Posted on June 17th, 2021by RMANY

Ep 64: The Legalities of LGBTQ+ Parenting that People Don’t Know About with Gena Jaffe

Fertility Forward Episode 64:

When Gena Jaffe had a baby using her wife’s egg, she learned that even though the baby was genetically her wife’s, only she, as the woman giving birth, was considered the legal parent. Gena discovered just how much confusion and misinformation is out there concerning the legalities of LGBTQ+ families, even among lawyers. As an entrepreneur and lawyer herself, as well as a mom who has gone through fertility treatments to conceive two children, Gena has a wealth of knowledge on both fertility treatments and the legal implications relating to them. It was this expertise that led her to establish Connecting Rainbows, an organization that helps those in the LGBTQ+ community start, grow, and protect their families by offering legal and fertility resources. Today on Fertility Forward, Gena sheds light on some of the confusion around what the law actually says about LGBTQ+ families. Hear about what second-parent adoption is and why you may need to do it, the importance of having a will, and things you need to know before using a sperm donor. She also shares her advice and encouragement for anyone starting out on their own fertility journey, so be sure to tune in today!

Transcript of Episode 64

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.
Dara: Gena Jaffe is a mom and serial entrepreneur. She and her wife did the reciprocal IVF for both of their kiddos. Her wife's eggs, Gena’s oven. While Gena is a lawyer, she came to learn that her wife Jordana would have to adopt the kids in order to be considered a full legal parent. Realizing that most people and even lawyers didn't know this was an important step in the parenting process for a lesbian couple, Gena created a business to help educate the LGBTQ+ community. Her new business, connecting rainbows, is an organization that helps those in the LGBTQ+ community start, grow and protect their families by offering legal and fertility resources. They provide a directory of attorneys, fertility clinics and legal and fertility resources, and they also provide a lot of extra information. You can find her at connectingrainbows.org. We are so happy that you are here today to share with us all about connecting rainbows and how it got started. Thanks for being here.
Gena Jaffe: Thank you for having me.
Dara: So take us back. How did you initially get started with connecting rainbows?
Gena Jaffe: I mean, we got to back a long time. We're going to travel way back to when I didn't have kids, I guess. So I'll share my fertility, my fertility story, if that's kind of where it starts. So my wife and I both had a desire to get pregnant and, and carry our children. And my wife is three years older than me. So, you know, that, that was okay, she'll go first. We'll use the same donor and we'll do IUI. And we just naively thought it would be that easy and we'd each have the kiddos and all that. Well, my wife has serious anxiety and going off of the medication to get pregnant just was not good for any party involved. So, you know, kind of put a screeching halt to that. And, you know, I said to her like, look, why don't I get pregnant instead, you know, while, and then we'll kind of regroup with you. And she said, you know, like, look, if I can't get pregnant, it's too devastating to give up a biological child and a pregnancy. And I said, well, why don't I carry your eggs? And I didn't even really know that was a thing then, like it was, I don't know. I mean, I knew of surrogacy, so, you know, had to be possible. And you know, after like a few days she was like, this, this sounds perfect. It sounds amazing. You know, cause her one sister said to her, Hey, if I could delegate pregnancy, that would be like the greatest thing ever. And, you know, still get the kids and you know, not have to be pregnant. And so we kind of switched gears and went back to the clinic and started all the testing on me. And it turns out I needed to have surgery because I had a cyst on one of my ovaries. So then that kind of delayed things then went through the egg retrieval and did a transfer and ended up with our son. So fast forward, another, almost two years, we were going to go in for baby two. The plan had been that I would do IUI with the same donor, but we had these two frozen embryos. And I just knew them very differently now that we had our son and I realized that, you know, biology didn't mean anything anymore to me, like I didn't need a biological child. So we went in for an embryo transfer. The first embryo did not survive the thaw and the second did not take. So now we're back to square one and we decided to do another egg retrieval. So go in, they can't even see my wife's ovaries because she had a fibroid that got so massive that they needed to remove her uterus. So she gets a partial hysterectomy. They kept her ovary so that we could get her eggs. In the interim we decided to try IUI just because we wanted to move the process along. Three failed IUIs later, we ended up back in another egg retrieval with my wife's eggs, did a transfer, and now we have a daughter. So, very long-winded answer. We shared this whole journey on social media. So I have a social media business and it led to a lot of questions about the fertility journey. And then we shared how we had to go through something called second parent adoption. So every state I need to say, every state is different in how the laws work and what you need to go through. But for the most part, if you're a les, a cis-lesbian couple, the, and you go through reciprocal IVF, or even just IUI, the mom that gives birth, the parent that gives birth is actually considered the legal parent. The one who does not, even if they are the genetic parent, they are not considered the legal parent. They actually need to go through and either a parentage judgment process, depending on the state or a second parent adoption, or it's sometimes called a step parent adoption process. So my wife had to adopt her own biological children in order for us to be considered the full legal parents of our kids. And I want to say that this is across the United States, across the country. Doesn't matter where you are. The birth certificate is not enough to prove full legal, parental rights. I will repeat this and like, until they change the law. And so I shared this on social media and people started freaking out and saying to me, Hey, well, my lawyer said, you know, that it was fine. And I was like, well, your lawyer is wrong. You know, I came to learn that a lot of lawyers don't know what they're talking about when it comes to a same-sex couple that is doing fertility treatments and stuff like that. Not because there any ill intentions, it's just that it's a very niche area of law and there's a lot of misinformation out there. So I decided to create my own directory of attorneys who specialize in family formation and assisted reproductive technology. And then very quickly that grew into a major organization that has the fertility resources and surrogacy and a blog and a blog and all of that, just so that I can ensure that my community is taken care of because it's one thing to be competent in your certain area of law. It's another thing to also be able to work with the LGBTQ+ community where the laws are different. Sometimes there aren't even any laws at all. And so, yeah, that's where it came from.
Rena: Wow. What an incredible story and incredible thing to come from it too. So your community, you have like a list? So if I had a patient in New York who said, I need a lawyer. I would say, you know, go to connecting rainbows. They have this whole great database and you have people from all over?
Gena Jaffe: Yes. So we currently have 40 states and we have Australia and Canada. So we have two provinces in Canada, but Canada is pretty much just federal. Like you can, you know, you can work with anybody from any province for the most part, but we have, yeah. 40 states are covered at this point. Actually, we might've had 41. Now we're constantly growing. This is only a couple months old. So, you know, been really just like digging deep and getting in there. But yes, the hope and the goal is to cover all of North America before we really start expanding.
Dara: And Gena, you're a lawyer yourself, aren't you?
Gena: I am, I'm a business lawyer though. So I don't do this type of law at all, but, but that's, what's, I think that that is what is so amazing about this organization is really every piece of me, it's the lawyer, the gay, the fertility. It really just encompasses all of who I am and in ways that I want to help people and especially my community. And I always wanted to be a doctor, but I didn't want to go to med school. So now I get to like play in the medical field, you know, pretend that I'm a fertility doctor.
Rena: So is this a passion project for you and you have another job?
Gena Jaffe: So I have three businesses that I run. Yeah. Two of them are really very part-time. So I have my own law practice and I've had that for seven and a half years. Actually. I have a social media business and now I have connecting rainbows, which has turned into my full-time business.
Rena: Oh, wow.
Gena Jaffe: Yeah. Yeah. Very unexpected and unintentional.
Dara: Isn’t that the best when it, when it comes just naturally that way?
Gena Jaffe: It is, you know, I'm reading Big Magic by Elizabeth Gilbert now. And she talks about how all throughout our lives, there are little, there's just little waves of inspiration that come and you need to take, when it comes to you, you need to run with it or it will go find someone else. And I really truly feel like that happened here. I had this idea and I just ran with it. And I, again, originally just wanted to create this tiny little directory of lawyers. And that was it. That was my whole plan. I'm like, I'm busy. I have two young kids. I had a baby during the pandemic and I have these other businesses, like, what am I, you know, but the universe had other plans.
Rena: That's incredible. And you really just rolled with it. And you know, we talk a lot on our podcast about how it's so amazing to meet other people who got into this line of work, you know, wherever they're at, sort of in the fertility space because of a lack, because they went through it themselves, they saw there was a lack and then they created something to make it better for the community. And that's exactly what you’ve done which I think is so inspirational.
Gena Jaffe: Yeah. I mean, I think that when it comes to, you know, same-sex couples, especially having growing their family, it can be overwhelming. Like we don't, you know, a lot of people don't even know where to start and I get questions constantly about sperm and, you know, conversations I never thought I would be having. What clinics do I go to? What questions do I ask? What are the types of treatments that I can have? You know, and, and being able to firsthand share my experiences with, you know, IUI and reciprocal IVF, and, you know, choosing a donor and now having the conversation with our son about having a donor. And we actually just connected with donor siblings and, you know, just kind of sharing that openly with other people has, has been amazing for, for both I think for me and for them.You know, I had other people that I followed on social media when we were going through the process and I found it just so helpful, even if I was quiet and, you know, in the background and just observing and, you know, I feel like that's kind of now my, my role of giving back.
Dara: You're really paving the way for yeah for this untapped area that I think people are really I’m sure, interested in and really to get that support, that, that hasn't been there before. And it's what I'm still shocked with is that there's so much misinformation out there and that it took your situation to really realize that there wasn't, there, there wasn't, there was a hole that was missing for so long. So if you were feeling that way, I'm sure so many other people have felt that too.
Gena Jaffe: Yeah. I mean, this all really started in October when Amy Coney Barrett was nominated to the Supreme Court, I put a post out on my personal Instagram that said like, Hey, LGBTQ+ community, here's some things you might want to consider putting into place to protect yourself God forbid something were to happen. And it was, you know, wills, power of attorney, healthcare proxy, and adopt your kids. And that post was shared thousands of times. And that's where all these questions started coming in. And it's funny because my dad was the one who was like, you should tell people about this, like the, all like the estate planning stuff. So I have to like give a shout out to my dad, you know, to just kind of talk about that. And I, I think, I feel like that was kind of the catalyst of getting this idea kind of rolling of, wow. People really don't know that this is something that you need to do.
Rena: Yeah. That was a scary time. I remember when that was happening and people were shocked that you know, what she wanted to do in terms of just, you know, fertility laws.
Gena Jaffe: That was insanity. And I think that people started getting a little, maybe not lax is the right word, but they're like, oh, well, Biden is an office now. It's great. But people don't realize that there's separation of power here. Right? Like we have the executive branch, we have the judicial branch, you know, they don't work together in a sense, you know, like the Supreme Court could, could overturn gay marriage and Biden can't change that. Like, he can't change that unilaterally. And so it's, we still do have to worry about the Supreme Court and the things that, that could happen there. And that's kind of why I was saying like, get these things into place now, because the breath, they can't retroactively take it away from you. If you adopt your kids, even if like, God forbid, they were like, gay marriage is over and like, gays can’t adopt the kids, like you already have that. And I'm not saying that that's going to happen, but you know, like God forbid something were to go wrong, you have this in place. Like, you're good.
Rena: So would that be your recommendation? Because I certainly know plenty of couples who they didn't take that step. They just felt like we don't need to whatever. Would that be sort of your strong recommendation from a legal perspective that you really need to move forward with the adoption, just to protect yourself?
Gena Jaffe: Either an adoption or some states allow for a declaration of parentage, like a parentage judgment. You want a judgment from a court that you are both the legal parents.
Dara: A judgment is enough.
Rena: Then you have no right to the children.
Gena Jaffe: So it's, it's questionable. It really, it's going to be questionable based on where you live. There were two cases recently in Michigan where they said, no, this other mom is not the real mom. Now the one lost on appeal. And they were, you know, they, they sent it back and they're like, no, no, no, no, no. Like you gotta, you gotta recognize this. Like, there's always, obviously certain facts of the case, but you know, there have been cases where, you know, people gotten divorced and there's custody battles. If somebody, you know, if there's a death, are the grandparents going to come and say, Hey, no, these are my biological grandchildren. I'm taking them. You know, there are things that, that happen, have happened. There are things that still need to be adjudicated. I mean, in New York, you know, as you guys know, there's the new laws which really have opened up parentage for, you know, the LGBTQ+ community, allowing paths to parentage in a much easier way, but it still does. You still get a judgment to just protect yourself no matter what were to happen. Death, divorce, travel, you know, anything like that.
Rena: What other recommendations would you make if someone came to you and they were kind of just starting out on this and feeling super overwhelmed? You know, are there any other strong recommendations you would make either from a legal perspective or just, you know, from your own personal experience?
Gena Jaffe: Yeah. I think that a great place to start is getting a will, you know, just like have something in place. It can be something super basic. Like I don't even care if it just says I leave everything to my partner and my partner leaves everything to me. Like something basic just from the beginning, because God forbid something happens during pregnancy you want to make sure that there's something in place. If you're going to use a known donor, like a known sperm donor, you need to see a lawyer first before anything happens at the clinic because that otherwise that donor actually has parental rights. There's things that you just don't even think of. So I think that, you know, like ask questions. Like we have, you know, on my website, we have blog posts, we have blogs, we have information just to provide, you know, education around certain topics. But always, you know, feel free to ask, ask questions, email, email me, email a clinic. I always say to people that like, when you go to see a clinic, you're interviewing them to make sure that that's a good fit. This is a very intimate and emotional journey. You want to make sure that, you know, wherever you're going feels like a good fit, go talk to five clinics if that's what you need. Talk to four, five lawyers. It doesn't, you know, just to make sure you have all the information you need upfront, because the last thing you want to do is have to handle something, especially legal stuff when you're in a crisis.
Dara: And you said such a great platform to make it easier for people to find that information and get the help and the guidance that they need. Are there any specific topics on your blogs, your blogs that you find super interesting for people to hear about?
Gena Jaffe: I think, I mean, I think that the, the hottest topic is the birth certificate issue, which we talked about that, like, why is the birth certificate not enough? And then more recently, things that I've been talking about personally are just the sperm donor issue of, you know, using an open donor versus an anonymous donor using a known donor. We went through a sperm bank ourselves and we chose a donor who is open, meaning when our kids turn 18, they can, you know, reach out to the Cryobank who would then connect them to donor. And we found some donor siblings through there's a sibling registry. And so we've been kind of navigating that process. And so that's something that I've been talking about on my personal Instagram right now. And so that's definitely been a hot topic of, you know, people wanting to know more and kind of swaying their decision, whether or not to use a donor, a known donor so that the children could have a relationship from the beginning if they so choose. Or maybe it's, you know, kind of making them rethink using an anonymous donor. For us personally, and it's such a personal decision, we didn't feel like it was our right to keep the donor from our children if they so chose to connect with him later in life, which we hope they do. You I'm like, I want to meet him and thank him. And so that's been a newer kind of very personal but hot topic that I've been kind of talking about. And I'm interviewing a therapist next week who deals specifically with all things, fertility, but does a lot with donor stuff. And is going to talk about like, how do you talk to your children about where they came from and donor siblings and all of that. And it was like, a very self-serving interview. I'm like, how do I talk to my four year old about this?
Rena: I think that's great. And I think, you know, certainly something so many people have questions about and really have a tough time navigating. I think it's so important to get professional help because how are you supposed to know.
Gena Jaffe: I have no idea!
Rena: Well, good for you guys for, you know, being prepared and asking and it’s so brave to sort of share this in real time, you know, with the world as you go through it.
Gena Jaffe: Yeah. It's not for everyone, for sure, being so open and public. And, you know, I get a lot of negative comments and opinions, but for every one of those, I get a hundred other positive ones. So for me it's worth it. And again, as I shared, you know, people paved the way for me. When we were going through our journey, you know, I was following other lesbian accounts that were going through fertility treatments and it was just so helpful to see people who were just a few steps ahead of me kind of what to prepare for and what they were going through and then being able to kind of connect and commiserate over our own journey.
Dara: The idea of, of giving back, getting so much out of your, your personal journey and then giving back to, you know, paving the way for people down the road, I think is remarkable.
Gena Jaffe: Thanks. It's fun. I, you know, for the most part, it's, it's a positive experience. Obviously no matter what you're sharing, you know, you're going to get people who don't agree with you or have their own opinions, but, you know, I think that most things don't bother me just because I don't believe in the things that they're saying or they're just ridiculous.
Rena: Well, good for you and what an amazing resource and community it sounds like too.
Gena Jaffe: Thank you. Thank you.
Dara: Do you have any idea of where this will take you down the road or what you would like to see work-wise, with your, with connecting rainbows?
Gena Jaffe: You know, I mean, this whole idea is really new year's of this year 2021, and it is, it looks so different now in May than it did back then that I cannot even predict. I, my hope and intention is that I would really like to have a team. Right now it's just me handling a lot, a lot, a lot of things. I really want to expand it. I want as all the resources as possible to, to be able to help the community. I'm looking at kind of collaborating and forming partnerships with other similar-ish organizations, you know, just to spread the word and help each other's communities, which has been really fantastic. It's great. I think a lot of gay organizations are very, like, we believe we have such a similar mission and we believe so much in the cause that, you know, it's really collaborative and very supportive. So it's really, really great. I just want to help as many people as I can. And again, this will always be a free resource for my community and to just, you know, provide them with information and guidance and support wherever they are. You know, it's not only fertility. I share coming out stories and transition stories. And, you know, I do want it to be a platform for that. No matter what part of the alphabet, you're a part of, the LGBTQIAA P two S plus, you know, that, you know, you come and you can find a story that you can relate to. But again, its just me right now. It's hard to build out too much, too quickly, but yeah.
Rena: Well that's amazing. What an inspiration and great community and we’re so happy to have you on and share this and spread the word. Really really wonderful.
Gena Jaffe: Thank you so much.
Dara: So we have, we told everyone where to find you at connectingrainbows.org and what is your Instagram handle?
Gena Jaffe: So my business one is @onnectingrainbowsorg and my personal one’s on there too. In one line from there.
Dara: We are thrilled to have you on and how we close out our podcast is discussing gratitude, what we're grateful for today. So, Gena, what are you grateful for?
Gena Jaffe: I'm grateful this morning, I woke up extra early and actually got a lot done to the sound of the birds chirping while my children slept in for the first time in a really long time. So I literally had an hour and 45 minutes to myself this morning to have a hot cup of coffee and get some work done. It was glorious.
Dara: It sounds like it sounds like a simple pleasure, but I fully get it. That rarely happens in my household.
Gena Jaffe: No, no, my, my daughter slept until seven and yeah, it was just, I intentionally set my alarm last night. I'm like, you know what, I'm going to get up early. I want to try to get something done. And I, you know, I was like, maybe I'll get 45 minutes to myself. And I had an extra hour, like God was like, I got you.
Rena: So good. Some found time that’s the best.
Dara: Rena?
Rena: I am grateful for, I will say community today, just community and having people to share anxieties with and people to help me, you know, get centered when I need centering. So I'm going to go with community. I think community is really, really important. So having a community to help you get centered and sort of organize your thoughts when they're going all over the place.
Dara: I want to piggyback on that because what I had initially in my mind was with support. Support in this whole space and I feel like having this podcast has been such a great platform for us to not only get the information out to people who really can use it, but it's been very helpful and supportive to myself personally. And it's helped me. I don't know, it's helping with my own personal journey and it's so nice that we can all be there to help each other out and learn from one another, make great connections and spread what we know and help other people help us. So it's great.
Rena: I love that. Well thank you so much. Any sort of parting words? We'll put, you know, all your social media on our Instagram, everything so people know where to find you.
Gena Jaffe: Perfect. Perfect. Thank you for having me. I hope wherever you are in your journey goes smoothly and know that the bumps in the road are, are really there for a reason they're guiding you. And, you know, I always share that if it wasn't for the negative test after negative test, after negative test, we, I wouldn't have my daughter today and it would have been a different baby. And I know I would have loved, but like, I can't imagine my life without, without her.
Rena:Thank you so much for coming on and sharing your story.
Gena Jaffe: Your welcome. Thanks 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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