Marla Neufeld (Melanie Bell)
When Miami Beach attorney Elizabeth Schwartz was asked to handle a surrogate birth case 16 years ago by long-time gay clients, her initial answer was no.
“I said, ‘No, I can’t do that.’ If something is wrong with your kidneys, you are not going to see a cardiologist,” Schwartz recalls. “I feel you should be an expert, especially where kids are involved.”
But Schwartz was unable to find an expert in that area of law—particularly with gay men hiring a surrogate mother—so she agreed to handle the case. The couple now has teenage twins.
Since then, assisted reproductive technology issues—including surrogacies, egg and sperm donor agreements, and pre- and post-birth orders, among both straight and gay couples as well as single people—have become commonplace, and Schwartz has handled hundreds of cases. A crop of lawyers around the country has developed practice areas in this field.
The American Bar Association launched an assisted reproductive technology, or ART, practice section about 15 years. There are now 200 to 300 members and a popular online service where members share stories and advice.
Richard Vaughn, a California lawyer who specializes in this burgeoning area of law, chairs the ABA committee. He got into the specialty the same way many other lawyers do—after hiring his own surrogate to bear twins for him and his husband in 2006.
“I don’t know if the area of law is exploding, but it’s definitely growing every year,” said Vaughn, who heads the International Fertility Law Group in Los Angeles.
Vaughn cites multiple reasons for the uptick of surrogate births in this country: people waiting longer to have children and dealing with infertility issues, adoption is losing popularity because of the risk it can be rescinded by the birth parents, bans in some countries on adoptions by single people and bans on surrogacy in 90 percent of countries.
New Practice Area
Vaughn, like other attorneys practicing ART law, calls the work satisfying.
“I couldn’t speak more highly of how fulfilled I am,” he said. “It’s definitely a labor of love, but I think one of the things that could be prohibitive to those getting in the business is you have to work with the surrogacy agencies, and most of them already have relationships with lawyers set up. It’s not about marketing yourself and pounding the pavement.”
That could explain why large law firms have not launched ART practices. ART is largely practiced by solos and small firms.
The 134-lawyer Greenspoon Marder firm is an exception. The Fort Lauderdale-based firm started an ART practice in February, focusing on such issues as gestational surrogacy; egg, sperm and embryo donation agreements; same-sex couples and surrogacy; and pre- and post-birth orders to change the parental rights after surrogate births.
The practice was the brainchild of Marla Neufeld, a 33-year-old Greenspoon associate. She and her husband, Jason Neufeld, a personal injury attorney who is president of the North Dade Bar Association, became the parents of twins born by a surrogate mother two weeks ago. Neufeld paid a lawyer $6,000 to handle all the necessary paperwork.
“Going through that whole process, I became familiar with all the laws, and it was a natural area of law I fell in love with,” Marla Neufeld said. “I hired an attorney and was reading through the contract, and I felt this was something I could do and do better. I was always active in helping women with infertility issues, so it seemed a natural progression.”
Neufeld, who had been specializing in land use and real estate, approached the firm’s family law chair, Mark Rabinowitz, about adding the practice area, came up with a business plan and sold the firm on the idea.
Neufeld is the practice group’s sole attorney but said she’s received calls from other attorneys at the firm wanting to network and lunch with her. She hopes to add an associate soon.
Through word of mouth, a website and blog she created (thereproductivelawyer.com), Neufeld has attracted a handful of clients, including a woman who had breast cancer and was advised by her doctors not to bear children. Her sister-in-law offered to be her surrogate.
In each situation, the surrogate mother and the potential parents have separate lawyers.
Neufeld needed to become familiar with state law on surrogacy and learn about the laws in other states and countries where her clients may be returning. While Florida has a surrogacy law, other states such as Georgia do not.
“It gets really complicated when the couple is not legally married,” she said. “The gestation surrogacy statute in Florida only covers married couples. If you’re a same-sex couple, you have to use the adoption statute.”
Schwartz, who is gay and specializes in assisting the lesbian, gay, bisexual and transgender community, has made ART for same-sex couples a subspecialty of sorts.
Due to the complexities in international law as well as insurance coverage changes under the Affordable Care Act, Schwartz said it’s important for clients to hire lawyers who specialize in ART. She attends an annual conference with attorneys specializing in ART, called the American Academy of Assisted Reproductive Technology Attorneys to stay current.
“There are very few of us who do this and do it well,” she said. “It’s important to stay abreast of the issues and give people the best advice. This is really the Wild, Wild West. It’s unregulated, so we have to regulate it.”
Schwartz has handled surrogates from Israel, England, France, Germany and the Netherlands. She always lines up a lawyer from the country of origin to make sure the person will not face problems at home.
Still, she has had issues with babies born in Guatemala and Mexico having trouble being admitted into the United States. Schwartz is planning a fact-finding trip to Israel next year to explore surrogacy issues.
Michelle Hausmann of Hausmann & Hickman in Boynton Beach has been handling surrogacy cases for 16 years. She believes surrogacies could explode now that ACA will provide some coverage, which could mean more law firms jumping into the specialty. “I hope not,” she added with a laugh.
Schwartz, however, welcomes larger firms like Greenspoon Marder jumping into the niche, saying: “There needs to more focus on competent attorneys in this. This is really complicated stuff, and you don’t want to dabble in it. But it’s not terribly lucrative work. You don’t do it for the money.”