By MaryAnne Motter Cullen, The Legal Intelligence – Suburban, Volume 5, No. 12
March 22, 2000

Surrogacy Arrangements Appear to be on the Rise

When desperate clients come to see Melissa Brisman, They see her as their last hope for having a biological child. That’s because Brisman’s specialty is reproductive law at McFall Riedl & Miskowski’s Ridgewood, N.J., office.

Brisman can empathize with her clients because she is a parent of twin boys, Andrew & Benjamin, through a gestational carrier, better known as a surrogate mother. Now she is using her knowledge of the legal system to make other couples’ dreams of having children come true.

The Harvard Law School graduate, who specializes in family and reproductive law, has seen an increase in surrogacy and gestational carrier arrangements in the past five to seven years as technology has improved the chances of success. However, she warns any attorney of thinking of jumping into this area: “It is very stressful because the situations involve heated emotions, which can be complex and difficult to handle at times.”

Brisman said legislation has not kept abreast of technology in this area. She noted that in New Jersey, surrogacy is not illegal as long as no one accepts money in the exchange of the child. However, she said gestational carrier agreements have not yet been addressed by case law or legislation in New Jersey.

The field of third-party reproduction is sometimes called collaborative reproduction, said North Wales, Pa., attorney Lawrence Kalikow, who became involved in the area in the early 1990s – with a particular emphasis on surrogate parenting arrangements – because he has a child through a surrogacy arrangement.

“Although I initially became involved with surrogacy on a personal level,” he said, “I soon found it to be a fascinating and extremely challenging area of practice, particularly when legal issues interface with cutting edge advances in medical science.”

Kalikow said he sees many positive aspects of surrogacy. “I am passionate about surrogacy as a human endeavor because I know from both personal and professional experience that it can bring great joy to all involved in a unique collaborative effort. From a legal standpoint, surrogacy, as a family-building option, implicates both the right of privacy and procreative freedom.”

Kalikow said of the thousands of surrogacy arrangements that have been entered into nationally, only a handful – far less that 1 percent – have resulted in custody disputes. Indeed, Kalikow said a “properly structured surrogacy arrangement is the ultimate in ’planned parenthood.’”

Such an arrangement includes pre-pregnancy medical and psychological screening that would rarely, if ever, be performed in connection with either conventional conception or conventional adoption, he said. It also includes “a comprehensive written agreement memorializing the intentions, as well as respective obligations, of the intended parents and the surrogate mother,” he said.

Like Brisman, Kalikow said the field of surrogate parenting is not an area an attorney can jump into easily. “Because of the complexity of a surrogate parenting arrangement and the multiplicity of variables that can affect its outcome, however, there is simply no substitute for experience,” he said.

In a similar vein, Brisman suggested an attorney try not to handle simply one case because learning the law in this area can be time-consuming. For example, because she has handled a large number of surrogacy and gestational carrier cases, she spotted a pattern of problems and can now anticipate these problems ahead of time.

Then, there are the emotional effects. Brisman said this area of law is one where “you have to have your heart in it to do it. You get late-night calls from clients if something goes wrong. It is very disruptive.”

Clients also expect you to be “more than a lawyer,” said Brisman, because there are numerous non-legal matters that need to be addressed, such as whom to contact at the hospital prior to birth and whose names should be on the birth certificate.

In addition, Brisman points out that practicing in this area is not as profitable as other areas of law. She said the number of cases she handles varies from 10 to 30 per year.

Of course, that doesn’t mean a case can’t creep up on you when you least expect it.

Frozen embryos weren’t part of a typical divorce case property dispute when Amy Goldstein started practicing law 17 years ago. However, the domestic relations attorney at the Vorhees, N.J., office of Fox Rothschild O’Brien & Frankel, said the issue of what to do with frozen embryos arose in a divorce case she handled.

Goldstein’s client wanted the embryos destroyed, while the father, for religious reasons, wanted to either donate them to another couple for use or use them in a subsequent marriage or relationship.

“The challenge of applying centuries-old constitutional principles to 21st century technology is fantastic’” Goldstein said. “I believe the challenge for the trial court was to assure that the individual rights of the parents were not lost in the debates which the case spawned over technology, religion, morality and ethics. I believe this will be the challenge I the future as well. It is the same challenge which started with the abortion cases, and it will continue well into the future.”

In Goldstein’s case, J.B. v. M.B., the trial court found in favor of her client’s wish to destroy the embryos, but the case will be argued on appeal March 28.

One indication that this is a hot legal issue is Goldstein’s participation in a panel, “Reproductive Technology and Its Impact on Children,” to be held Nov. 18 at the University of Pennsylvania Law School as part of the Pennsylvania Bar Institute’s “Family Law Symposium 2000: The American Family in the 21st Century.”