In this episode, host Griffin Jones speaks to Melissa Brissman, an experienced attorney specializing in reproductive law. In addition to practicing law with a focus on reproduction for the last 21 years, Brissman also acted as her own attorney as she had twin sons and a daughter via gestational carrier. An advisor to a variety of organizations and an experienced keynote speaker, Brissman was the 2017 Advocacy Award recipient from Path to Parenthood. Today, Jones and Brissman discuss the differences between a contract and consent, the changes coming to fruition thanks to recent laws, and more.
Griffin Jones: Today on the show, I’m joined by attorney Melissa Brissman. Ms. Brissman graduated valedictorian from the Wharton School of Business at UPenn, she started helping couples in the field of ART in 1996, and she has been her own client. She’s had twin boys through a gestational carrier, and a daughter through a gestational carrier. She’s advised governments such as Taiwan in drafting surrogacy legislation. She’s been a keynote speaker at a number of different institutions such as ASRM. She has sat on the board of a number of organizations, including the American Fertility Association, Path to Parenthood, Fertile Dreams, Conceive Magazine, and others. In 2017, she was the Advocacy Award recipient from Path to Parenthood, and she is the sole owner of her law firm, Melissa B. Brissman, Esquire, that handles reproductive law and surrogate fund management, a company that manages escrow in connection with reproductive arrangements. Melissa Brissman, welcome to Inside Reproductive Health.
Melissa Brissman: Thank you very much! A pleasure to be here.
Jones: There’s a whole bunch of things we can talk about, including what’s happened in New York recently, I guess I wanted to start… part of the reason why I wanted to have you on is because I remember my first ASRM, which was probably four years ago, one of the attorneys was speaking and you could just look around and see every doctor and practice owner in the audience was just petrified with fear of all of the things that can go wrong with third-party law. It’s just… I think a really scary space for a lot of people. Maybe we could start broad and you could explain just some of what third-party law involves and what you very often find that you’re educating providers on?
Brissman: Sure! Absolutely. Well, the biggest problem for doctors is that the law hasn’t really caught up with technology, so…. For instance, 20-30 years ago, you couldn’t take an egg out of one person, fertilize it with sperm, and put it into another person, so that people were carrying DNA of an egg of somebody that was not their own. So all of these things evolve very quickly. We’ve been doing it in animals for a long time, but not humans. And the laws in many of the states did not keep up. And because you’re creating human life, potential for embryo mixups, psychological issues, all of those things have not really caught up with the law. And Doctors are not very good about two things: number one, in general, they hate lawyers.
Jones: Even more than they hate marketers?
Brissman: Well, probably equal. (laughs) But they really hate lawyers, because lawyers have a reputation of being ambulance chasers in the medical field and suing them for malpractice. So they don’t really realize that is also a side of lawyers that is very helpful to them, that prevent misunderstandings and keep them out of the equation, so they’re hesitant to look to lawyers. And the other thing is that doctors want to help. So when a patient comes to them, they want to do what the patient wants, even if that might not be in the patient’s best interest over the long haul. They’re really bad at saying no. So that’s a problem, also. So what does that mean? For instance, in third-party reproductive practice, doctors have what’s called informed consent. Let’s just start with egg donation. You have somebody who needs an egg, and they have them sign informed consent, and they decide that they’re going to use their younger sister to be their egg donor, because their younger sister looks like them, she wants to help… they have been to ASRM, and they say, You need a contract. We need a contract to get rid of the legal rights of the person who’s donating the egg. Then the two sisters come in and say, We love each other, we don’t need a contract, your consents are enough, and doctors are like, okay, that’s fine. You don’t want a contract, you don’t have to have a contract. And that’s a bad idea.
Jones: How often does that happen?
Brissman: That happens a LOT. A lot more than you would realize, because what will happen is… this client or patient has been a patient of the practice for ten years, let’s say. She came in when she was 26, they started with artificial insemination, she didn’t get pregnant. And they maybe gave her some Clomid, they maybe gave her some shots, and then maybe they gave her some IVF, and maybe she lost a couple of babies, and then we finally realize, ok, we should switch to egg donation, and we’re ten years out— she’s 36 years old. So this patient has spent $100,000, $200,000 on treatments, and now the doctor’s telling her she needs to spend $1,000 on legal. And she doesn’t want to. “I’ve spent $200,000, this is a waste of money, I love my sister.” So the doctor feels bad, right? So the doctor says, fine, you don’t need a contract, you don’t need a psych exam on your sister. What happens when the sister donates the eggs and she feels like those are her babies? Maybe there’s not a lawsuit, but she comes back to the doctor and says, I really wish you had given me that psychological exam, because I don’t feel like I should have done this. I feel like those are my babies, and I was coerced by my family to do this. And then there’s no psych, and no contract, and just a consent, and who’s going to be liable for that? The doctor. Right? And what if there’s a litigation regarding parental rights to the child because there’s no law in, say, Nebraska, on who’s the mother when someone else carries your egg. Now, most of these things don’t go to trial, so a lot of them are settled out of court so we don’t know, but the big problem is a doctor didn’t have a contract so there’s no legal rights between the sister and the eggs, and then the psychological wasn’t there, so there was no ability to see if she was prepared for the fact that she might feel like these were her kids. So you really want to make sure that you have the best legal advice, and honestly, when you’re talking that an egg cycle averages $20-30,000, or if you’re not paying the donor, maybe $15,000, and you’re talking about $1000 of legal services, is it really worth the risk? Or $500 of psych services, so… lawyers are good at also doing things that doctors don’t like, which is breaking up deals that shouldn’t be happening, right? If I’m doing a contract and I’m representing the sister, and the sister comes to me and says, My mom told me that I have to donate eggs to my sister, that this is family and we do everything for family, but, y’know, my husband doesn’t want me to. He feels like our kids will be confused if there are half-genetic siblings out there, and I love my husband and I don’t know what to do, because I don’t want to risk my marriage, but this is my mother. And I will tell the psych person, She’s not qualified to be an egg donor, right? Because this is not a good situation, so I will be breaking up the deal. I will be the bad guy. And then lawyers will think, Oh, Melissa Brissman’s a bad attorney because she’s breaking up my deals.
Jones: The DOCTORS will think that, you’re saying.
Brissman: Yeah. And the patient too, right? The patient that’s receiving the eggs will say, My sister wanted to do it and then she went to the lawyer and they scared her. Just like you said at ASRM, everyone is with these wide eyes, right?
Jones: Yeah.
Brissman: Now, most of these arrangements don’t break up. But the ones that DO break up are the ones that maybe should have broken up.
Jones: Right.
Brissman: Right? The psychologist and the lawyers are the ones who point that out. And..
Jones: So how much contact does the attorney have with the patient at this point? Is the attorney talking through the mental health professional? Do they have an interview with the patient themselves? How are you coming to a conclusion of this is high risk and the deal should be broken up?
Brissman: If you’re talking about a seasoned reproductive lawyer, they’re going to have contact with the mental health professional. But not everybody will, and not all of the time. So the contact may just be, for instance, say I’m representing an egg donor. I always want the husband to come in also— the egg donor’s husband— because I want to make sure he’s on board. Because, presumably, they‘re going to have genetic kids together, and that’s going to affect their family unit as well, right? So I want them both to come in. And I want clearance from the mental health professional. I want to know that they went to the mental health professional, and the mental health professional thinks this is a good idea. I don’t need to know what went on there. I don’t need to have access to their HIPAA forms, I just need to know it took place, the visit for the intended parents and the donor and the partners and everybody— the social worker, the psychologist thought it was a good idea to move forward. If there are problems that we want to discuss, then I might get a HIPAA form and say, look, this donor doesn’t seem psychologically prepared to me. I want to get a professional, ‘cause that’s… I’ve been doing this 21 years, so sometimes I can get a feeling that a donor is not psychologically prepared. Then, I can go over that, but I have to get a HIPAA form to do that. The donor’s going to have to consent for me to talk to the mental health professional or the doctor about this. I may share my concerns with the donor as well, right? So… and there are certain people I won’t represent. Let’s just say we’re having a gestational surrogacy arrangement, and I’m representing intended parents. So this is another scenario. And they tell me they want to use their sister who has never given birth before, okay? Another bad idea to have somebody who hasn’t given birth serve as a gestational surrogate. I won’t do the arrangement, because it’s too high risk. Even though legally there’s no reason I can’t do it, I won’t do it. If it’s too high risk, I won’t do it.
Jones: And so then… that would be the attorney’s decision if they’re going to represent, but ultimately who decides if the deal is broken up? Is it the mental health professional’s call? Is it still just a recommendation to the physician? At the end of the day, who makes the ultimate call that we can’t do this?
Brissman: Well, normally in a practice… it depends on the practice… most established practices will not overrule their mental health professional, but it [inaudible] recommendation. It just depends how strong the recommendation is, right? So, if you have a donor take her psychological exam, which is two parts: it’s an interview, and usually it’s a test, okay? A multiphasic personality test, either what’s called a PAI or a MMPI, these are various personality tests, right? If somebody fills out the personality test and they have some borderline, maybe, issues, then coupled with the interview, there may be some caution, right? But let’s just say they take the personality test and they test as a schizophrenic manic-depressive with bipolar tendencies. That’s like… somebody who has severe mental health issues. We’re not gonna use… I mean, no practice is gonna go forward. Testing for all those mental health issues is nearly impossible, unless you’re not reading the questions, right? So ultimately, it’s usually the doctor’s decision. They can find another lawyer if I recommend them against proceeding forward. However, most practices that are really, really tight on their legal and psychological, if the contract isn’t signed, they’re not gonna go forward. If the donor doesn’t sign the contract, then the deal is, or the procedure won’t happen, right? If the donor backs out herself.
Jones: How customized do each of these contracts need to be? Are they very different contracts in almost seemingly similar situations that it’s not LegalZoom where you can get an employment agreement and just add or change a few clauses. How often can practices sort of revisit a template of a contract, and how often does this look like something that’s very different from a case that, on face value, seems very similar?
Brissman: Well, templates get revised all the time. I’ll tell you the most pressing, interesting issue that’s come up in the last six months, in which we have been revising all of our contracts, and this is huge for the reproductive area, which is DNA testing. Companies at-home genetic testing like 23 and Me or other companies. So you have a donor, right, and part of the agreement is who is going to be aware that this child is made from an egg donor, right? So let’s say the sister again is donating to her sister… is the whole family gonna know? So let’s just say this child, at some point, registers as an open donor on an at-home genetic testing service, like 23 and me. Then, let’s just say that a donor, as well, also registers. That’s gonna show up that that’s her biological parent. Parent isn’t really the right word, but that’s going to be the person that’s biologically considered her mother. These 23 and Me— anonymous egg donors who have contracts through agencies is a big thing that gets revised now, so it’s gonna look different in every contract. I’ll give you an example. Let’s just say that a donor never registers on 23 and Me or at-home genetic tests, because in the contract she agreed to never do that, right? Let’s just say that the child never registers, either. I’m going to give you a real example. The donor’s sister registers, okay? And starts finding out all the people who might be linked to her, and some day those people find each other on Facebook. It doesn’t have to be… it could be a relative once removed that registers. I have a child— not a child, 42 years old— who was born from a sperm donor. She wanted to find out who her sperm donor daddy was. So she bought an at-home genetic test, registered, and the bio dad or sperm donor was not on there, but all his siblings were on there. So you following this? So the child of a sperm donor goes on, finds out that the siblings are on there, so she contacts the siblings, the siblings are like, we never donated sperm, maybe it’s our other brother. So then, she finds the other brother, but he’s not on social media, he’s older, he’s 65. So then, she goes on to social media and finds that this man has children. So his children don’t know that he donated sperm when he was in medical school. So he’s got three kids, and she friends them on Facebook. So all the sudden, these three children are getting friend requests from some random woman who’s claiming to be genetically their sibling-- half-sibling. So these are all in the contracts, and this is a huge… so, as far as changing the agreements, they change all the time, this is why we don’t want people pulling them off the internet. But they are sort of a template, because you have to start somewhere. Are you going to allow 23 and Me. Are you going to allow meeting the donor? Are you going to allow telling people? There are certain things that are going to be similar in every agreement, but people are going to have differing opinions. The biggest thing in donation or sperm donation right now is that I believe there will be no way to be in any way anonymous, soon. DNA has become something you can test anywhere. If you are going… if you’re feeling ashamed or you’re not coming to grips yet that it’s not your DNA, I want you to examine that psychologically, because someday this child will know. Which is way different than when I started 20 years ago, right? When people were okay with not telling people and there was no such thing as going to CVS and paying $50 and finding out all these things. I’m not a big fan of at-home DNA, though. Also it has a lot of legal ramifications. For instance, if you do an at-home DNA test and you drink a soda and you leave it at a bar where someone was killed and they take your soda, you are now in the database for witnesses, so… as a lawyer, that’s one thing that I don’t think people should be doing, but…
Jones: But it does really hit home the point that I think there’s still a lot of programs that are talking about anonymous donors or are still talking with donors as though anonymity is still attainable. And we have been having this conversation recently, and you have just expounded it, which is that with all of this DNA available, the DNA is the identity, and it’s easily traceable in so many ways, you just gave an example of someone who’s not a private investigator who through a few at-home tests and social media was able to narrow down who her biological father was, who the sperm donor was. Are you seeing a lag in the language that practices are using when they’re talking about topics with these.. Both with intended parents and donors?
Brissman: Yes, one of the things these practices do is they write their consent forms when they opened in 1970, and they don’t revise them. And that’s a bad idea. They need to have… they have their own egg donation program, their own sperm donation program, their own embryo donation program… they need the donors to know about these at-home genetic tests and the recipients to know that this can cause an issue, and they cannot be held responsible if people use these at-home genetic tests to find each other, right? The biggest thing that physicians are not used to is they just think that they just practice medicine, right? Third-party reproduction is a village, right? It’s not just practicing medicine. It’s knowledge of psychology, it’s knowledge of the law… there needs to be a third-party team that has all of these people on the team making sure that everything is okay. And to be honest, more important than me, for the long-term, I mean the lawyer is important to save the doctor malpractice money, and that’s huge, ‘cause if they keep getting sued, they can’t be in business. But the psychologist is protecting the future and their expectations and that’s really important, also. Because the doctor just wants to help the patient. I had a client whose sister donated to their sister, and I know them because I knew them outside of my practice— they came to me, but I knew them outside of my practice. And the one sister did not talk to the other sister for five years. And when I asked her why, she said that psychologically, she was unprepared for the feelings she would have when she saw the children that her sister gave birth to. So. And I said, Didn’t the psychologist bring this up? And she said, No. I don’t know if that’s true, and it wasn’t that she didn’t love her sister. She said she couldn’t be at family gatherings because she knew she’d promised her that those were her kids, but she felt like they were hers. And that’s not a good donor, right? We don’t want to harm anybody by practicing medicine. These are things that practices need to be aware of.
Jones: How often are you finding that practices have these third-party teams in place? If you had to ballpark, what’s the percentage of ones that do and don’t?
Brissman: Ok, so most do not have these big third-party teams, believe it or not. So if you go to SART, the Society of Assisted Reproductive Technology, you want to go to a program that does a lot of egg donation, or does a lot of gestational surrogacy. So, yes, if you’re in California or New York, there’s gonna be third party teams, where most of the population is. But if you’re going to the middle of America, so you’re going to Nebraska, Kansas, Oklahoma, Missouri, Arkansas, like, middle of the country, and maybe they’re not doing that many egg donation cycles per year? Right? So, instead of, like, 500 or 1,000, like a huge clinic is doing, they’re doing 10, they’re not investing in the money for a third-party team, because they don’t really need it. So, that’s where you’re going to get the most mistakes. But, you’re also gonna find that people are more laid back in those places, overall, so it’s gonna be a combination of lack of knowledge and just the personality of the state. Like if you have a New York City, wealthy couple, they may behave differently than a high school graduate who’s really just calm and laid back and lives on Alabama time.
Jones: Are you saying that one is more litigious than the other?
Brissman: Yes.
Jones: That may well be the case, but I would never want to rest on that, thinking, Oh, well, people here, they’ll never sue anybody, because…
Brissman: No! I don’t think that’s a good idea, but I’m saying that’s the way the world is operating. They’re thinking, Oh, people don’t do that around this, and honestly, the smaller practices, one huge lawsuit can kill them, right? The bigger practices, probably, even though they don’t want it, they probably can…
Jones: They’ve already been sued a dozen times, in New York…. [laughs]
Brissman: Yep.
Jones: That’s part of the cost of doing business.
Brissman: Yes. And a lot of the cost of doing business, honestly, is expectation. Right? So I had a case a very long time ago that involved a person who did sperm sorting. Not PGD testing that you can do now for sex selection, you used to be able to do sperm sorting, okay? And they were told how accurate it was, but they got the wrong sex through the sperm sorting, so they sued, right? The case did settle out, but the consent form was not clear enough about how likely or unlikely it was to work. And that is important, right? Informed consent. You don’t want the patient to have expectations that are different than what you can provide.
Jones: So what do you recommend for these practices that are in the interior of the country or at least in small markets that maybe just do a couple dozen third-party cycles each year. They’re not gonna have in-house counsel, and they’re not gonna have an in-house mental health professional, either. How do you recommend they retain a team that’s also effective but makes cost sense?
Brissman: So they need to understand, first, the difference between consent and a contract. The practice has to have their own consents and they would be wise, even if they’re small, to invest in a lawyer in their state-- every state has a reproductive attorney. There’s a society for reproductive attorneys. There’s probably three or four hundred members, I’m a member, you can go online-- it’s called AARTA. It’s like the Academy of Assisted Reproductive Technology Attorneys and you can look up who’s in your state. These are all people who have done more than 50 cases each of surrogacy and egg donation. There’s a big vetting process to get in the organization. And you want to make sure someone has written good consents for your third-party. That’s important. That comply with state law, which is why you want someone in your state as well. In addition to that, you want to understand the difference between what is a consent and a contract. So a lot of doctors don’t understand this difference. In all third party arrangements, there needs to be a contract between the parties. Even if it’s anonymous and they don’t know who the donor is, they’re still signing a contract in counterparts. A consent is, I’m consenting to you the physician to perform the procedure and these are the risks. A contract is between two parties. If these smaller programs are not requiring the egg donor or the recipients to get legal advice about proceeding forward, if there is a lawsuit, they are 100% gonna be brought in. Because there was only consent on file, there was no contract between two parties. But if there’s a separate contract between the egg donor and the recipient, and they have a fight or disagreement, it is possible that the clinic may not even be in the suit, because what they’re arguing about is the contract between the parties that the clinic is not a party to. So that’s gonna lessen the burden if they agreed outside of the clinic on the contract. And the second is especially if you don’t have qualified mental health people on staff, you send them to somebody outside, right? Send them to a private practice to get screened, somebody who does this all the time, there’s always somebody in the state who can do it. Certain states are gonna have people they might have to drive. For instance, if you come to the New York area, there’s gonna be psychologists within two miles, ‘cause Manhattan is what, 7, 8 miles long, and there’s plenty of psychologists. If you go to Idaho, yes, you might have a 2 hour drive to get to a good psychologist that you’re gonna have to go to one or two times. But, y’know, that is a cost of the process, that’s important. So you do want them to go in person to the mental health professional and understand what they’re getting themselves into. It’s not unusual for these huge states that have a lot of land for people to drive. So someone in Idaho is gonna be used to maybe having a 2 hour trip to going to a professional as opposed to somebody in another area of the country.
Jones: So how are those states now changing and adapting laws? The most recent… some of the most recent developments have happened in New York, at the time of recording we’re talking just after New York state has included IVF insurance coverage in their budget. Are there third party regulations and rules in this legislation as well, and how are states adapting as they start to introduce more legislation?
Brissman: So states are becoming cognizant of these issues, and just in the last two years, there have been about seven new laws that have been enacted around egg donation and gestational surrogacy. All of those laws have been positive, but some of them have had things that don’t necessarily make sense in the reproductive law world. Because politics sometimes doesn’t necessarily reflect practice. So Washington state has new positive law, Maine has one, Washington DC, I think there’s one proposed in Maryland, there was one proposed in New York, it hasn’t passed yet. These are hard-fought battles, usually, because a lot of times they go on party lines, and in general, Republicans don’t like reproductive technologies, because that fits in line with their abortion stance. They don’t like creation outside the womb, which is in the reproductive health arena, which is abortion, which they’re against. And sometimes they don’t understand. Most of the time, though, these laws clarify certain things. But also, sometimes, they lack understanding. For instance, the law in New York, for gestational carriers which is just proposed now, has a provision in it that the carrier doesn’t have to be someone who's given birth before. So. That’s a very bad idea. Number 1, we don’t know that person’s uterine history, so we don’t know if something bad could happen to them during delivery. Could they stroke out, could they have a heart attack? We have no response to their body in pregnancy. We don’t even know if they can get pregnant. Second, psychologically, there’s a lot of hormonal changes during pregnancy. We don’t know how it’s gonna affect them, if they’re gonna be able to relinquish the baby, it is a certain mindset and only a certain person can serve as a carrier. Sometimes the lack of knowledge on the part of the senators makes the legislation poor, so that is also something that’s gonna evolve. And something else that’s gonna evolve is the ethics of the society. So your ethics take on, maybe… right.. So maybe in the 1800s, people saw nothing wrong with segregating Jewish people keeping slaves, not allowing gay marriage, that was the ethics of the times, right? Now, if you bring that up at this point, our ethics have changed. We certainly don’t believe in having slaves, or segregating people based on religion, or I’m sure some people don’t believe in gay marriage, but in general that’s an uptick to allow different types of families and be more tolerant. So, things that are not in the legislation now that I see as trends that are going to be problems are things like no age limit. So technically, you can make anybody pregnant. An 80 year old woman can have a baby. You can prep her uterine lining with progesterone and other drugs and Lupron and take her out of menopause and she can give birth. She might die of a heart attack, but she can carry a baby. In India, I believe, someone in their 70s gave birth. So that’s not in the legislation, but at what point are we gonna say, okay, the moral standing of our country doesn’t allow people to become pregnant after…
Jones: Are there ANY states with age limits right now?
Brissman: No.
Jones: Why do you suppose that… is it simply because the politicians don’t have the appetite to discuss it, or is it because no one is recommending it.
Brissman: No, doctors...doctors set their own limits, normally, based on medical data of what is safe. So over a certain age. But those limits have been stretched. So when I first started, you would never see somebody 48 years old carrying a baby. That would be very, very, very rare. Now, that’s very common. Right? It’s very common for people in their late 40s to use an egg donor and have a baby. And that’s even going up. You see people in their early 50s, you see… Nancy Grace, I believe, on TV, didn’t she give birth in her 50s? And you see people doing that. The age limit is getting higher as life expectancy is getting higher, as medical technology is getting higher, so I think physicians and politicians, it’s a very controversial subject, so they stay away from it. The other issue is, at least in my view, that hasn’t hit the political arena, is how old is too old to parent? So let’s say that you are 65 and single and you own a $100,000,000 company. And basically you’ve worked your entire life, and there was nothing else but your work. And now all the sudden, you hit 65, you sell your company, and you think, Oh my god, what am I going to do with all my money? I have no children, I have no legacy, and you just wake up out of your 65 year fog, and you decide, I want a baby. You’re a single man, your sperm is fine, you’ve got $100,000,000, you find an egg donor and a surrogate, which is completely legal, and you have a baby. You live to be 85, and everything is fine, but what about if you’re 70? What about if you’re 75? What about if you’re 80? At what point does it become that the interests of the child become more important? Our country is a very people’s rights, what you want is allowed, right? We are not communists. We do not believe that individual rights are paramount over the good of the whole, right, in this country? At what point do we say, no, our individual right to have a baby at 85 is not appropriate. So, right now, it’s practices policing. It’s doctors setting the rules. And is that appropriate? Each clinic is gonna have a different view, and is that what we want for our society, for each doctor to be able to make those views, or…
Jones: If you were a betting person, would you think it would take a high profile case like the one in India to happen in the United States in order for that legal conversation to take place at the lawmaking level?
Brissman: Yes, what might happen is some 85 year old might go to the Ukraine, where basically surrogacy is legal, but it’s a developing country, so money will speak, and they will find an agency to have a carrier for them and they will come back and they will die of a heart attack in the airport and the twins will be left parentless. And if it makes the news, that’s when you’re gonna start to see regulation.
Jones: And so age limit is one, what other ethical quagmires do you see having to be addressed in the law?
Brissman: So, you see foreigner surrogacy, so people from foreign countries, most notably China at the present moment, come over to the United States and they do one of two things: they have no reason for using a carrier except they want a boy and sex selection is illegal in China. They want a US citizen baby and their wife doesn’t want to carry the baby. So there’s no medical reason, and they’re just coming here mainly to get a boy that’s a US citizen. Because US citizens have a certain advantage, and it’s a lot harder for Chinese to get citizenship and visas than it was in the past. We are limiting the amount of investment coming in, and one of the ways to do that is to have a baby here through a surrogate. So, they are also upping the cost of surrogacy, because a lot of China… China has a lot of people, and they have a lot of wealthy people now, because the economy is up and coming, and they can pay a lot more than the average US person. So, the compensation to the surrogates is going up. That’s one big issue. The second big issue with foreign surrogacy is there are certain-- now this is not, I think, widespread-- but there are certain practices we would not consider ethical. For instance, you have a couple in China, who has decided that they want 7 sons. So they don’t want to go to one agency, because one agency is not gonna make them 7 sons. So there are different theories why they want so many, maybe they want a lot of children to work in their companies, maybe they’re selling the babies, whatever they’re doing, but there are over a hundred surrogacy agencies in the United States. So they come to my agency, let’s say, because I have a surrogacy agency, and they hire me with perfectly reasonable criteria, and nice reasons for their plight to have one baby. And they go to an agency in Massachusetts and do the same thing. And they go to an agency in Florida, and an agency in Nevada, and all of the sudden, you discover that these people are having babies all over the place, all at the same time, and you don’t really understand why, and there’s just risks involved in that.
Jones: Is there nothing in place so that the attorney in Maryland knows this is also happening in Florida, is there… other than disclosure from the clients, is there any way they would be able to know..
Brissman: There’s almost no way, because of client confidentiality, right? The only way you would find out is sometimes, because the field is small right now, of reproductive lawyers, if I end up representing the couple, and then their surrogate calls me for advice from another company, not knowing that I also have them as a regular client. And that happens sometimes.
Jones: And so who’s in charge of advising states as these laws are updated and introduced. Does the Society for Reproductive Attorneys consult with legislators as this is happening? Are REIs involved? Who helps lawmakers update these laws as we start to have a different ethical understanding than we did in the past?
Brissman: Well, they do seek a lot of advice, but these kinds of things are well beyond the advice they seek. Their first step is just getting the facts, like who’s the parent, what’s enforceable, on the books. Because these are second layers of legislation, and nobody’s gotten there yet. Because it’s really only been in the last 5-7 years that you’ve been seeing these problems. Especially the problems with China, because that started when China lifted the one child policy a couple of years ago, and also when Trump came into office and made it a lot harder for China to make investment over here. So, things change really quickly, and they’re gonna change again now with gene editing and the ability to do certain things to embryos that you never were allowed to do before. Which is gonna become another problem— can you pick your child’s intelligence? Can you pick, you know, it’s one thing, lawmakers think it’s one thing to edit out for disease, right? So if you have an embryo— and we don’t have this ability yet— but the embryo has cystic fibrosis. And you can somehow manipulate that embryo so that it doesn’t have cystic fibrosis, that’s gene editing. But could you manipulate that eembryo so that it has blonde hair, blue eyes, it can become the next Michael Phelps because you can change the wingspan of their arms to be in proportion, or can you make perfect pitch so you have another Beyonce? That’s gonna be the next wave.
Jones: So right now, is the society.. Like, for example, was the Society for Reproductive Attorneys involved in advising the New York law? I know ASRM and RESOLVE are really involved when..
Brissman: Yeah, so, I mean, there are a lot of lawyers from that organization involved. But there’s a lot of competing interest, and in politics, there’s a lot of compromise. And you certainly… if you bring up these very contentious issues, if you are pro reproductive law, and you bring up these unusual but what some would call hurtful scenarios in a legislative session, you’re not getting anything through. Nobody is going to allow your legislation through if you start pointing out anything bad that could happen. That would not be in my best interests or in the reproductive world’s best interests.
Jones: [laughing] And that is why doctors hate lawyers, because if you talk to any given lawyer for long enough, there’s always a reason not to do something.
Brissman: Well, there’s a difference between proper lawyering and risk aversion. Right now, while I’m talking to you, my building could blow up. That’s probably the same chance that seven different DNAs is gonna be found in one person’s womb. So you have to look at the relative risk versus the benefit. If all you do is weigh risk every day, there are people who are risk averse, right? They never do anything because they just… so it depends on, y’know, what your level of risk aversion is.
Jones: This is why I wanted to have you on the show, Melissa, because it’s just so fascinating to me and to the audience, because there’s always more to peel back, not just of what has happened with legal precedent, but what’s currently happening with new laws on the books or what will come in the future as we as a society debate and decide on these ethics. What haven’t I asked you about third-party law or about law concerning assisted reproductive technology whether it’s for patients or for providers that you would want our listening audience to know?
Brissman: Well, I think really for practice, the most important thing is make sure you have consents that are reviewed by a lawyer. Make sure if it’s third party, there’s a contract and lawyers on both sides. Make sure you have mental health involved and just make sure that you are checking with all the other professionals. And the biggest thing is leave your feelings out of your legal, which is really hard, right? The biggest cases come from the doctors trying to be nice against their better judgement. You feel bad for XYZ because she’s been there for ten years. Treat her the same in terms of what you’re willing to do for procedures as the person who just walks in today. That doesn’t mean you don’t spend more time with her, that maybe you give her a graduated discount over time, but if you wouldn’t do the procedure on X person, you shouldn’t do it on Y, just because you feel bad. Feelings always get you in trouble.
Jones: That is sage wisdom and one that I could see being replicated. Melissa Brissman, thank you so much for coming on to Inside Reproductive Health.
Brissman: Thank you very much!