Deborah Howell (Host): There are so many options for couples who want to start a family these days and so many questions around reproductive law. I'm Deborah Howell and today we'll offer a reproductive law Q& A with Amanda Sapp, a solo practitioner and owner of Sapp Law Office. She's also the owner of the Stork's Nest Surrogacy Agency in Indiana.

This podcast is not related to Boston IVF at the Women's Hospital. This podcast is for informational purposes only and should not be considered legal advice, nor is it intended to replace any professional medical advice.

Hello, Amanda, and welcome.

Amanda Sapp, RN, MSN, ESQ: Thank you so much for having me. I'm excited to be here today.

Host: We're excited to have you. Can you tell us a little bit about your job and how you decided to go into reproductive law?

Amanda Sapp, RN, MSN, ESQ: Yes, so, obviously I have two different jobs. I have the Stork's Nest, which helps couples and surrogates through the process of a surrogacy arrangement. And then I have Sapp Law Office, which just handles the legal aspects of a surrogacy journey, or an egg donor contract, or sperm donor contract, embryo donation, and some adoption work as well.

So that's a little bit about the jobs. As far as how I got into this field, it's kind of a long winding road. I started out as a pediatric nurse and went on to get my nursing masters and the first class I had was a policy and politics class that talked about the law and medicine, and I kind of fell in love with that idea and decided I was going to go to law school.

So, fell into an internship doing reproductive law and loved it. It was the perfect blend of law and medicine. So here I am!

Host: A great fit, and you're doing a great service for families everywhere. I'd like to do things a little differently today.

Let's do a Q& A with some questions that patients wanted to ask regarding reproductive law. And here is my first question to you. Once my partner and I create embryos, do we need to have a will?

Amanda Sapp, RN, MSN, ESQ: Yes, it is always a smart idea to get a will that discusses what will happen to genetic material after you die. It's not a legal requirement or anything like that, it's just really, really prudent and smart to do that. Posthumous reproduction, as we call it, which is reproduction after death, is really up and coming. And so if you have even if it's not embryos, if it's frozen eggs or frozen sperm and embryos, the will allows loved ones to know what your wishes were for that genetic material after you die.

Host: Okay, great. And number two, another question from a patient is, who gets the embryos if we get divorced?

Amanda Sapp, RN, MSN, ESQ: So, a very lawyer cliche answer is, it depends. The courts are divided on this. Most courts will rule in favor of the party that's not wanting the other party to use the material, so that it's not forcing someone to reproduce against their wishes. But in some situations, like if a woman has cancer and she had to have a total hysterectomy and she's not able to have a genetic child any other way, courts may heavily weigh on that and may award her the use of the embryos without the genetic partner or the other genetic person being a, quote unquote parent, for custody and things like that, support.

Deborah Howell (Host): Okay, can I use my embryos if my partner passes away?

Amanda Sapp, RN, MSN, ESQ: Again, this one will go back to that whole Last Will and Testament question that we talked about. They're more apt to rule in favor of use if it was explicitly stated by the person who died, that they wanted it used after they should pass away. So again, it's one of those where you really need to have something in writing.

The courts are not likely to rule that it can be used if the decedent or the person who died did not explicitly state it somewhere, whether it be in the will or the disposition agreement with any fertility clinics.

Host: Boy, you know your stuff. Okay. this is a biggie. How do I prevent a legal battle in the event of a divorce?

Amanda Sapp, RN, MSN, ESQ: You really can't. I know that's not the answer people are wanting to hear, but there's really not much that you can do here, because people change their minds about reproducing all the time. When you go into a marriage and you have dreams of having a family with someone, those can change when you start growing apart, and so a court doesn't typically force parties to have again, children against their wishes.

Again, it depends on, if the woman can procreate without the husband, it's multi factor.

Host: Alright, these are patient questions just to regroup. If my partner and I are in a relationship but not married, do we need to put into place a legal document outlining what happens with the embryos if our relationship is terminated?

Amanda Sapp, RN, MSN, ESQ: Not necessarily because if they're created jointly, and both partners are genetically related to the embryos, they're going to have equal rights to those embryos. And so they're going to handle it the same way they would with a married couple that has genetic material.

Host: And what happens to the embryos if both of us pass away?

Amanda Sapp, RN, MSN, ESQ: Again, it goes back to disposition forms and Last Will and Testament, and if you had something in writing. There was a crazy case in Texas where two married people had embryos that were at a fertility clinic and they both passed away in a car accident. And they actually had nothing in writing at the fertility clinic or in a Last Will and Testament and so the court went ahead and awarded those embryos to their two year old child to determine the disposition once the child turned 18.

Host: Okay, so this is why it's so important to get things in writing. Now, if a male patient signs over rights of the embryos and the female does a transfer and gets pregnant, can she ask for child support once the child is born?

Amanda Sapp, RN, MSN, ESQ: If the male patient has become a quote unquote donor and has donated through contractual obligations, then it would not be likely that a court would award child support.

Host: That's pretty straightforward. Regarding donor sperm and egg, if the tissue is donated, does that change things in terms of custody of the created embryo? Like, for example, if a female same sex couple creates embryos using donor sperm, does the non egg donor have any custodial rights over the created embryos?

Amanda Sapp, RN, MSN, ESQ: If they're married, then likely yes. If they divorce or separate,

then

it depends. Can the non egg donor create new embryos using her own eggs? Did they have a donor agreement with the sperm donor as to the disposition in the event of divorce or separation? Sometimes it's the non egg donor's brother or family member that donates sperm and will oftentimes put parameters around what will happen to the material in the situation.

You know, all of these questions are typically taken into consideration by the courts.

Host: Okay, then I have a follow up for you. Once the child is born and if the egg donor passes away or is divorced, what happens to the non egg donor regarding custody? And what can be done to ensure the partner has custodial rights to that child?

Amanda Sapp, RN, MSN, ESQ: If the donor dies and they're married, then they would likely be treated as equal parents if they were created together with the intent to parent together.

And it's important to have everything in writing, such as the Last Will and Testament, which, again, the courts have upheld for years.

If they divorce, then the court would likely treat it the same as a heterosexual couple with that divorces. If they created the embryos together, were married, and the non egg donor has held the child out as their own, then they would likely get custody or visitation, as in any other heterosexual married couple's divorce.

Host: Yes, Okay, do I need to have a contract if I'm using a sperm / egg / embryo donor or surrogate?

Amanda Sapp, RN, MSN, ESQ: Yes, yes. Yes, for all the reasons I've already stated, contracts obviously show intent, which the courts rely heavily upon. They also discuss a lot of things that the parties may not think of. And a good reproductive law attorney will know what should be included in all of those agreements.

Host: Okay. Fair enough. Need to have somebody on speed dial for these things.

Amanda Sapp, RN, MSN, ESQ: Exactly. And not like a business law friend. It needs to be someone who does this.

Host: Someone legit. Okay. Do I need to go to mental health counseling if I'm using a sperm, egg, or embryo donor or gestational surrogate?

Amanda Sapp, RN, MSN, ESQ: Yes, obviously it's always recommended and it's a recommendation of ASRM, which is the American Society of Reproductive Medicine for all reproductive endocrinologists. So, most of them follow that and advise that the party should go to counseling. Obviously, there are a lot of feelings that people experience around donation and surrogacy, like how the donor is going to feel about the donation and, what if it's a friend or a family member and they have a hard time seeing the child down the road?

 If it's an anonymous donation, or we call those a non identified donation; will they always wonder about the potential child out in the world and have a hard time not knowing about that? The same for recipients. The recipients of the donated material sometimes have concerns about whether they're going to bond with this child as if it were their own genetic child and, so there's a lot of it around donation. And then with surrogacy, it's an avenue that make sure that the parties align on how their journey will go and understanding feelings on both sides. How many embryos are they going to transfer? And what about termination and reduction of pregnancies, and are they aligned on those things?

Because these are really important topics. A big one now is vaccinations. Are they wanting her to get a COVID vaccine, and how they feel about the flu vaccine? And, travel restrictions, diet restrictions, social media restrictions, labor and delivery preferences, and involvement after the delivery, life support if the surrogate gets in a car accident. So many things, obviously, that can come up that they can talk about.

Host: Amanda, do I need to have separate legal counsel for my donor or surrogate?

Amanda Sapp, RN, MSN, ESQ: Not a legal requirement here in Indiana. However, most states do require it. And the ASRM, which is, again, the American Society of Reproductive Medicine, it's one of their recommendations, for the guidelines for using donor and gestational surrogates. So, yes, always a recommendation, so that the donor or surrogate cannot come back later or the parents and recipients, neither party can come back later and say they didn't understand what they were signing or that they signed under what we call duress, meaning like pressure, they felt pressured to sign that contract. And obviously one attorney cannot represent both sides.

So one attorney for the parents and one attorney for the donor or surrogate, because we can't represent both.

Host: Okay, now a question on behalf of the surrogate, can my surrogate use her insurance at the fertility clinic for treatment?

Amanda Sapp, RN, MSN, ESQ: No, so she should not be using her insurance on fertility treatments unless her insurance specifically states that she can use it for fertility treatments at the clinic when acting as a surrogate, which is not likely. Surrogates insurance usually will not pick up the bill until she's pregnant and released to her OB office as if she had gotten pregnant on her own.

If she tries to use it at the fertility clinic, that might be considered insurance fraud since she wouldn't otherwise be using that insurance for fertility treatment since she's not the infertile person.

Host: Okay, that makes perfect sense. Now, how do I know if my gestational surrogate's insurance will cover the surrogacy pregnancy and what do I do if it doesn't?

Amanda Sapp, RN, MSN, ESQ: Yeah, so there are a couple of companies that actually specialize in reviewing insurance. ArtRisk is one of them, A R T Risk, and they're out in California. And then I F I Insurance, International Fertility Insurance, they both do policy validations, where they call the insurance, make sure that the CPT codes and everything are covered under the surrogate's policy.

If not, then they also offer the service where they can help place her in a policy that would be surrogacy friendly, as we call it, and that would cover the pregnancy so that the parents aren't paying out of pocket.

Host: Final question for you. Can I re donate donated material to another individual or couple if I've completed my family and no longer have a use for the genetic material?

Amanda Sapp, RN, MSN, ESQ: Yeah, it really depends on what the original donor contract says. So if the initial donor says that it can be re donated to another family without their involvement, then yes. Sometimes, donors want to know who's getting their material and prefer not to have it re donated to anyone, or they may want to be a part of that.

Like if their original donor family that received their donated material, if they had an agreement where their children would meet or they'd update each other every year, and then they re-donate their material to somebody else. They may want that same type of contact with the new family as well. So it really honestly depends on that initial contract that they do with each other, which is again, why it's really important that they have something in writing.

Host: Absolutely, wow, just a wealth of information you've given us today. Is there anything else you'd like to add to our conversation?

Amanda Sapp, RN, MSN, ESQ: Well, we did cover quite a bit obviously just a few points to drive home. Anytime you have any genetic material that's cryopreserved, whether it's eggs, sperm, or embryos, make sure you have it in a Last Will and Testament that discusses what would happen if you die. Obviously have that hard conversation with your partner.

Make sure it's in writing how each of you feel about the disposition after death. And then make sure that your Last Will and Testament and any disposition forms at the fertility clinic are mirroring each other. Sometimes you'll have a Last Will and Testament that says something different then disposition form.

Host: Such excellent information. Thank you so much for being with us today, Amanda Sapp. We really appreciate it.

Amanda Sapp, RN, MSN, ESQ: Yeah. Thank you so much for having me. It's been a pleasure.

Host: And that wraps up this episode of the podcast series from Deaconess, the Women's Hospital, a place for all your life. For more information about Boston IVF at the Women's Hospital, visit deaconess.com/thewomen'shospital/services/fertilitycare. Please remember to subscribe, rate, and review this podcast and all the other Deaconess Women Hospital podcasts.

For more health tips and updates, follow us on your social channels. This is the Women's Hospital, a place for all your life. I'm Deborah Howell. Thanks for listening and have yourself a great day.