Family Formation Law
Family Formation law is an exciting area of law. I am thankful to have been able to help many families navigate their journey with care and compassion. Family formation law includes stepparent adoptions, second parent adoptions, foster care adoptions, private adoptions, egg donation, embryo donation (also in some places known as embryo adoption), sperm donation, and surrogacy. The advancement of medical technologies has spurred all kinds of interesting legal questions and changes in law. As well, the options for single parents and LGBTQ+ families through legal advocacy have become much more readily available. In the realm of Assisted Reproduction Law, I represent intended parents, surrogates, donors, and agencies. I also provide a family planning consultation for families who are considering their option for building their families and want someone to help consider their option prior to choosing one specific path.
Gestational surrogacy is the process by which an intended parent (or intended parents) engage a gestational surrogate (also called gestational carrier) to assist them in carrying a baby, whether the baby is in fact genetically related to the intended parent(s) or not. Both Florida and DC allow for gestational surrogacy. Generally the primary stage of the legal process is to complete a surrogacy agreement between the Intended Parents and Surrogate (in Florida, if the intended parent is single or if there is no genetic connection between the intended parent(s) and the child, we must use a statute that refers to the surrogate as a volunteer mother and the agreement as a pre-planned adoption agreement). The second phase is to complete the parentage action in court. (Note that Florida birth certificates are created with categories Mother/Parent and Father/Parent. This is something that I believe should be changed to simply Parent and Parent or Parent 1 and Parent 2 or allow for individuals to choose their title – Parent, Mother, Father. )
Traditional surrogacy is simply when the surrogate is also the genetic mother to the child. This is allowed under Florida Statute called pre-planned adoption agreement. At the time the pre-planned adoption agreement is executed, the volunteer mother/surrogate signs a consent to adoption which she can rescind up to 48 hours after the birth of the child. These are complex situations requiring each party to consider the risks, responsibilities, and future relationships.
An egg donation can be a known or anonymous relationship. The parties often use an egg donation agency for matching or they have connected directly on their own. A contract is prepared to conform with the statute and the intentions of the parties regarding the egg donation, risks, rights and responsibilities, privacy, and reimbursement for pain, suffering, travel and lost wages.
An embryo donation can be a known or anonymous relationship. The parties could be using an embryo donation agency for matching or have connected directly on their own. A contract is prepared to conform with the statute and the intentions of the parties regarding the embryo donation, risks, rights and responsibilities, privacy, and reimbursement for pain, suffering, travel and lost wages. Some agencies and/or states use the language embryo adoption and go through the formal requirements of an adoption such as a home study of the recipient parents. This is such an interesting and growing area of law, as the benefits of having formal adoption requirements mean that families are educated on adoption related issues as the child is not biologically related to either of the recipient parents. However, to others this feels like too high a burden to place on a set of recipient parents as the embryo donors, the original intended parents who created the embryos, are making a conscious choice that is different than what other expectant/birth parents decide. What is most important is for both donors and recipients to consider the long term realities of their decisions for their child, their siblings - both bio and non-bio, and for both families AND to be transparent in their goals and desires regarding the match and for the child regarding privacy and communication.
Embryo creation and disposition agreements
These types of agreements are unfortunately not too often done in advance of creating embryos, unless the parties are unmarried or they are advised to do so by their fertility clinic or marital lawyers. They offer parties an opportunity to truly think through the legal issues regarding the creation of the embryos and the disposition should something happen to the couple or either of the parties.
Most often my role in drafting or reviewing sperm donor agreements is in known sperm donations. Of course, the best time to do these agreements is prior to conception to ensure that all parties are aware of their rights and responsibilities, as well as their intention regarding openness and future contact. However, some times, I get the call after the baby is already in utero or born. We can still assist you at this time, but there may be additional steps to take and clearly no guarantee about the legal outcome if there is confusion or no clear agreement prior to the actual donation.
Stepparent adoption is the process by which the spouse to a current parent is added as a co-equal parent to the child. This is often recommended for LGBTQ+ families to ensure that they have a clear directive and a court order confirming their co-equal parentage, though for many this feels like an additional tax on the LGBTQ+ community. And as much as that may be true, I still recommend it to my clients until equal rights under the law is fully available.
Second parent adoption
Second parent adoption is the process by which a co-equal legal parent is added for a child. It is not based upon the marital relationship between the parents, but rather their commitment to the child. This is not available in every jurisdiction, although we believe it should be.
Child Welfare and Foster Care Adoption
For many, navigating the child welfare (foster care) system is challenging and frustrating. There are many ups and downs that families go through and decisions to make regarding what is the best match for you and a child, interpreting disclosure, and negotiating subsidy to meet your child's needs.
*** Note that there are varying legal requirements and options depending on the jurisdiction and controlling law.