Posted on March 11th, 2021by RMANY

Ep 53: Surrogacy with Melissa Brisman, Esq.

Fertility Forward Episode 53:

Today’s guest is a friend of RMA New York and someone whose name comes up often: attorney Melissa Brisman. Melissa first started helping couples become parents in 1996. Actually, she was her own first client, guiding and directing the process in which she and her husband became parents of twin boys and later a daughter, all carried by a gestational carrier. Attorney Brisman has been instrumental in creating the law in many states regarding naming genetic parents on the original birth certificates of their children delivered via surrogacy. Her expansive knowledge and experience have allowed her to create an agency staff that is prepared to successfully help parents build their families. Melissa is considered a true pioneer in this field, and advocates for changes in the law in this area, lecturing to physicians, potential parents, universities, and lawyers around the world. In this episode, Melissa addresses the fact that New York has recently legalized paid gestational surrogacy, and she explains the nuances and limitations of the law. She also has some advice for both parents and carriers going through this process and she talks through the financial costs and the toll it can take on one’s mental health. What stands out about this interview is Melissa’s practical approach and her emphasis on the importance of patience, gratitude, and kindness. Tune in today!

Transcript of Episode 53

Rena: Hi everyone. We are Rena and Dara, and welcome to Fertility Forward. We are part of the wellness team at RMA of New York, a fertility clinic affiliated with Mount Sinai Hospital in New York City. Our Fertility Forward podcast brings together advice for medical professionals, mental health specialists, wellness experts, and patients, because knowledge is power and you are your own best advocate.
Rena: We are so excited to welcome to Fertility Forward today attorney Melissa Brisman. She first started helping couples become parents of babies in 1996. She has her own first client guiding and directing the process in which she and her husband became parents of twin boys and later a daughter all carried by gestational carrier. Attorney Brisman has been instrumental in creating the law in many states regarding naming genetic parents on the original birth certificates of their children delivered via surrogacy. Her expansive knowledge and experience has allowed her to create an agency staff that's prepared to successfully help parents build their family. Melissa is considered a true pioneer in this field who advocates for changes in the law in this area and lectures to physicians, potential parents, universities, and lawyers around the world.
Rena: Thank you so much for taking the time to come on today. I'm so excited to have you. Really good friend of RMA and someone whose name comes up all the time. I feel like I'm always telling people, Oh, just, just go to Melissa Brisman. I'm so, so happy to have you as a resource to talk about specifically today surrogacy and the big news that is hitting New York.
Melissa Brisman: Absolutely. It's great to be here. It's a long time coming. Ironically, it'll be on a holiday when the law goes into effect, February 15th on President’s Day. But as soon as the law was passed in April, I feel like parents have been waiting for this for so long that immediately they wanted to start looking for a carrier.
Rena: Yeah. So let's kind of back up and tell everyone that sort of, you know, either doesn't know, or really kind of has only heard whispers of what's going on, What happened in New York regarding surrogacy and the law?
Melissa Brisman: So for many, many years, actually it originated with baby M, which probably a lot of you are much younger than when this occurred, but basically baby M was a case out of New Jersey in which she had a traditional or genetic, what do you call surrogate, which is a surrogate that uses her own eggs via artificial insemination and has a baby for another couple that's biologically hers. The woman who carried this baby as a surrogate decided that she wanted to keep custody of the baby. And as a result, a lot of laws in New Jersey and New York came into effect prohibiting any form of surrogacy for pay. New Jersey's was changed in 2018 to allow for paid surrogacy. And in 2020 New York enacted the Child-Parent Security act, which is going to be effective on February 15th, allowing for compensated surrogacy. But the New York law is very sophisticated and it's much different than the law in any other state. And there's a lot of nuances. So providers and intended parents have to be much more careful with the New York law than in other States.
Rena: So let's tell people a little bit, I mean, what does that mean? So paid surrogacy versus it not being legal to pay for a surrogate in the state of New York before. What is the difference now?
Melissa Brisman: So prior to the law, you could, in every state there's no state that outlaws any kind of surrogacy, whether it's genetic, meaning the woman who gives birth to the baby is the genetic parent or gestational meaning the woman who gives birth has no biological relation, meaning not her egg and not her husband's sperm to the baby that she's going to give birth. There is no state in the United States which says you cannot do this, it's illegal, right? Certain States now left, I believe it's Louisiana and Michigan and New York prior until Monday outlaw what's called compensated surrogacy, which means the carrier cannot receive any funds for carrying the baby, right? That doesn't mean she can't receive medical expenses, reimbursement for maternity clothes, but there can be no payment for the service of carrying the baby in those states. That's illegal.
Rena: So that means that you could have, it could be a friend, a sister, somebody carry for you and you could've reimbursed their medical expenses, but you could not give them any sort of financial compensation for carrying and so that is the difference there.
Melissa Brisman: Yes, that's the difference is that now you're going to be able to pay them. There are other differences in the law, for instance, previously in New York, there were three, three major things that have changed, right? So the idea that a fertility professional could receive a sanction for participating in a paid arrangement, that's gone, right? So if you participate in a paid arrangement in New York, there are no more penalties for the payments. The second thing was that prior to this law in New York, all surrogacy payments, whether genetic or gestational, agreements that in that involved a surrogate were void and unenforceable. So what that means is whether when, whether the person is paid or unpaid was whether or not the procedure was allowed in New York, right? But if you had an unpaid carrier in New York, which was completely allowed prior to the law, any contract you did would be void and unenforceable. So there is now a way to make the contract enforceable, meaning that we can enforce the custodial rights of the, of the intended parents versus the gestational surrogate. Genetic surrogacy or traditional surrogacy is still void and unenforceable in New York and the payments are still not allowed. So we have that as well. And the termination of rights of the person birthing the baby as the gestational surrogate, we can now terminate her rights prior to birth. In the previous law we could only terminate her rights after the baby was born, right? So we have three changes, the compensation, the enforceability of the agreement and the timing of the transfer of parental rights. Those are the three major changes in the agreement.
Rena: That sounds like it would make it a lot more comfortable for the intended parents to feel, you know as they have their rights as parents prior to the birth, which is a big difference. Without that, it seems like, you know, there could have been some concern that, you know, once the baby is born, that the, the carrier, you know, could have said, actually, you know, I, I want to keep this baby and there could have been sort of some gray area there. Is that…?
Melissa Brisman: Absolutely. It's preferable in every case, it's not only preferable for the parents. A lot of times people look at these agreements from the eyes of the parents, right? So you think, Oh, the parents don't want the carrier to be able to keep the baby. But think of it from the carrier perspective or the gestational surrogate’s perspective. She doesn't want to get stuck with this baby either. What if there's something wrong with the baby? What if the baby has a defect and the parents don't want to take it and they saddle her with the cost of raising the baby and/or placing that baby for adoption when it shouldn't be her responsibility. So it also places the onus on the parents if they are not keeping the baby, that they would be the ones to take custody and place the baby, if that happened. So it protects both sides.
Rena: I didn't even think about it that way.
Melissa Brisman: You would be surprised in most surrogacy arrangements, the parents are really scared that the carrier is not going to give up the baby. But in reality, if a carrier wanted another baby, she would have one, right? One of the requirements of becoming a carrier would be that you have to have pregnancies easily. And if she has a baby and is stuck with raising that baby that she doesn't want, that's also a problem. Or sometimes she may have preconceived views about whether or not you are going to take the baby if it's a boy or a girl. So you, you do want to make it clear and you want to make the carrier comfortable that the parents are going to take the baby and legally, they have to. So all parties feel protected. There are some unusual requirements though, which, you know, at some point during this, we should go over of the, the act.And it also the act, which is more than the scope of probably this conversation goes over a lot of other topics that people don't realize, like it goes over embryo disposition agreements and posthumous reproduction, and donor rights. So the law does not just talk about surrogacy.
Rena: Well, let's go over some of the, the nuances that you mentioned, let's really kind of let's go there.
Melissa Brisman: So in order for the agreement to be enforceable under New York law, at least one party on each side must be a New York resident. So for instance, if you have a couple who resides in China and you are using New York law to govern your agreement, that is not permissible. At least one intended parent must be a US citizen or permanent resident and must reside continuously in New York for six months. Same with the carrier. So the actual enforceability of a New York agreement is governed by some unusual provisions. The carrier must be over 21. That is not that unusual. In addition, there are some, there is something called the Surrogate Bill of Rights that every agreement must contain, which is under New York law. So there are five sections to the Surrogate Bill of Rights. If a surrogate is a compensated carrier, she's entitled to everything in the Bill of Rights. In the bill of rights that she's entitled to legal counsel paid for by the intended parents with no limitations. Also health insurance from the time of the signing of the agreement until one year post-birth or the termination of the agreement one year post. In other words, one year post a miscarriage. In that time, she's also entitled to be made whole for any expenses that she may incur in that one year post birth - lost wages, for instance, maybe if she had a problem, complications and she's out of work for a year, you could have to pay for up to a year. She's entitled to $750,000 of life insurance for the term of the agreement plus a year. She's also entitled to mental health counseling. The biggest thing is that she has full control over the pregnancy and any promise to the contrary is void and unenforceable, meaning she has full control over her body. So if the agreement talks about having a termination, a reduction, a C-section, an amnio, choosing a particular doctor, giving birth in a particular hospital, that is all unenforceable. And she's still entitled to her compensation. So for example, if you have a New York agreement in which the carrier promises to abort a fetus that has a severe life threatening defect, she doesn't abort under the agreement. That portion is void and unenforceable, meaning the rest of the agreement is okay, so she's still entitled to get paid even though she doesn't aboard the fetus. Now in every other state, it might be the case that it's unenforceable to force someone to have a termination, but the lack of monetary penalty or the fact that they would still be allowed to get paid is something that could be argued in court, where as here it would be very hard to make that argument in court. So the issue is when you are using an, a New York couple and a New York carrier, is there any way, or what might you want to do? So you might want to, if you are a New York couple, find your carrier outside of New York, or if you're a New York carrier, you might want a couple that lives in the United States in a surrogate friendly state that’s also outside of New York so that the contract could be governed by another state's law, right? Because the comfort level to both the carrier and the parents may be lower in New York. Now the issue with the enforceability, it's very confusing. So if you don't have all these provisions in the agreement, they are unenforceable, the agreement. However, it is not illegal. You can still have an agreement that talks about the meeting of the minds, that talks about everything you intend. It's just that these provisions are unenforceable.
Rena: Yeah. So, I mean, I'm just listening to all of this. And of course the first thing that runs through my mind, which I'm sure is running through a lot of people's minds who are listening is how expensive this is. You know, not only is there the cost of, you know, financially compensating the surrogate for carrying, but there's so many other costs outside of that.
Melissa Brisman: It's not only that there are other costs, there are other risks. I can tell you as a parent. One of the biggest concerns I had was whether or not I would have any control over any of the choices. So for instance, if there was an ultrasound and the doctor recommended another ultrasound, would my carrier do it and would that be something that you would be obligated to do? Certainly because it doesn't risk her health having an extra ultrasound or an extra blood test, but under the current law, she has full control over the care and management of the pregnancy. So she does not have to say yes to any of that. And I think both parents and carriers don't like that because the carrier doesn't want the parents to be in fear that she's not going to do what she said, right? And the parents don't want to be in that fear. So I think that while the law is a huge step in the right direction, it does have limitations to it.
Rena: I mean, and how does that work too? You know, I know a lot of people wonder, okay, so say I have a surrogate. Do I go to all the appointments with her? You know, so if that is offered, you know, when a doctor says, well, I think you should have this ultra, you know, an additional ultrasound, but it's up to you. Like, are the parents, do they have the choice to be there with a surrogate? So they know in real time, you know, this is happening. This was put on the table. Or is, you know, the person who is a carrier, do they go to the appointments by themselves and, you know, after the parents choose who the carrier is, you know, they kind of don't really see them until the birth. Like how does that work?
Melissa Brisman: Well, each arrangement is going to be different and certainly in COVID things have changed a lot, right? But if you have a foreign intended parent, most of the times they're not going to any appointments. But now with the technology age, a lot of times the carriers will just either have the parents zoom into their appointments or be on speakerphone or on FaceTime. Most of the carriers do sign HIPAA forms so a lot of times, although the doctors don't come to the phone, the nurses will explain what's going on to the parents. So, and that level of participation really depends on what the parents want. So you can have an arrangement in which the carrier becomes very close and remains in touch even after the birth. You can have a more casual relationship where they, they talk once in a while, or you can have an arrangement where they don't talk at all. So under most contracts, the parents are entitled to all the records. However, again, under New York, what they might be entitled to the records, but they can't direct her care, which is difficult I think for a lot of parents to accept.
Rena: And how does one go about finding a carrier? You know, are there agencies, are there matching services? Do you, I mean, how does that work?
Melissa Brisman: Sure. So under the New York law, the agencies are going to have to be licensed and the regulations have not come out yet due to COVID, they're a little backed up, but there are lots of agencies. I founded an agency, Reproductive Possibilities. We find hundreds of carriers. We help screen them and go through the process. If you don't know anything about the process and you're finding a stranger, an agency really is the way to go because you won't even know what to look for. But there, if you're on a budget, there are other ways that you can educate yourself. It will take a lot of time. So friends and family, obviously you don't need an agency. Your clinic will direct the psychological treatment. Probably give you a list of lawyers, the medical as well. If you find somebody on your own, there are various, people use a lot of forms of social media to find people on their own. Advertising, word of mouth, Facebook, Instagram, Tik-Tok, people use all kinds of methods. In the past people used to use newspaper advertisements that sort of nobody really advertises in print media as much anymore, but there's a whole host of ways. There are also programs that will vet carriers for you. For instance, part of our agency is you can bring carriers to us and we will act as the agency, but it will be a lower cost because you found the person on your own. Because for every, we only take about 5% of the carriers that apply here. So it's a very rigorous process when you are looking for a carrier
Rena: That I guess would be my, my next question would be okay, so how are carriers screened? You know, what do you look for? How do they kind of pass the application process to be accepted as a carrier? You know, obviously it's a huge role and a huge responsibility. So how does somebody kind of, you know, go through all the hoops to be approved?
Melissa Brisman: So there are a lot of steps in becoming a carrier. First, normally, any place they're just going to want an application. And we put basic things before people apply so they don't, right? You have to be over 21 in our office. Some places take people younger, but a main requirement really is that you have had to have given birth and you're raising the child. So we don't want you to have given birth three times and placed all the babies. We want you to be in a stable situation, right? So you have, there has to be some income coming into the household. There's also various things that may be obvious to most people, but sometimes the applicants are not obvious. No smokers. You can't be in on any drugs that would be harmful to a baby. We don't want you on any sort of psychological medication because even though it could be safe to be on antidepressants as a carrier, we don't want anybody for two reasons. One, it's obviously safer not to have to take any psychological medications. And number two, somebody who already is having some psychological issues may from a birth experience postpartum and we don't want to take that risk as well. There are no smokers and we want you to be under usually 40, 42 sometimes we take up to. You can't have complications. You can't have excessive BMI. You can't live in certain states, right? So you can't live in Louisiana. You can't live in Michigan where it's illegal. You have to be doing this for the right reasons. Certainly money can be one of the reasons. It cannot be the sole reason, right? So there are certain histories we won't take either. A history of domestic violence in the household. History of drug abuse in the household. You know, we have to have you have a home study on your home, a criminal background check, a sex offender registry. So there are a lot, a lot of things. I'm sure I've forgotten a ton of things that we look for, but those are the main ones.
Rena: I mean, it's a very stringent process with a lot of screening and testing. You know, I know a lot of people are very nervous about, you know, their carrier and, you know, not having control over a pregnancy, but you know, there's a ton of background research done and it's a very kind of strict application process.
Melissa Brisman: Yes, absolutely. In addition to the application process, we have various steps they must go through. So they need to send, directly from their physicians, all copies of their OB records and their labor and delivery records for every baby they’ve ever had. So from both the obstetrician and the hospital. And if they've given birth, let's say in a foreign country and, or more than 10 years ago, we may not be able to take them if they cannot get their records. They also need to undergo a criminal background check, as well as their spouse or partner. If there's DUIs on their driving record recently or criminal activity, we're not going to take them. And we also send someone to their home to make sure that they're in a safe place to live. So someone's looking through their cabinets, checking for drugs, checking for excessive alcohol,l checking for unsafe living conditions. In addition to all that, they're going to spend what we call a marathon day at their clinic where the clinic is going to do what we call FDA testing, which is a panel of infectious disease testing to make sure they don't have any infectious diseases and also to make sure they're vaccinated. I'm sure COVID is going to become a requirement at some point that they beome vaccinated for COVID because as we know pregnant women who get COVID are at a higher risk of death. But you know, certain things like MMR immunity are required and sometimes HEPB, depending on the clinic. They also have ultrasounds of their cavity to make sure there's no polyps, to make sure their lining can build up. They have a complete psychological evaluation so if there's marital problems, they're not going to be accepted. If we think they're going to have a problem separating from the baby, if they don't share the same views on abortion or reduction as the parents are, we don't think they're a good fit or match. They're not going to go forward. So it's a pretty long process. Actually, the biggest problem that we have with clients is that they usually think they're going to go to an agency and nine months later, a baby's going to pop out of the oven and it's exercising patients during this process, which is very hard because a lot of these couples have had a lot of trauma and have gone through a lot of infertility already and they're just ready for the baby and we have to tell them it's going to be another year and a half.
Rena: Right. Because I guess, you know, not only is it the screening process and all of that to even, you know, get a carrier ready to start the process but then as we know, you know, getting pregnant doesn't necessarily take, you know, one month, it can often take several tries and can be a long journey. So this is sort of both the there's two journeys kind of going on here.
Melissa Brisman: Yes, absolutely. So one of the things is most carriers will agree to try four times. But again, under the New York law, this is another one of the provisions, is that at any time they're not pregnant, they can back out. It's not enforceable that they need to continue. Now, realistically, you really can't force anybody to become pregnant. So if the carrier did want to back out at any time when she wasn't pregnant, she would be able to anyway. The issue would be whether there would be any monetary penalty and there is none under the New York law. However, it can be very upsetting if somebody goes through one, one cycle and we know that it can take more than one and the carrier doesn't get pregnant and the carrier then realizes that really, this is too much for her family, all this monitoring, blood work, this isn't the pregnancy that she's used to and she may not go forward. And then you have an issue where you paid a lot of money, you invest in a lot of time, and she did one transfer and she doesn't want to get pregnant. But also issues can come up like her lining doesn't build up properly or there's fluid in the cavity that they can't get rid of and we need to get another carrier. So that's also, you know, can be very upsetting to people.
Rena: Sure. That's a lot because then you're dealing with the stress of trying to conceive and infertility on top of, you know, already gone through the carrier. Plus, you know, when you're compounding with the additional kind of financial obligations or an additional emotional stress, I mean, that's a lot of burden for people to carry.
Melissa Brisman: Absolutely. I think one of the hardest parts, there's two issues that I always tell people, right? There's the financial impact of using a carrier, which can be upwards of a hundred thousand if you're doing everything through an agency because the average carrier in the United States gets $35,000 for a first-time carrier, carrying a single baby. And if we say the average agency fee is $20,000 to $25,000, without any of them, including any expenses, you're already at $60,000, right? And that's not the cost of IVF if it's not covered, or if you need an egg donor or travel expenses or legal expenses or a whole health insurance expenses. So normally you're at a minimum of $80 to a hundred thousand when you're going through an agency for this process. So money is obviously a huge factor. And the fact that most people can't afford that much money, but also the emotions, right? So when clients come to me and money is luckily not going to be a factor for them, emotions are usually a big factor, right? Because it's very hard to let go of control of something that you thought you would have control. So this is actually where the big difference comes between the same sex couples and the heterosexual couples who have had significant difficulty getting pregnant. Heterosexual couples usually, and this is a stereotype are a little bit more patient because they're planning their family, right? They're researching and planning. There has never been a thought and currently there is no way for a male, a biological male to carry and give birth to a baby, right? So they grew up thinking that either they weren't going to have children, or this is the way they were going to have children. So the planning and the doing this way, a lot of times, it's very exciting for them, right? If they, if they have the money, it's exciting, they're happy. Now there are two kinds of heterosexual couples. You have one who knew all their life they would have need a carrier because they had a defect or some other medical condition that prevents them from caring. They can sometimes be in the same feeling a little bit as a same sex male couple, not always, because a lot of times for the woman, there's a loss of being able to do what most women are able to do. But the hardest couples are those that have had a reason now that they need a carrier that they didn't have their whole life, right? Like they had cancer or they lost their uterus in a car accident, or they have too many fibroids or their lining just won't build up. Because now they've been doing fertility for five years and the emotional drain on them and the frustration is, is really at a high point. So I usually recommend that they have some sort of support, you know, a support group, a mental health counselor, help them with this process because normally the agency's off, you know, we're, we're compassionate. We obviously want to have feelings for the couples going through this. I went through this myself. I know how nerve-wracking it can be, but the agency isn't really trained in mental health. And a lot of times people need outlets beyond, you know, their friends, family, or agency, you know, to get them through this.
Rena: I mean, of course as the, the resident mental health expert here, I'm so glad you touched upon that. You know, and I would say when people come to me, you know, usually the first thing I hear is the sort of fear about the financial and can I even overcome this hurdle to make this a possibility because for so many people, you know, knowing that they have to put out, you know, usually six figures for a carrier that can in itself sometimes be an insurmountable obstacle, which in itself is upsetting. You know, obviously I don't think cost should be a barrier to care and to family building. Si that's one piece. And then the second piece is the, the grief and loss that goes along with it, you know, and as you said, if you are, you know, a same-sex couple, if you're a male same-sex couple, then yes, having a carrier would be usually a part of your picture since, you know, in today's world, it is not medically possible to carry a child if you were a biological male. But if you are a woman and that has been taken away from you, you know, again, because of maybe you lost your uterus or you have a heart defect, you know, any of the things you touched upon, there's a lot of grief and loss that goes into that, you know, similar to what individuals going through fertility treatment struggle with, you know, the grief and loss that goes into needing assisted reproductive technology to conceive, you know, and the loss of being able to conceive on your own. And so I think it's complicated and complex and, you know, absolutely think that building out your village and seeking counseling and support is really helpful. You know, I think talking to a professional and then also, you know, talking to other people that have gone through this, you know, what was it like to use a surrogate? You know, what was that experience like for you and to learn ways to deal and process.
Melissa Brisman: Absolutely the mental health. To me, it's, it's almost as important as the legal and a lot of see a lot of people who come to do a carrier are extremely educated. And a lot of times they don't believe in the value of the mental health. And I try to emphasize that it's very important, not just for them, but for the carrier. Because a lot of times you have people from different classes and different cultures coming together so you have to think about what it takes to be a carrier. And in my 20 plus years of doing this, most carriers are fairly laid back. I'm convinced they're all going to live to a hundred. They don't worry as much as the parents worry. They're the kinds of people who are going to carry a baby for somebody and not worry about all the things that could possibly happen to them in a law school textbook. Right? So they don't look up and read the back of the medicine, which is like reading the back of a Tylenol bottle with, you know, 300 plus potential side effects that rarely if ever happen. Whereas the clients tend to do that. So you have this clash of somebody who overeducates themselves and is nervous that, you know, the carrier is going to flee to Nicaragua, leave her whole family and hide with their baby and somebody else who just believes in basic faith and everything is going to work out. And a lot of times that is the hardest part of the journey is just explaining to them: you need to understand this different style of living. You need to respect it as them, as people, you need to understand that they don't work on your time schedule. Right? So for me, when I had a carrier, I'm pretty much used to responding to anybody's calls, emails, notes within 24 hours. I pretty much get back to everybody who calls the office and if I can, I will have my assistant call back and say, Melissa's in meetings all day. Is this urgent? Can she get back to you tomorrow? I'm hyper-organized, right? Someone would call me type A.
Rena: You were very prompt. I appreciate that.
Melissa Brisman: The carriers are not like that, right? They've got four kids. They, they're very laid back. So you can't expect them to necessarily buy into your need for instant gratification, right? So you have to work out a schedule and communication and a lot of times the mental health provider is good for that. So when I was using my carrier, what they suggested is, and my carrier was open to this. not everybody would, every morning, she would text me and say she was alive because that would just make me feel better. Like I talked to her once every two weeks, but I would just know nothing happened to her yesterday and I don't need to worry. Right? But she's not going to talk to me every day. She has a bunch of kids at home and I'm not going to get that kind of instant gratification, but I was happy with the once a day, Hey, I'm fine. I, I just got up, have a good day. Right?
Rena: I like that system. Yeah.
Melissa Brisman: So you have to be open to communication. And a lot of times a mental health person who's experienced in this will have suggestions for how everybody can work together and how there can be a compromise. Right? So, you know, her compromise was okay, I'm going to take 30 seconds of my day to do something that I think is unnecessary, but I know it makes somebody feel better, but no, I can't give somebody 20 minutes of my day because they're anxious, right?
Rena: Is that not part of the legal contract that they are obligated to tell you, you know, within a certain amount of time, you know, what happens at a doctor appointment or anything like that?
Melissa Brisman: Yes, we do put it in, but realistically, let's just say it says in there that you're going to convey in some form the results of your doctor's appointment the same day that you go, and you're not doing that, right? You're doing it the next morning because it's Halloween or it’s Christmas or Thanksgiving is coming up, realistically, what are we, we're not going to withhold payment. Right. And telling the carrier that she is violating the contract in that is not serving anybody's purpose. Right? So usually when it's a minor and it hasn't gotten to the extent where it's being done every time I'm going to call the carrier and say, Hey, look, everybody's nervous. What can we do? I may call the doctor's office and say, Hey, is a nurse willing to call after the appointment is over, you know, we're going to see what we can do to get there in a more reasonable fashion that the carrier can meet. Right? Because a lot of times life just happens and things happen. And also there can be a change. The biggest problems that we sometimes have or change in circumstances. Right? So let's say we had a carrier fully screened and she was ready to have a transfer in February of 2020. So she starts her medication and her transfer supposed to be March 30th, March 25th. Right? COVID happened around March 13 and everything shut down. Right? And a lot of people got scared. So a lot of parents put the process on hold. A lot of carriers put the process on hold. Some in both camps indefinitely. So there's a lot of unpredictableness in certain things that we can't control. I've been doing this a long time. So I was doing this in September 11th. I was doing this when there was a volcano in Europe and flights couldn't get in, right? There are relatives that die, relatives that get fit. People who leave their husband on both sides of the equation. So we just have to be, if we have a mental health person involved, we can hopefully get through anything and see what is our next step going to be based on, you know, and what's the best way to handle this. Now, legally, I'm going to know the best way to get somebody into the country if they have a US citizen, baby coming, and they're not citizens and things like that. But mental health wise, sometimes it's just good to have a neutral party to sort of help take the anxiety down a little bit
Rena: And what about sort of after? Is there anything, any sort of legal obligation or is it in the contract in terms of the carrier’s, you know, legal right, or not legal rights to have a relationship with the child or the family? What does that look like?
Melissa Brisman: So legally in these arrangements, the carrier is not going to legally be entitled to see the baby or have a legal relationship with the baby, right? Because this is, pre-birth her rights to that baby are terminated and post-birth contact is never going to be legally required of any sort. But a lot of times in these situations, people do have post-birth contact. Some become close friends, some just send Christmas cards, you know, some just do emails, you know, things, things like that.
Rena: And do you normally see, you know, if someone uses a carrier for multiple births, do you normally see that they would use the same carrier each time or that, you know, really varies?
Melissa Brisman: That does vary. I see a lot of times, same sex couples do do that because they are looking for somebody a lot of times who would be willing to do two, especially with the rise of the single embryo transfer. A lot of times if they're partners, they want to have one biological child for each. So they look for a carrier who might be in advance, not necessarily, this is definitely not enforceable, but knows that they are looking to have this done more than one time. But sometimes the timing doesn't work out. Like I just had a couple who loved their first carrier and they wanted her to do it again, but they had just had a baby and they wanted to basically wait until COVID was over to have another one. So they had a baby with her and they wanted to basically wait about two years because they wanted to wait until the vaccine was available. She did not, she only wanted to wait one year to do it again. So they decided to go their separate ways and she got another couple and they waited and just got another carrier and are doing a transfer. So, you know, sometimes the timing doesn't work out in terms of how people want to plan their family.
Rena: I guess. What about sort of from your experience, would you have any sort of words of, um, and I guess this would be maybe more putting your sort of personal hat on rather than professional, any words of advice for anybody just starting this journey you know, who's feeling really kind of intimidated and fearful and nervous all the mix of emotions when might feel when they're faced with contemplating a surrogate. You know, what are sort of some words of advice you would say?
Melissa Brisman: Well, I always tell people what my doctor told me a very long time ago, which is keep your eyes on the prize, right? So at the end that we, you want a baby and some of the things that you stress about really should not have any effect on the health of the baby, right? So whether or not you find out within 24 or 48 hours, the results of a doctor's appointment that is not an urgent doctor's appointment is not going to have an effect on the health of the baby, right? Whether she has one cup of coffee or one and a half cups of coffee or, or, you know, dyes her hair once at the six month is not normally something that an OB would consider affecting the health of the baby. So I try to put things in perspective. And also, I always tell people, you know, you have two types of people in the world. You can always view it as, I have to do this, how horrible this is, or I can view it as this as a wonderful option that people did not have 50 years ago. I am so lucky. Right? So I always tell people, you know, try to look at the positive. It's really hard to do. I know when you're going through it. You try to be patient. That is the hardest quality to have is patience when everyone around you is having a baby.
Rena: Oh, for sure. I think, you know, I see people struggle with that daily and you know, certainly the advent of social media and people choosing what to post I think is really tough when it seems like everyone's having a baby and they're having them very easily, which I certainly know is not the case and, you know, but I think, you know, people portray what they want. And so I think that's really, really difficult.
Melissa Brisman: I also think that part of the process that is, is hard is that people always think that this is only happening to them in terms of, so when you see somebody on TV who had a baby, and I'm sure you experienced this also, but especially in the New York area, there's a lot of people who decide to have a baby at an older age, right? Because there's a lot of working people in the New York area. And so they'll see on TV that Sarah Jessica Parker had a baby from a carrier at 47 and she went on TV and she didn't say that it was donor egg. Or she didn't say that it was her egg, but everybody just assumes that it was her egg. Right? We know we have no idea whether it's her egg or a donor, but they'll come in at 47 and say, I want to have a baby using my egg and look, everybody in my neighborhood is carrying your baby and they're 47 years old. And they have no idea that, you know, 99% of those 47 year olds are not carrying their own eggs.
Rena: Agree. That really, that bothers me so much, you know, because I think it makes people think, you know, right, well, this person had a baby at, you know, 45, 49 and it was their egg and you know, you and I know cause we're in the field, probably not, but I would say, but just be open about it. You know? And I think, you know, science is incredible on what we are able to offer in terms of conceiving it's it's, it's amazing. And I wish people that were in the public eye, you know, would share that just so other people can understand and not feel alone.
Melissa Brisman: Yeah. And I always tell people a lot of times, you know, one of the biggest things is when people try to use their family to be a carrier. I mean, that's another issue that really, you have to think about a lot because one of the things about my children is nobody in my family or my friends. I mean, this is my job. So at work, I certainly talk about it in my career. However, when I'm at an event, nobody refers to my children as anything other than my children. There's no talk of who carried them, who gave birth to them. However, if you have a family member that is a lifelong commitment to acknowledging your infertility, right? So especially if it's your sister. So that means if you have a very outspoken relative or mother or mother-in-law, or your sister herself just likes constant attention, that may be a topic of conversation at every holiday dinner and there may be feelings of guilt and it takes a special kind of family member to make it work. And I once had a case where a sister, one sister carried and one sister donated the eggs and the sister that donated the eggs felt incredible pressure from her mom to donate her eggs. And for five years after the twins were born she did not visit her other sister because she felt that they were her kids and she couldn't see them without making her other sister feel bad. So it's very important to examine...using a family member is cheaper and psychologically at the time you do it is easier, but psychologically in the long run, it is not easier. It isn't much harder.
Rena: I think that's a really interesting point. And again, I think touches on why it's really important to take the time to work this out and process, you know, with a professional and unpack all of this. And I think so many times, you know, people in this journey, right, they being patient is so hard and they want what they want now. And I think a lot of times people don't think, you know, long-term because they're so focused on, well, I want this now. All of my friends are having babies. I want my baby and to take the time, okay, well, a family member seems easier and cheaper now, but let's think out five years from now, you know? And then let's really look at sort of the cost benefit analysis on that, you know, does that change what you want to do?
Melissa Brisman: Absolutely. And not only that, I find that a family member doesn't change, right? So if you come to me and say, if the baby has down syndrome, I don't think I could handle it. I would want the carrier to have a termination, but your sister is hesitating on whether or not you would have a termination and you say, well, I have PGS tested embryos. That's not going to happen. The odds are one in a thousand. And then you have a baby that has a defect and your sister. Won't abort it. We're in a problem, right? When you're, when you're obtaining a stranger, you obtain the qualities that are a good match for you. Your sister is who she is. She's not changing, right? So we can't, we can't make her just like they say, you can't make your spouse, what you want your spouse to be, you better accept that person for who they are when you marry them, you can't make your sister who you want her to be. And that dynamic is not going to change when she becomes your carrier. It's just going to become harder.
Rena: I think, you know, that goes to what I often talk about with people, which is, you know, building out supports and you need to let other people hold space for your feelings so that your partner can be your partner and your sibling can be your sibling and your friends can be your friends, et cetera. And so, you know, I think what you're saying, sort of sounds like it applies to this, right? You know, you want your sister to be your sister and you want your carrier to be your carrier because that's an entirely new and different role. And it's almost, it's a professional relationship of sorts. Right? And so it may make it a little bit easier to walk that journey with someone that, you know, their job is to hold space and be your carrier and that's what they are. And, you know, that allows your family to remain your family and your friends, your friends. You know, not to say there aren't, you know, stories and instances where someone's sibling does carry for them and it's amazing and perfect and et cetera. You know, I think another thing that I know the media loves to put out these stories of someone whose mother carried for them. You know, those are often in People Magazine, which again, I think is probably important to remember, well, that's there, those are sort of sensational stories. And again, you know, you need to figure out what's best for you is not, it's not black or white.
Melissa Brisman: Yeah. No, absolutely. And I think that really the issue is not skimping on the screening. I think you can use anybody, right? You can use, can use a sister, you can use a friend, you could use a paid person, but we really want the screening to be made, make sure that the screening is correct. And then it's done, you know, to make sure that the arrangement goes through to the best possible way.
Rena: Right. Exactly. And I know your, your website, reproductivelawyer.com. If you go to the resources section, you have really amazing resources and links for surrogacy and sort of all things, family building, but I often direct people to your website. Again, it's reproductivelawyer.com and we'll put it in the show notes as well, but it's a really fantastic resource list for people to go and find information about surrogacy as a really good reputable place to start.
Melissa Brisman: Thank you. And also there are, there is a listing in there of scholarships because I know that people find a lot of times this is, you know, a financial burden and people forget that there are some ways to ease that burden. So if you go under resources, you can look at and see if you might qualify for any of them.
Rena: Good. I love that you said that. Yeah. I mean, I think there are ways out there to try and take off the barrier of cost. You know, as I said at the beginning, I certainly think cost should be a barrier to care and so there are things out there. So, you know, don't feel so upset and as though you have no options, if you've listened to this episode and kind of heard the financials and now feel like, well, you know, it’s sort of a mountain, I can never climb. So I'm out. I think knowledge is power, starting to make connections, talk to people. Research is really important.
Melissa Brisman: Absolutely. Absolutely. I think you need to be prepared.
Rena: Totally. So I so appreciate you coming on. I've learned so much from you. I feel like we could talk about this forever. I think this was a really great sort of intro into surrogacy and the new wise and hopefully gave people a nice picture of what it is to go that route. And again, I definitely encourage them to go to your website and start to research and they can, of course, reach out to you. Your contact information is on your website if they want to, you know, kind of take a deeper dive. So the way I like to wrap up these podcasts is by each sharing something we're grateful for in a gratitude cause I like to end on a note of positivity. So would you like to tell our listeners something you are grateful for today?
Melissa Brisman: Well, my husband just was able to get the vaccine cause he's a physician and I worry about him every day because he works in a nursing home. So I am happy that I will have a little less worry.
Rena: And I guess for mine, I say this all the time but it’s true…. and you know, wanting to change something in this space. So I'm so grateful to know you have you as a resource on and talk about this.I know a lot of people were looking forward to this episode, so I'm really excited to be able to release it.
Melissa Brisman: Well, thank you very much. It's always a pleasure. And I always love talking about how I made my family and hopefully giving access to other people who otherwise wouldn't know about all of these options.
Rena: Yes, well you are a fantastic, wonderful and, and truly inspirational and an amazing voice in the field. So thank you so much.
Melissa Brisman: Thank you for having me.
Dara: Thank you so much for listening today and always remember: practice gratitude, give a little love to someone else and yourself. And remember you are not alone. Find us on Instagram @fertility_forward. And if you're looking for more support, visit us at www.rmany.com and tune in next week for more Fertility Forward.

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