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One of the most important decisions intended parents and donors make in an egg donation is the level of openness and the degree of anonymity. Openness refers to future communication. Anonymity means whether the donation is identified or anonymous. This decision affects not only the egg donor and the intended parents, but also the future children resulting from a donation. Some research shows that it may be beneficial for the mental health of donor-conceived children to know more about their donors, and that concealing the donation may result in feelings of shame or mistrust when the donation is discovered. A recent survey also found donors and donor-conceived children prefer contact in the future. Furthermore, as technology increases with better facial recognition software and more prevalent DNA testing, anonymous donations are no longer guaranteed to be anonymous. Nonetheless, known donations can cause fear of uncertainty for intended parents and donor however, as parties may fear intrusive future contact, as popularized in fictional media. At Tsong Law Group, we discuss all options of openness and anonymity with our clients when we prepare an egg donation agreement and draft or review the agreement accordingly. In this article, we discuss the differences in the options you may choose as you move forward. It must be noted that the degree of openness or personal information shared ultimately depends on what both parties are willing to agree to. Anonymous or Closed Donor Arrangement An anonymous or closed donor arrangement is the traditional type of egg donation that was once the only option available to intended parents and compensated egg donors. In an anonymous or closed donation, the intended parents will choose an egg donor while knowing information such as education, age, blood type, and physical characteristics, and the egg donor will know nothing about the intended parents. When it comes to disclosure, both parties will be protected by confidentiality. Neither party will receive identifying nor contact information for each other, and the clinic, agency and attorneys will preserve the anonymity of the parties. The drawbacks for this type of arrangement include that future communication may be unavailable if the child has medical issues that have a genetic component where the donor might be able to assist or vice versa, if the child learns of the donation and wishes to contact the donor, if the donor has curiosity or a desire to know the child in the future, or if the intended parents discover inaccuracies in the donor profile. Note that recent laws in states such as California may allow the donor to communicate with a child that seeks them out when the child is 18. Semi-open Donor Arrangement Considering the drawbacks of an anonymous, closed donor arrangement, the semi-open donor arrangement mitigates some of these drawbacks while minimizing fear of intrusiveness by either party. In this type of donor arrangement, the arrangement remains anonymous. The parties will not receive full names, phone numbers, or other contact information of the other party. When it comes to future communication, there may be an intermediary for future contact such as the agency or attorneys, or a portal such as Donor Sibling Registry where both parties can register and communicate anonymously. Sometimes the parties may choose to exchange anonymous email addresses. Generally, these arrangements require the intended parents to notify the donor of a successful birth including date of birth, and successful pregnancy. The parties are not required to respond to any contact they receive from the other. Choosing this type of donor agreement allows intended parents to have potential future contact with the egg donor. This may also transition to open donation if the parties choose to identify themselves. The potential drawbacks to this arrangement are that there may be additional costs for joining a portal, or the agency or attorneys may not agree to the contact or may charge to facilitate it, and there is no guarantee there will be any response or that the message will even be checked by the other party. Open Donor Arrangement The third type of arrangement, the open donation, is less common in compensated egg donation but is becoming more common and acceptable. In fact, Colorado has passed legislation requiring donations to be open in the future. In this type of arrangement, the parties will be provided with each other’s identifying information including their full names, and phone and/or email addresses. When it comes to communication, it allows the parties to have direct communication potentially throughout the life of a child born via egg donation. However, this arrangement does not guarantee ongoing contact. The egg donation agreement should have a process for one party to request contact cease if contact is no longer required. The contract should also make clear that certain conduct, such as the donor being referred to as a parent or mother, will not be acceptable. If you are planning an egg donation, contact a fertility lawyer who is experienced in egg donation and versed in the different options for openness and anonymity. Attorney Ralph Tsong has been accepted into the Academy Adoption & Assisted Reproduction Attorneys (AAAA) and Academy of California Adoption-ART Lawyers (ACAL) and can handle your case with ease and efficiency. If you need assistance, contact us now. This article is for informational purposes only and should not be relied upon without additional research or consulting an attorney. This article is not legal advice and does not create an attorney-client relationship with the reader.

The Wrong Mother is a drama thriller movie produced by Reel One Pictures in 2017. It stars Vanessa Marcil as Kaylene, Brooke Nevin as Vanessa, and Stephen Snedden as Kaylene's husband Drew. The movie revolves around Vanessa, who is apparently a nurse, who provides home care to Kaylene, the mother of two who is happily married to commercial pilot Drew after she is a victim of a hit and run. Vanessa soon seeks to usurp Kaylene’s role as mother and wife of Drew while keeping Kaylene drugged and isolated from her family. Spoiler alert: Turns out Vanessa is Kaylene’s anonymous egg donor and after Vanessa learns she cannot have children of her own due to lack of egg reserve, she goes crazy, uses her guiles to find out information about her intended parents and plots to upend their lives. (It doesn’t appear to cross Vanessa’s mind she could be an intended parent through egg donation herself.) Vanessa’s end game is to be the mother of Kaylene and Drew’s kids, and she will go to any lengths to remove anyone who is in the way of her plans. Legal and Other Accuracy I’m not sure any lawyers were consulted in this movie. Vanessa’s actions are operating on the theory that “possession is 9/10th of the law” which is not actually grounded in law at all. In reality, egg donors sign a contract in which they relinquish all legal rights or responsibilities to any resulting children or embryos. If Vanessa donated eggs in a typical contract situation, she would have her own attorney who would make sure she read the contract and understood it. Vanessa can’t reverse the donation because Kaylene is legally the birth mother as a result of being the natural parent of the child, and being on the birth certificate. While it is a fear of expressed by some intended parents entering into an egg donation, especially a known donation, that their egg donor might seek to become a parent to the children, I am not aware of any instance of this happening, nor am I aware of any donors replacing intended mothers. Furthermore, egg donors receive psychological and medical screenings and should receive an explanation during those screening exactly what they are doing. Egg donors also understand, via the egg donation contract, that there may be medical and psychological complications as a result of the egg donation and agree to assume those risks. If you are wondering, there does not appear to be a medical correlation between egg donation and depletion of ovarian reserve. Conclusion: We wanted to review this movie because there are a lot of similar movies about surrogacy with the Fatal Attraction formula where the surrogate lives with the family, and tries to seduce the husband and kill/take over the role of the wife, yet this one was about an egg donor, and maybe it would be different in some way. Unfortunately, it isn’t different and its potential “campiness” appeal is limited by its slow-moving pace and Lifetime movie-style predictability. It would have been an interesting take if Vanessa, upon learning of her own infertility and obtaining information about the children, the movie shifted and considered what would the legal outcome be of an egg donor who makes a claim of maternity via a DNA test (spoiler: she would likely lose). But that would prevent a Cape Fear/Single White Female kind of thriller that The Wrong Mother was aiming for. The movie is not to be taken seriously. If you are a donor or parent through egg donation with a sense of humor who feels left out that there are a lot of cheesy surrogacy thrillers but almost none about egg donors, check it out and let us know how you feel about the movie. The movie is available to watch on Freevee on Prime Video. This article is for informational purposes only and should not be relied upon without additional research or consulting an attorney. This article is not legal advice and does not create an attorney-client relationship with the reader.

Thanks to the Child-Parent Security Act (CPSA) which became effective in 2021, New York became the 48th state in the United States to legalizecommercial surrogacy.If you choose to establish legal parental rights through assisted reproductive technology (ART) in the Empire State, here are the legal requirements for pursuing a surrogate located in New York: The parties need to have separate independent counsel of their own choosing throughout the surrogacy agreement drafting and negotiation. The spouse of the surrogate must be a party to the surrogacy agreement unless they are separated pursuant to a written agreement of separation or have lived apart at least three years; The parties must sign the surrogacy agreement before two witnesses and prior to commencement of medical procedures or medication; If the surrogate is compensated, the funds for base compensation and anticipated expenses must be placed into an escrow account prior to any medical procedure other than medical evaluations to determine a surrogate’s eligibility; The surrogacy agreement must disclose how the intended parents will cover medical expenses, and any health insurance plan must be reviewed and summarized; The parties must be identified, as well as the source of the gametes used; The surrogacy agency must be licensed and registered in New York and their contact information provided; The attorneys need to be identified and the surrogate must acknowledge that she received the Surrogate’s Bill of Rights from her attorney. Under New York Law, the Surrogate Bill of Rights providesthe surrogate has a right to: Make all health and welfare decisions about themselves and pregnancy including: - The right to make decisions to continue or end a pregnancy, - Choice of a healthcare practitioner, - Number of embryos transferred, and - The right to consent cesarean delivery; Have an independent New York licensed attorney paid for by intended parents; Comprehensive health insurance coverage that covers the entire surrogacy process, mental health coverage, and twelve months after the childbirth or end of pregnancy which the intended parents shall pay for a compensated surrogate’s out-of-pocket medical expenses during the same time frame; A life insurance policy of at least $750,000 extending twelve months after birth or termination of pregnancy; A right to terminate a surrogacy agreement before pregnancy. In addition, the intended parents must agree to execute a will prior to the embryo transfer designating a guardian for the resulting children. There are additional requirements which we have not discussed for purposes of brevity. Fulfilling all legal requirements makes each intended parent a parent of the child by law and neither the surrogate nor spouse will be a parent of the child. To obtain a prebirth order in New York, as of the date of this writing, at least one intended parent must be a US citizen or permanent resident and a resident of New York and the surrogate must be a New York resident. If you have read this far and have followed our other blog articles, you might notice that New York imposes additional requirements above and beyond those of other states we are licensed in, including California, Illinois and Washington state. That is true. New York prides itself on having a robust, surrogate-friendly law and is unique by offering a Surrogate’s Bill of Rights. If you are interested in a surrogate or egg donation within New York state, please contact Tsong Law Group and we will assist you.

Released in 2015, “Baby Steps” is written and directed by Barney Cheng who also plays the lead character as Danny Lee. The film was featured in a Q&A with the director at the 2018 Men Having Babies conference in San Francisco. This multicultural comedy-drama film takes its audience on an emotional rollercoaster that highlights the challenges experienced by individuals pursuing parenthood through surrogacy. Synopsis The film follows the life of Danny, a successful Taiwanese-American man, and his American partner Tate (played by Michael Adam Hamilton). Danny longs to become a father, but the path to parenthood is not straightforward for him. “Baby Steps” explores Danny's decision to pursue surrogacy as a means to fulfill their dream of having a child. When Danny’s traditional Taiwanese mother, Ma (played by Ya-Lei Kuei), finds out about their plan, she is horrified and tries to stop them. Upon realizing Danny’s unwavering determination, Ma shifts to micromanaging all aspects of the delicate situation. Ma’s unwillingness to accept a less-than-perfect candidate, leads the parties to travel around the world to Taipei, Bangkok, Mumbai and Los Angeles in search of the ideal gestational surrogate. What’s Realistic About This Film? “Baby Steps” depicts the realities of surrogacy and assisted reproductions. It portrays the journey of a gay man and his partner who embark on a path to parenthood through surrogacy and assisted reproduction. The film effectively highlights the emotional rollercoaster that intended parents often experience while navigating the complexities of Assisted Reproductive Technology (ART), including choosing a surrogate, addressing legal hurdles, and dealing with societal perceptions. While this film focuses on describing a gay couple’s journey navigating the world of surrogacy, it also touches on the resiliency of single intended parents. Danny’s drive to become a parent no matter the obstacles thrown in his way, over his mother and even prioritizing it over his relationship with Tate, is a virtue we see in some of our intended parents and was seen in the film Together Together. Like other single intended parents, Danny will not be discouraged by the judgments of society or the difficulties of being a single parent, he just knows he wants to be a dad and that love will be enough. Aside from surrogacy, another noteworthy aspect of "Baby Steps" is its exploration of cultural identity and the challenges faced by LGBTQ+ individuals within traditional family structures. Through Danny’s turbulent relationship with his Ma, a tiger mom who embodies traditional Taiwanese values, the film portrays the cultural clash Danny experiences as he reconciles his Taiwanese roots with his American lifestyle. Throughout the film, viewers see how Ma struggles to accept Danny’s sexuality and his decision to pursue parenthood through surrogacy. In fact, Ma forces Danny to hide his sexuality and surrogacy journey from his Taiwanese extended family and friends in fear of being judged. All in all, the film sheds light on the importance of acceptance, understanding, and open dialogue within families, and the power of love to bridge cultural and generational gaps. How Accurate is it from a Legal Standpoint? The film does not involve any discussion of the legal aspects of surrogacy, however, legality looms large with trying to navigate international surrogacy. This is especially seen when the law changes in Mumbai, India. Danny and Tate are no longer able to proceed with their surrogacy journey in India because of an amendment to the law that only allows married heterosexual couples to pursue surrogacy in India. (Note, India does not allow commercial surrogacy to non-Indian citizens at this time.) As a result, Danny and Tate are forced to reconsider how and where to proceed with their surrogacy journey. Moreover, there is some exploration about whether an intended parent can really monitor the activity of a surrogate in the United States. This is shown in the beginning of the film when Danny and Ma are looking at surrogate candidates and Ma is doing everything in her power to find the perfect surrogate for her first grandchild, even following a potential surrogate home to spy on her private life. When Danny finds out, he reprimands Ma and explains that an American surrogate cannot be micromanaged. Conclusion “Baby Steps” not only touches the hearts of its viewers, but also sheds light on the emotional journey and legal complexities associated with surrogacy and assisted reproduction. It weaves together the themes of love, family, culture, and the legal aspects surrounding ART. “Baby Steps” is a film worth streaming for anyone interested in surrogacy and it is currently available to stream on Hulu and Prime Video. Keep updated with our monthly movie reviews by subscribing to our blog. If you have questions about surrogacy, contact us now and speak with one of our surrogacy lawyers today.

If you’re a Netflix subscriber, The Surrogacy (Madre de Alquiler), a Mexican telenovela drama might have caught your eye as a top 10 Netflix series in the US. It is a 24-episode drama that features a young girl who becomes a surrogate for a young and wealthy married couple. You might wonder as we did whether there will finally be a TV series with a nuanced, informed look at surrogacy or surrogates? In this series review blog, we will discuss the first two episodes for its depictions of surrogacy and its legal accuracy. The story opens in 2004 when surrogacy is still illegal in Mexico. Despite this, an influential and corrupt family targets Yeni, a young, naive woman who finds herself in a desperate situation when her father's freedom is on the line. To save her father, she agrees to become a surrogate for Julia and her husband, Carlos, who is heir to a powerful company. After successfully delivering the babies, everything changes. Depictions of Surrogacy and Its Legal Accuracy Sadly, the series makes very little effort towards factual accuracy. It is something of a legal and factual train wreck in how many things it can get wrong. Here are some inaccuracies spotted early on: Yeni, the surrogate, has never given birth before. Under ASRM guidelines, surrogates must have experience delivering babies so that the doctors know they are ideal candidates without complicated deliveries. Yeni would be a very unlikely candidate for a couple’s last embryo when there’s no telling if she has a history of miscarriages or whether she would deliver full term, or whether she would become attached or have psychological issues having never had a child before. Yeni agrees to be a surrogate after a short meeting while under pressure the whole time. She has no consultation with a doctor about the risks. It is also unclear whether she is compensated other than the room and board. Altruistic journeys happen between friends or family, not among strangers. Confinement in surrogacy is also a major red flag. In one scene, the family lawyer attempts to convince the doctor who will perform the IVF Procedure that she should do it even though surrogacy is illegal, it might eventually become legal in Mexico. She makes some inaccurate statements that surrogacy has a negative emotional impact on the surrogate and child. The intended parents have one embryo which splits into a boy and girl which is not scientifically possible. As a typical trope, the husband has an affair with Yeni, possibly impregnating her. This should not happen in gestational surrogacy arrangements. The family abandons one of the babies with Yeni. With regard to legal accuracy Yeni’s attorney (though she never actually retains him) is her dad’s criminal defense attorney who does not have her best interest at heart. In many states, the surrogate must have her own attorney of her choosing, ideally one who is a certified specialist of third-party reproduction law. The surrogacy contract appears to be just a two-page contract which Yeni has just a few minutes to review and sign it. Later, Yeni is repeatedly told that because she signed it, she is bound by the contract when it should be void as surrogacy is not yet legal in Mexico and apparently doesn’t give her the freedom to terminate the agreement. There is no confirmation of parentage through a court or administrative body, instead they do the old "baby swaperoo” whereby Julia pretends to deliver one of the children the day of the delivery. What about Surrogacy in Mexico today? Surrogacy in Mexico is somewhat a legal gray area. Previously, only the state of Tabasco recognized surrogacy. Recently, there has been an increase in commercial surrogacy in Mexico as apparently a Mexican Supreme Court decision legalized compensated surrogacy. Some Americans have been able to utilize surrogacy in states outside of Tabasco, however, if there is no law passed in the state of the Mexican surrogate, the surrogate may be listed as the mother on the birth certificate. To remove the surrogate and replace them with a spouse or partner on the child’s birth certificate, a stepparent adoption or confirmatory adoption will be needed in the United States, and this will require the consent and cooperation of the Mexican surrogate. Conclusion The Surrogacy, Netflix's latest Mexican drama, launched its 24 episodes of its first season on June 14, 2023. Given its popularity, many must find this a campy romp. But don't expect any kind of accuracy or insights as to surrogacy in Mexico or elsewhere. We just noted some of the inaccuracies in the first two episodes. Hopefully, viewers of The Surrogacy will know that outside the drama, surrogacy can be normal, ethical and not exploitative. If you want to learn more about surrogacy law follow us on our social media, subscribe to our blog and newsletter. If you are looking for independent legal counsel for your surrogacy contract and want to avoid ending up like Yeni, contact us today.

Becoming a surrogate is a remarkably selfless commitment. There’s no doubt that a surrogate’s compensation is one of the most crucial factors to consider in the contract stage. Aside from compensation, there are additional expenses that need to be paid for the surrogate, and one of the most important is reimbursement for lost wages. It is important to have a clear and concise agreement in place between all parties involved. Why are Surrogates Paid Lost Wages? Typically, working surrogates will be paid for lost wages by the intended parents for extended time off work due to their pregnancy. Unlike other benefits, the lost wages could vary from little to none, to unexpectedly high. This is because in gestational surrogacy arrangements, the surrogate is not supposed to pay money out of her pocket for the journey. The lost wages provisions are meant to make the surrogate whole if she misses work, and there is no way to predict in advance how much work a surrogate will miss due to pregnancy or after delivery. The lost wages provision typically covers periods of time where the surrogate is restricted to bedrest or has work restrictions that limit her activities because she is unable to work due to pregnancy and delivery. To claim, lost wages, a contract will usually require the following: 1. A doctor’s note that specifies the start and expected end date and nature of the work restrictions or bedrest. 2. Proof of employment at the time of the claim. 3. Multiple paystubs to demonstrate current rate of pay. What Are the Limitations On A Surrogate’s Lost Wages? During the pregnancy and before delivery, the parties usually do not have a cap on lost wages, and rarely will a surrogate agree to limit lost wages to a certain dollar amount. After delivery, it is standard for contracts to have a cap on the number of weeks of lost wages. In most cases, the limit for lost wages is 4-6 weeks post-delivery for a vaginal delivery and 6-8 weeks for a c-section. This number of weeks mirrors the time frame under the Family Medical Leave Act (FMLA). Some surrogates also negotiate to have lost wages for their medical appointments, while others have a monthly allowance that covers these lost wages. Meanwhile, for self-employed surrogates, lost wages are sometimes not included unless they can prove their earnings rate during the contract negotiation. Lost wages can either be gross or net wages. Sometimes the wages are limited to net wages (the gross wages after state and federal taxes, unemployment, and disability withholdings) as opposed to the gross wages, as this might be the amount the surrogate would have taken home had she worked. Others argue that gross wages are more appropriate since the surrogate may still be responsible for taxes on lost wages. In states where there is disability insurance coverage, the surrogate should be required to apply for disability insurance. What the disability insurance pays the surrogate directly will reduce her actual lost wages by as much as 60-65%. We have other blog articles about how surrogates can apply for disability insurance in California, Washington, and New York. If lost wages are expected to be large and there is sufficient time, consider applying for a short-term disability policy well in advance of the journey. A short-term disability policy may require being in effect 10 months or more before pregnancy is covered. Conclusion If you need help with a gestational surrogacy agreement, including understanding lost wages provisions, be sure to work with a surrogacy attorney who has experience with surrogacy laws and understanding lost wages in your state. The attorneys of Tsong Law Group are licensed in CA, NY, IL, WA, AZ, NY, OK. If you need assistance in one of these states, contact us today. This article is for informational purposes only and should not be relied upon without additional research or consulting an attorney. This article is not legal advice and does not create an attorney-client relationship with the reader.

Just like California and Washington, if you are planning to be one of the New York surrogates, you have the right to take paid time off work while you are unable to work due to pregnancy under New York State's maternity leave regulations. The state also provides new parents in New York with paid leave, so Intended Parents working in New York can enjoy paid baby bonding time. The paid time off in New York includes: Pregnancy Disability Leave which arises under New York’s Disability Benefits Law. It provides compensation for pregnant women when they are unable to work due to pregnancy; and Parental Leave which arises under New York’s Paid Family Leave Law entitling both new mothers and fathers to part of their lost wages. The New York's Short-term Disability Law One of the medical conditions covered under this law is any pregnancy-related illnesses or complications. You're entitled to coverage only for the time when you're unable to work due to pregnancy or childbirth. If you're pregnant, you're entitled to disability for up to four weeks before your due date and up to six weeks after giving birth (eight weeks if you delivered by Caesarian section). If you need more Temporary Disability Insurance (TDI), you might have to submit additional medical documentation to support your claim. However, you might be automatically eligible for paid family leave once your TDI has ended. You are eligible for Short-term Disability payments in New York with the following criteria set by the law: An individual who is working or has recently worked at least four consecutive weeks at a job that is considered to be owned by a "covered employer." Individuals who change from one covered employer to another covered employer. As long as your employment was continuous, coverage for short-term disability starts on your first day of work. A domestic or personal employee who works at least 40 hours per week for one employer. Individuals who are not employed by a covered employer but elect for voluntary coverage. A covered employer includes those that have one or more employees. However, excluded from the definition of a covered employer are government workers, religious leaders, those providing work in return for charity care, and high school students who work part-time or only during vacations. Medical certification is needed to support your claim that you are unable to work due to your pregnancy or recovery from delivery. To apply for Short-term Disability, you must submit a DB-450 form along with any additional documents to your employer or insurance carrier within thirty days of your inability to work due to a disability. If the insurance carrier or your employer decides that your claim is not covered, they are required to notify you within forty-five days. Nevertheless, this does not take away your right to a review by the New York Workers’ Compensation Board. Parental Leave Under New York's Paid Family Leave Law You may only claim parental leave once you have physically returned to your work and, thereafter, are no longer eligible for short-term disability. Under New York's Paid Family Leave Law, you have the right to take 12 weeks of paid, job-protected leave to bond with a new child or care for a family member with a serious health condition. How much will you be paid under the law? During your paid family leave, you will receive 67% of your average weekly wage up to a cap of 67% of the current statewide average weekly wage which varies by year. For 2023, New York's average weekly wage is $1,688.19, which means the maximum weekly benefit you'll receive during your paid family leave is $1,131.08. Estimate your Paid Family Leave benefits here. You may only be eligible for parental leave after 26 weeks of employment if you work 20 hours per week or more. Meanwhile, if you work fewer than 20 hours per week, you are eligible after 175 days of work. There are 2 cases in which you can file for parental leave under the Paid Family Leave Law. If it is foreseeable, you must give your employer advance notice so they can plan for your absence. However, if the event was not foreseeable, you must notify your employer immediately. You must fill out the Request for Paid Family Leave (Form PFL-1) and submit it to your employer before or within thirty days after the start of your leave. The insurance carrier or your employer must pay or deny your request within eighteen calendar days of receiving the completed request. In the event that you disagree with your insurance carrier’s decision, you may request arbitration for a denial or any other Paid Family Leave claim-related dispute with the National Arbitration and Mediation forum. Conclusion It is crucial to remember that you cannot take Short-term Disability benefits and Parental Leave at the same time. This means if you have recovered from the temporary disability caused by your pregnancy and recovery from childbirth, only thereafter can you begin your Parental Leave. However, parental leave will not apply to surrogates as they will not be caring for the child after birth. The possibility of paid leave is a important consideration in a surrogacy contract as lost wages are an uncertain financial component of a surrogacy journey. States like New York which provide paid leave for disabled working surrogates will effectively reduce the burden of lost wages on intended parents. In addition, intended parents in New York should take advantage of the paid family leave as baby bonding time. If you are planning to be a surrogate or are soon becoming an intended parent, schedule an appointment to speak with one of our surrogacy lawyers, and we can discuss how to incorporate paid leave into lost wages provisions for your surrogacy journey. This article is for informational purposes only and should not be relied upon without additional research or consulting an attorney. This article is not legal advice and does not create an attorney-client relationship with the reader.

Washington State provides time off to its employees, including surrogates and intended parents, due to pregnancy, childbirth, or parenting. Under Washington's Paid Family Medical Leave Act (PFMLA), an employee may be eligible for up to 18 weeks per year of paid maternity or paternity (parental) leave. Compared to the federal Family and Medical Leave Act, Washington's PFMLA provides extra protection for employees who work in Washington. Most significantly, Washington’s PFMLA provides for paid leave, while the federal law only guarantees unpaid leave. Additionally, Washington doesn't restrict the law to larger employers. Any size employer must provide leave under the law and it has a broader definition of "family" that includes siblings and grandparents. There are two main types of leave available which are the (1) Medical Leave; and (2) Family Leave which includes “baby bonding” leave and military family leave. To be qualified for medical leave, you must experience a serious health condition that prevents you from working, which includes pregnancy, major surgery, and treatment for a chronic health condition. Meanwhile, similar to California, Intended Parents may also file for family leave to bond with their new baby in their family during the first 12 months after the child’s birth, or the first 12 months after the placement of a child under the age of 18 with the employee. Employees may only receive Paid Family Medical Leave (PFML) benefits if they meet the eligibility criteria. The law provides that an employee must have worked 820 hours in their qualifying period. All hours you work in Washington count toward eligibility, even if you work multiple jobs or switch employers. However, there are a few exceptions which mean that these workers don't always get benefits under Washington's paid leave law: federal government employees; businesses owned by tribal governments on tribal land; self-employed individuals (they have the option to participate in PFML); employees covered under an approved voluntary plan (you can find the list here); people who perform "casual" (irregular and infrequent) work for an employer; and union members covered by certain collective bargaining agreements. How Long is Maternity and Paternity Leave in Washington? Washington residents can be eligible to receive up to 18 weeks total per year of paid family and medical leave. The total amount one can take in a year is: up to 12 weeks of paid family or medical leave, up to 16 weeks of leave when family and medical leave are both taken, or up to 18 weeks of leave when family and medical leave are both taken and there are additional complications from pregnancy. How much will you get paid? You can receive up to 90% of your weekly pay under PFLMA—up to a maximum of $1,427 a week in 2023. Your weekly payments can be direct deposited to your bank if you file online. How Do You File for Parental Leave in Washington? The first time in filing for parental leave is to notify your employer at least 30 days before you plan to take leave. However, if the event is unforeseeable, you (or it may be a friend or relative) still need to provide written notice to your employer as soon as possible. The notice doesn't need to be complicated. You can just state that you intend on taking PFML leave and about how long you expect to be out. A sample notice is available here. The second step is to fill out an application for PFML with the State. All applications for PFML require basic documentation, so you'll be asked to supply a form of identification such as a driver's license. You will also need to provide a Certification of Serious Medical Condition form, signed by your doctor, and—depending on the type of leave you're taking—additional documents such as a birth certificate. After you apply, you can check the status of your application online. If you're approved for PFML, you'll receive a determination letter in the mail letting you know how much your weekly benefit will be and for how long your leave was approved. Why It Matters to Surrogates or Intended Parents Washington’s generous paid leave will alleviate up to 18 weeks of lost wages to a working Washington state surrogate, and this, in turn, reduces the number of lost wages the Intended Parents will have to reimburse the surrogate when she is unable to work due to pregnancy. Intended Parents who work and reside in Washington can enjoy up to 12 weeks paid family leave. If you are a surrogate or intended parents starting a surrogacy journey, schedule an appointment to speak with us. This article is for informational purposes only and should not be relied upon without additional research or consulting an attorney. This article is not legal advice and does not create an attorney-client relationship with the reader.

The Pregnant Workers Fairness Act (PWFA) is a new law that was signed by President Biden last December 29, 2022 and into effect on June 27, 2023. This law requires covered employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth, or related medical conditions, unless the accommodation will cause the employer an “undue hardship.” How does this employment law affect surrogacy in the United States? This law will provide employment protection to working gestational surrogates during their pregnancies or after giving birth who live in the twenty states that do not have pregnancy discrimination laws. While the Americans with Disabilities Act (ADA) requires employers to accommodate disabled workers, there are gaps in the ADA when it comes to pregnant and postpartum workers. The ADA does not define pregnancy as a disability and pregnant women must show they have a separate disability under the ADA before they can request and receive accommodations from their employer. The new PWFA protects employees and applicants of “covered employers” who have known limitations related to pregnancy, childbirth, or related medical conditions. “Covered employers” include private and public sector employers with at least 15 employees and employment agencies. In passing the law, Congress provided some examples of reasonable accommodations: the ability to sit, or drink water; have closer parking and flexible hours; receive appropriately sized uniforms and safety apparel; receive additional break time to use the bathroom, eat, and rest; leave or time off to recover from childbirth; and being excused from strenuous activities and/or activities that involve exposure to substances not safe for pregnancy. Employers are required to provide reasonable accommodations unless they would cause an “undue hardship” on the employer’s operations. An “undue hardship” is significant difficulty or expense for the employer. Guidance from the EEOC provides that covered employers cannot: Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer; Deny a job or other employment opportunities to a qualified employee or applicant based on the person's need for a reasonable accommodation; Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working; Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding or investigation; or Interfere with any individual’s rights under the PWFA. Conclusion: The PWFA protects pregnant women and women who have given birth by requiring reasonable accommodations. Working surrogates can request accommodations so that they can continue to work while pregnant and avoid dangers to their pregnancy. This is a win-win for surrogates and the intended parents who hope that the surrogate is not subject to dangers at work while also paying for lost wages for when a surrogate is taken off work by their doctor. This article is for informational purposes only and should not be relied upon without additional research or consulting an attorney. This article is not legal advice and does not create an attorney-client relationship with the reader.

Posthumous reproduction uses a deceased person’s gametes (egg or sperm) and assisted reproductive technology to produce a child. In this article, we are going to breakdown the two types of posthumous reproduction. The first type of posthumous reproduction occurs when the deceased party passes down the gametes to another to have a baby. Just like people will plan for what happens to their possessions after their death, individuals who have retrieved and stored sperm, eggs or embryos can list their wishes with what happens to their stored gametes after they pass away. This can be done through a will or a testamentary document, or through the IVF clinic’s consent forms that stipulate the disposition of gametes and embryos after the death of one or both individuals who contributed the gametes. There are also cases where a party left instructions that his or her gametes should not be used after death, but in some circumstances, it may be the only chance of the surviving partner to have a child that is biologically related to the deceased partner. In cases like this, the expressed wishes of the deceased prevails over the survivor's interest in having a biologically related child. The American Society for Reproductive Medicine (ASRM) recommends that medical providers do not allow posthumous use of gametes if there is evidence the deceased party did not want it. What about situations where there is no explicit or written evidence of the wishes of the deceased regarding posthumous reproduction? In cases like this, providers must determine the desires of the decedent and first determine whether there is a clear record of the wishes of the deceased before complying with requests of the living to use the deceased’s frozen gametes or harvest gametes postmortem. The ASRM discourages posthumous assisted reproduction without clear evidence that it would be supported by the decedent’s wishes. The second type happens when the gametes are retrieved from the deceased after their death. In contrast to the first type where the gametes are already retrieved, the second type requires retrieving the gametes after the person's death, as the gametes were not stored prior to death. In some cases, the courts have allowed parents to retrieve gametes from their deceased children even without a will or advanced directive. Once the parents retrieve the gametes, they are free to use them as their own without any consent from the deceased. Here are two examples. In February 2019, a 21-year-old Westpoint cadet named Peter Zhu died following a skiing accident in New York. His parents told a court that they wanted to keep the possibility of using the sperm to eventually have children that would be genetically related to Peter. In their petition, Peter’s parents argued they were trying to uphold their son’s wishes, “to help Peter realize this dream of bringing a child into the world.” They argued because of China’s one-child policy, Peter ended up the only male in his family’s generation, meaning only he could “carry on our family’s lineage.” The court granted his parents’ petition because Peter had made statements that he wanted to have three children, and this showed “presumed intent" to have children. Peter’s sperm was retrieved from his body and stored at a sperm bank. In another case, a Texas probate judge granted the request of Nikolas Evans’ mother to harvest his sperm in 2009. Nikolas Evans had talked about how much he wanted to have a child, but the 21-year-old died after he was attacked trying to catch a bus ride home. Marissa Evans, the mother of Nikolas, had to go to court to get permission to harvest his sperm, and the judge granted her wish, ordering the county medical examiner's office to keep her son's body chilled and retrieval of his sperm. Marissa’s decision to seek a court order to preserve her son’s sperm attracted news coverage which she used to seek out surrogates around the world. When IVF treatments did not result in a live birth, she felt that she had let her son down even in death. Nikolas’s case is an example that a parent’s intentions to keep a child’s memory alive through posthumous reproduction may not be successful. Conclusion: According to the ASRM, posthumous gamete retrieval or use for reproductive purposes is ethically justifiable if the deceased has authorized the procedure in writing. Embryo use is also justifiable with such documentation. Courts have ruled more expansively. It is very important for a parent or partner to seek counseling prior to deciding on posthumous reproduction. Have questions about egg donation? Talk to a egg donation lawyer now by clicking this. This article is for informational purposes only and should not be relied upon without additional research or consulting an attorney. This article is not legal advice and does not create an attorney-client relationship with the reader.