Transcript

Lauren Duffer: We always tell people if you’re going to enter into a traditional surrogacy, it’s like you were married to that person. So if that surrogate decides at the end that they do not want to relinquish their parental rights, you’re looking at paying child support. You’re looking at co parenting with somebody. There’s absolutely nothing you can do to force them to relinquish.

Voiceover: You’re listening to the Texas Family Law Insiders podcast, your source for the latest news and trends in family law in the state of Texas. Now, here’s your host attorney Holly Draper.

Holly Draper: Today we’re excited to welcome Lauren Duffer to the Texas Family Law Insiders podcast. Lauren is an attorney with Sisemore Law Firm in Fort Worth, Texas. She received her Bachelor of Arts degree in speech communications from Baylor University, where she was a member of Zeta Tau Alpha Sorority. Lauren then received her law degree from Southern Methodist University in Dallas. Lauren has extensive training and expertise in collaborative divorce, modifications, assisted reproduction, child custody, complex marital property division, pre and post marital agreements and adoption matters. As a family law attorney, Lauren exhibits compassionate empathy to all her clients who find themselves in difficult situations, while skillfully negotiating unique resolutions to meet her client’s needs both in and out of the courtroom.

Lauren is a member of The Arlington Bar Association where she’s served in numerous leadership roles since 2009. She’s also a charter member of The Arlington Young Lawyers Association and served as president from 2010 to 2011. Lauren is a member of the Collaborative Lawyers of Arlington and Mansfield, State Bar of Texas Family Law Section, Collaborative Divorce Texas, the Texas Car College, International Academy of Collaborative Professionals, American Society of Reproductive Medicine, Academy of Adoption and Assisted Reproduction Attorneys, Resolve, Tarrant County Family Law Bar Association and State Bar of Texas Collaborative Law Section. Thank you so much for joining us today.

Lauren: Thank you for having me.

Holly: So why don’t you start by telling us a little bit about yourself.

Lauren: Well, I grew up in Arlington, Texas. I grew up with a father who was an attorney, but he was an attorney at Haynes and Boone and his white collar crime and anti trust. So becoming an attorney was always kind of an option for me. It was always kind of on the table. I am married to Ronnie Duffer who grew up in Venus, Texas, and we have two little boys. Brody who is age 10. And Blake who is age six. They both keep us very, very busy. When we say they’re our second job because they’re involved in select baseball, they play football, basketball, so outside of our working hours, we’re consumed with them. In our free time, we love to travel to Aruba. We’re all diehard sports fans, big Dallas Cowboys fans, but most importantly, we love all Baylor sports and we’ve already brainwash both boys, and they will both become Baylor Bears and always support them. So we’re diehard Baylor fans at our house.

Holly: So I’m a little bit jealous that you’re able to brainwash your kids into being interested in things that you’re interested in, because my children have no interest in any of the things that I like.

Lauren: I think I saw you put something about that on Facebook at one point.

Holly: So but anyway, back to back to the law. How would you describe your current practice?

Lauren: Well, my current practice is all focused on family law. I ran my own firm since 2008, and then recently joined the Sisemore Law Firm. So we handle all aspects of family law, the divorce, collaborative law, prenuptial agreements, post nuptial agreements, custody, child support, all that fun stuff. But I am fortunate enough that a large part of my practice does revolve around what we call are called the ARTs area, which involves surrogacy and donation, both embryo donation, sperm donation and egg donation. And it’s become a huge part of my practice. So at this point, I’d say it’s probably 80% of what I do. And when I first started my firm, it was probably about 30% of what I did.

Holly: So for those who might not be familiar, what does ART stands for?

Lauren: It’s assisted reproductive technology.

Holly: That’s a really interesting niche. And I think most family lawyers probably know very little about the area and would be surprised I recently had a case where there’s assisted reproduction issues. And there’s a lot of things in the family code very specific to assisted reproduction, you know, who, how does somebody become a father, or a parent, you know. What forms have to be signed all those things. And I think a lot of attorneys probably don’t have any idea that that is even out there.

Lauren: That’s true. I have a lot of conversations with people. And even when I’m done before COVID when we were going more in person, I would have attorney stop me when I was leaving from different hearings. And they would ask me, what kind of law is that? I’ve never heard of it. And even people who had practiced forever had no idea that it was even in the family code.

Holly: So we’re gonna start by talking about surrogacy, which is one piece of the assisted reproduction laws. Can you describe what surrogacy involves?

Lauren: Sure. So it involves either a couple or an individual who’s unable to carry a child on their behalf. And so they contract was with a woman who would be able to carry the child for them. So we have different versions of surrogacy. We have lots of single intended parents, same gender couples, or can be a heterosexual couple.

Holly: So what are the differences between gestational surrogacy and traditional surrogacy?

Lauren: So in a traditional surrogacy the gestation or the surrogate carrier actually has a genetic link to the child, and so that is actually not protected by the Texas family code. In a gestational surrogacy the gestational carrier has absolutely no genetic link. And that’s the type of arrangement that the Texas family code does protect.

Holly: What are the legal risks of going the traditional surrogacy route?

Lauren: There’s a lot of legal risks. We always tell people if you’re going to enter into a traditional surrogacy, it’s like you were married to that person. So if that surrogate decides at the end, that they do not want to relinquish their parental rights, you’re looking at paying child support, you’re looking at co parenting with somebody, there’s absolutely nothing you can do to force them to relinquish. So in our traditional surrogacy places, we do treat them similar to a gestational surrogacy where we do still have them enter into a contract that sets out what the intention was.

But it’s not an enforceable contract, because we have no protection under the law. Then we treat it as an adaption and termination case after the birth because she can’t relinquish her rights until 48 hours after. And then we still deal with all the same issues, we would in any traditional adoption case. If she’s married, we have to have her husband relinquish. And then depending on if we have a same gender couple or a single intended parent, or whatever the case may be, then we determine kind of next steps as far as establishing parental rights.

Holly: So what all goes into a gestational surrogacy agreement?

Lauren: Well, I’m a very A type personality. So mine are extremely detailed. And I think all the attorneys that practice in this area that have ever had any kind of cases with me will tell you that. So mine is very detailed. I feel like my job is to make sure that I make this the best journey that I can make for my clients. And so we address all kinds of topics so that we can try to avoid any surprises or things that weren’t communicated about. So the really the big things, the big kind of ticket items that we put in there is we have to provide for what the financial compensation may look like.

So Texas did not pass any kind of laws regarding payments to a gestational carrier. We’ve seen several other states that have passed laws that are very similar to what we see in adoption. And they set out that you can pay for living expenses and things like that. We don’t have that here. And so we do term it as pre birth child support. So a big component of the agreement is what does that look like? What expenses are you covering? What if she been compensated for carrying the child as the pre birth support amount. The agreements include, and the understandings regarding when somebody would want an abortion or selective reduction to occur. With the new abortion laws that’s kind of limited those discussions where we used to have more options and people had stronger feelings.

The new abortion laws have really limited any circumstances, you could do that in any way. We also include things about who can be present at the time of the delivery. So if we have limitations on if, for example, in a C section, only one person can be in the room. Would that be the intended parent? Or would the gestational carrier have the right to pick a support person of her choice? We include things about whether or not you’d be supplying breast milk, what future contact may look like. We include dispute resolution procedures. We include whether or not we’re funding an escrow account, or where the funds will be coming from.

So there’s a lot that goes into it, we also have to have an open exchange of relevant health information.

So everybody’s agreeing that they’re going to release the relevant information. We have lifestyle prohibitions. So all the things that they agree that they will avoid. Then when COVID happened, we now include a section about vaccinations. So that’s been kind of a hot topic in surrogacy, is included in the agreements, what the expectation would be. Whether or not the carrier is going to get vaccinated, or if she already is vaccinated. We have travel restrictions. So back when Zika virus was popular, we had different restrictions about that. We still include a small provision about that. But now we’ve kind of evolved more into making sure we’re following CDC guidelines if you’re traveling and things of that nature.

Holly: So it’s interesting how the recent abortion legislation changed what you can do or what you have to do in these types of agreements. Do you in any way account for the fact that somebody might leave the state and seek an abortion elsewhere?

Lauren: We do. And so it has been a really tough discussion to have with with the clients because there’s a lot of people that are very hesitant about entering into a surrogacy arrangement in Texas now because of that. And the reading really, of the new law was an incentive for people to turn people in. So we do include in our agreement that the intended parents understand that if they did make a request of the gestational carrier to travel elsewhere, but if they got turned in, they could be found to have aided and abetted in circumventing the Texas law, and they potentially could be held liable. We also include a provision about confidentiality. So in the event that there is going to be a termination, that they agree that those that situation and the details surrounding that will remain completely confidential, and only the people that are necessary to know the information will have access to it.

Holly: Interesting. Can either sign terminate a surrogate agreement?

Lauren: They can. And I think that’s one of the great things about the law in Texas. Some other states don’t have any kind of provisions that provide for that. But Texas does allow anybody to back out at any point in time, as long as the gestational carrier is not pregnant, and there cannot be a financial consequence outside of if she had breached the agreement. So typically, our agreements will say that they are valid for up to three transfers or one year. Sometimes we’ll have a little less or a little more depending on on the parties. But typically, that’s what we see. But it does allow anybody to decide even before the first transfer that they don’t want to move forward, and they can back out.

Holly: So I don’t know at what point in time the surrogate typically gets paid, or if they get paid along the way. But if the surrogate terminates, and has already received money, is there any recourse for the intended parents?

Lauren: There is not outside of a breach of the agreement. So typically, we will do it in installments. It’s either eight or nine installments, and it’s usually not until we’ve had a confirmation of pregnancy. But the intended parents have paid expenses. Prior to that point. Obviously, they’ve paid for screenings and testing, they’ve paid for legal fees for both parties to be represented by counsel. They may have paid travel expenses, if they’ve asked their carer to travel to a physician elsewhere. So those expenses are at risk in the event that she decides not to move forward.

Holly: Interesting. So what are the requirements under Texas law for a gestational agreement?

Lauren: So there’s basically a laundry list, which is what we do include in all of our contracts. And so kind of the big things that we have to have is we have to have an open exchange of relevant health information. The carrier has to agree, and if she is married, her spouse has to agree that they relinquishing any rights that they are going to have to the child. We have to have a 14 day waiting period that passes before we have any transfer. So from the date the last person signs the gestational agreement, there cannot be a transfer until that 15th day.

So basically, it gives anybody an opportunity to back out before we have achieved a pregnancy. We also have to include that there’s been a discussion with the physician that’s performing the transfer, about the cost, the rate of successful consumptions for that facility, as well as the medical and the mental health risks. Which early on was interesting, because most of the physicians had no idea that that was even in the family code. It wasn’t communicated to them. So they were utilizing third parties to have those discussions. But the code is very clear that that information must come from the person who’s performing the transfer.

It also has to include both spouses. If we have two intended parents, they must be married, and they both have to be a party to the agreement. The law is a little bit unclear whether or not our statute does apply to single intended parents. I think most attorneys that practice in this area have inferred that it does. But if we’re trying to have two intended parents, they must be a married couple in order to have the protection of the statute. It also has to provide that we have covered how all of the medical expenses would be addressed even in the event that the agreement has been terminated.

Holly: So under Texas law and unmarried couple, where one of the parties or it goes into an agreement for surrogacy or other types of assisted reproduction, the partner who is not married can have no parental rights to that child absent an adoption. Is that right?

Lauren: Yeah. Yeah, the statutes very, very clear that the intended parents must be married.

Holly: So is a gestational agreement and a surrogacy agreement one in the same or are there different pieces to that?

Lauren: So typically, we will call a surrogacy agreement. That’s what we’re using in a traditional surrogacy. The gestational agreement is what we will use in a gestational surrogacy arrangement where the carrier has no genetic link.

Holly: Okay, is there any type of order that you get signed, or that goes into effect before the child is born, to make sure that everything goes forward with the intended parents and everything goes smoothly the hospital and all of that?

Lauren: There is and so people are always shocked that Texas does have such great laws. So we are able to get what we call a pre birth order. And it’s also sometimes called the order validating the gestational agreement because it really does both. So before the birth does occur, we do file a joint petition with the court that is coming from both the carrier and if she’s married, her spouse and the intended parents. We attach a copy of the gestational agreement to that petition. And we ask the court to find that we have complied with the law, and that the intended parent are intended parents will both be the legal parents. And so then if they do approve, which I’ve never had them say no, they sign the order. And it does state that once the child is born, that the intended parents names go on the birth certificate, and then the carrier and herself, they have no legal rights, and their names are not reflected on any records.

Holly: So can that be done without the order with just the gestational agreement? Will the hospital honor that? Or do you have to go in and get it order?

Lauren: You have to typically have the court order. But we’ve had some hospitals where we’ve done traditional surrogacy that have treated it similar to an adoption where they’ve allowed at least the intended parents to name the child. Depending too there is a way where one of the intended parents could end up on the birth certificate without us getting that order. So if they have a genetic link, and we sometimes can do it through just the DNA testing part, or in our cases where we have a traditional surrogacy, if they do an acknowledgement of paternity at the time of the birth, then at least the intended father is able to get on the birth certificate.

Holly: What are the unique aspects of enforcing a surrogacy agreement?

Lauren: So our code is really very clear. And it does state that the agreement is not enforceable until we have gotten that pre birth order, or the validation order. And so for my clients, we always let them know at the outset, and when they do hire me, they get an election about whether or not they want to get that pre birth order that validation order, before there’s a confirmation of pregnancy or after. Obviously, there’s a financial risk that if the carrier never gets pregnant, they’ve paid me for legal fees for an order that they can’t use. But we also explained that there’s a legal risk, because until the court says that this is an enforceable order. It’s not. So we basically just have a contract. But typically, most people do select to do it once they have a confirmation of pregnancy. And once we have that court order, we know it is an enforceable order.

Holly: So you can’t enforce that agreement without an order.

Lauren: Correct.

Holly: Interesting. So one of the other issues that you deal with a lot in assisted reproduction would relate to egg or sperm donations. Tell us a little bit about that process.

Lauren: So in sperm donation and egg donation, contracts are also very important, especially when we have a known sperm donor. So there’s been lots of cases that have come up with famous people, even locally, where people did not understand what was really required. And so they didn’t understand the key component to being found to be a donor is you must provide your genetic material to an actual licensed physician. If you do not and you are a sperm donor, then you are considered to be a parent. And so there has been people that did not understand that concept, they thought they were being a sperm donor, and then they’ve been sued for child support.

So we do stress to people in known arrangements that you do have to have a physician involved and you should have a contract involved. That sets up your intention was to never be a parent, and sets out what any expectations would be regarding future communication. The egg donor arrangements are a little bit different, because a lot of them are anonymous. And so we do have contracts always. And we do sign those with codes most of the time when we have our anonymous arrangements, but we have some known arrangements as well. And so in all three of those that again, the key element is we have to have a physician and you’re definitely recommended to have a contract.

Holly: So if a donor is anonymous, how do you enforce any type of contract? Is there a third party to whom they’re not anonymous that’s involved?

Lauren: Yeah, so typically, there will be an agency, or some of the clinics will do matching. And so we do have somebody else that does have that identifying information. And we do always include dispute resolution procedures in there. So we do set out that, you know, if we have any kind of dispute, we would try to have some level of communication through the third party. And if that’s not successful, then we do agree to go to mediation. And I think with the advances we had after COVID with Zoom, it’s been much easier to keep the identity is confidential. And then if that’s not successful, we typically do agree to an arbitration.

Holly: What kind of disputes usually occur in this realm?

Lauren: So we have been lucky that we have not been called with very many. We’ve seen actually more this year than we’ve ever had. And so in the past, we would see things more about communication. So expectations about how frequent people wanted contact. So we would have people that you know, they wanted to text 10 times a day and maybe the donor or the surrogate, they only want to text once a week with an update. And so they had very different expectations of what that would look like. Recently, we have had some issues with payments. And so I’d say the probably the biggest thing is the financial dispute.

So we’ve had cases where there’s a premature delivery. And then there’s an argument about whether or not the next compensation payment was due. We had a case where somebody was supposed to have purchased and loss of organ insurance policy for their carrier, and she ended up having a hysterectomy, but they never purchased the policy. And so then I did not do their contract, but the way it was written did not include a provision that said if that policy was not purchased, that the intended parents had to pay for that out of pocket. And so then there was a dispute about whether or not they actually owed that money.

Holly: So what’s the type of contracts that are involved here? Is that usually something that donors or recipients would sign with the facility? Or do they need to have separate legal counsel and contracts done separately with attorneys?

Lauren: So I think that they everybody should have separate agreement. So typically, the clinics they have their own set of documents that they do have you sign. And so in any of the family law cases where family law attorneys have maybe embryos or or eggs that are being stored, if they call me for advice, I always say the first thing is ask for what’s in the doctors, the doctors file about what the expectations were. But then you really have to have a direct agreement with your donor. We early on saw some agencies that were trying to save cost for their clients.

And so they wouldn’t do a direct agreement, they would just have the agreement between the donor and the agency and the intended parents and the agency. Well, what if the donor breaches their agreement, or does something that would have been a violation then the intended parents have no way to enforce that, because they had no contractual relationship. So now you’re turning to the agency and asking them to go enforce something. And typically, they’re not going to go do that, or they really are in a position that they can’t. So they can’t go ask for your money back, because then they didn’t have any damages. You had damages, but you didn’t have a contractual relationship.

Holly: So you mentioned embryos in and how they come up in family law divorce cases, usually. What advice do you give an attorney who sees that issue come up in their case?

Lauren: Number one, is find out what the clinic has. Because almost every good clinic and I know the big ones in the Dallas Fort Worth area, definitely have them make an election, about what would happen in the event of their death, or in the event of divorce.

Holly: And what types of options are people given when they’re choosing that election?

Lauren: So typically, in the divorce case situation, they’re given the option to destroying the embryos that may exist. They have the option to give them to one of the parties and allow them to use them. Or I’ve seen cases where they had the option that it would go to one of the other parties, but then they had to still get the consent of the spouse. And so it varies. And I think the interesting part about it is that some of the embryos, we have one of the one of the divorcing couples that is genetically related, and maybe the other one, they had a donor sperm donor or egg donor. So they don’t have that genetic link. We have cases where the embryos, neither one of them is genetically related to the embryo. So or we have a case where they both are. And so I think that also plays into some of the situation and the choices that may be available. Texas historically has upheld whatever is in the record of the physician and found it to be a contract.

Holly: Interesting. So if somebody at the time they entered into this contract through the assisted reproduction facility, they’re having embryos created, they say, oh, yeah, you know say husband signs off saying, wife can have the embryos in the event of divorce because at that time, of course, divorce is nowhere on the radar and nobody’s ever getting divorced. So if the husband says, nevermind, I don’t want her to have them anymore, it sounds like the court still going to give them to the wife based on that agreement. Is the husband going to be responsible for supporting that child? Is the husband, so gonna be the father?

Lauren: So that has been a huge debate. And so it’s been the argument that you’re forcing someone to be a parent, that does not want to be a parent anymore. And so we have seen that come up quite a bit. And every state has really varied. You know, in Texas, again, they have upheld that whole perspective of, she would still have the right to use them, but then he doesn’t necessarily always have, it doesn’t have to be the parent. So if you’re utilizing them post divorce, then it can be that that’s not considered to be the parent. But again, you go back to, even if that is the outcome, then you know, you have a genetic child out there that you have no relationship with. And now you’re being forced to know that there’s a child that exists that you were not wanting to have and is genetically yours. So it’s a really fine balance. And I think that’s why the courts have really kind of struggled with it. Most people don’t pick that, but you are right, that we’re asking people to make these choices when they’re happy. And they never think they’re going to be faced with that decision.

Holly: So when the husband in that hypothetical checks the box that okay, the wife can have the embryos, does it also have a box for him to check, are you still going to be the dad if you check this box?

Lauren: Typically no. So I have not seen that on most of the consent forms. It’s just whether or not one of the parties will be able to utilize them in event of divorce.

Holly: So one other thing I know that you do a lot of is mediating cases that involve assisted reproduction. Do you see a lot of disputes in this area?

Lauren: We don’t see a lot. I think the problems that we are seeing is that we have attorneys that think that they can do this. And so they have a 15, 20 page agreement that comes out that just doesn’t adequately address things or provide for, you know, backup plans. So like, for example, I had a case, the one that involved the insurance policy that wasn’t purchased. And the attorney who drafted it, the even the dispute resolution provisions were so broad, that it just basically said they had to agree on a mediator. Well, they could not agree on a mediator. So for six months, they argued about who was going to mediate this case, where in my agreements, we have a backup plan.

So it’s, they’re going to attempt to agree on the mediator, if they haven’t done so within a certain number of days, then we agree it’s going to be whoever I include two different people in case one has the conflict. And so we it’s very detailed. So I think the the devils in the details, and unfortunately, these are very emotional relationships that we are asking people to enter into. And so it’s the failure to include those really important things. Most of the time, the relationships are very good, especially when we have an agency that’s been involved to help kind of mediate disputes as well. So we don’t see a ton of arguments. Mainly, it’s about financial stuff, if there is one.

Holly: Well, we’re just about out of time. But one of the things I like to ask everyone who comes on the podcast is if you could give one piece of advice to young family lawyers, what would it be?

Lauren: I would say that you should really make sure that you are aware that this area of law does exist. It’s such a happy part of my practice, and you get to help people create their family. And they come to you in times of stress, because they’ve typically been through a lot at this point. And they’re looking, you know, to have a family and we get all these wonderful pictures of their children. And I have people that come back to me for their sibling journeys. And so family law doesn’t always just have to be the hard stuff like our divorce and custody and support cases where people can’t get along. It can also include a really happy area where we’re helping people become parents.

Holly: Yes, kind of similar to adoptions. And I know most family lawyers, love doing adoptions. And then you’ve never even think about this other area of practice that it’s kind of kind of similar in the feelgood realm I’m sure.

Lauren: Yes.

Holly: So where can our listeners go if they want to learn more about you?

Lauren: So I just recently joined the Sisemore firm and we are updating our website so you can go to lawyerDFW.com, and you can contact me by phone and my information will be on there, or my prior website was gaydosduffer.com. And so all my information is there, and the phone number’s transferred over here and I still have access to my old email as well.

Holly: All right, well, thank you so much for joining us today. For our listeners, if you enjoyed this podcast take a second leave us a review and subscribe so you can enjoy future episodes.

Voiceover: The Texas Family Law Insiders podcast is sponsored by the Draper Law Firm. We help people navigate divorce and child custody cases and handle family law appellate matters. For more information, visit our website at www.draperfirm.com.