agreements will he or she begin the egg fertilization or insemination procedure.
Court order for Parental Establishment
In most U.S. states, a court order is necessary to establish and confirm parental rights to a child born via surrogacy. In many states , you can petition the court to legally establish you as your baby’s legal parent prior to the birth. In some states, you cannot file the parental establishment petition until after birth, and a different process will be followed. It is essential that you work with legal counsel familiar with laws governing parental establishment in your locale.
Confer with Birth Hospital
Prior to your baby’s birth, you will need to meet with the hospital social worker to ensure you are recognized as your baby’s parent when the birth occurs and that the hospital staff completes the associated paperwork in accordance with the court order for parental establishment.
Parents living in the United States typically receive their baby’s official birth certificate by mail approximately six to eight weeks following the birth. However, parents who reside in another country may not be able to wait that long to return home with their baby. In that case, your legal team will need to work with hospital staff and their legal team to obtain an expedited birth certificate. Once the birth certificate is in hand, parents can obtain a passport for their baby and return home.
Once you have received your baby’s birth certificate, you must obtain a newborn passport in order to travel home with your baby. This application can be completed online or downloaded and printed from the website here, or downloaded and printed from the U.S. Department of State’s website. Typically your passport will be received within two weeks.
If your plans require you to return home with your baby sooner, an experienced ART attorney will be able to help you obtain an expedited passport, usually with the support of a passport expediting service such as A Briggs. An expedited passport will typically be received within three to five days.
Alternatively, if you plan to return to your home country in less than two weeks, you are eligible to schedule an in-person appointment at a regional passport office of the U.S. State Department (check the U.S. State Department website for a listing of these regional offices). To schedule an appointment to receive an expedited passport, call 1 (877) 487-2778. An additional fee will apply, and you may be asked to provide proof of your travel plans. By applying in-person for an expedited passport, you may be able to obtain your passport in as little as one to two days.
Apart from having a healthy, happy baby or babies, nothing is more important to families than the knowledge they are legally recognized as a family in their home country. Retaining the services of an attorney who is experienced in ART and family formation law is an investment in your family’s future security and in your peace of mind.