Amanda Troxler: I got lucky in that I met another attorney who specialized in this field, and then right after I met the attorney, my former boss put up a job posting. It was just amazing timing. It appealed to me because of my own background. I was raised by my father, who was a single gay man. That was, of course, very unusual in the ‘80s and the ‘90s, and not so unusual now.
At first, it really appealed to me because I liked the idea of helping same-sex couples grow their families in a way that is secure, because there is so much insecurity in my own background. As I started working in this field, I became more and more aware and sensitive to issues of infertility, so that became also a really important thing for me to help people overcome. That also is what led me to being an egg donor, which really solidified this as a passion for me and a vocation.
Dr. Aimee: Thank you for doing your work. I just hear the passion behind you describing what you do and why. Let’s talk about why it’s important to consider the legal aspects of family formation and why you want to have a contract in place. What does a legal contract do for the families involved?
Amanda Troxler: A legal contract is essential when you’re working with any third party toward building your family.
I had a client once who came to me and said, “Why do I need to do all of these legal processes? I would just as well have it signed on a cocktail napkin that I will be the parent and my friend will not.” I said, I understand that, but the problem with signing it on a cocktail napkin is that you won’t be the legal parent, so your name won’t go on the birth certificate, you won’t be able to travel with the child, you won’t be able to register the child in school. So, you really do need a contract.
Some of the first decisions you make for your child are made before they’re even born. It’s important to make sure that there is stability so that when this child comes into the world, you and your child have a solid legal parent-child relationship. That’s really what is best for you as the parent, but it’s certainly what is best for the child.
Dr. Aimee: A cocktail napkin contract is not going to work, literally. Or the Craigslist contract, or the Legal Zoom contract is just not as binding.
Part of this is also, like you say so eloquently, centering the needs of the future child. How does it protect or center the needs of the future child?
Amanda Troxler: It is important when the child is born that it’s very clear legally who the parent is and who the parent isn’t. Otherwise, you’re potentially opening yourself up to custody battles, which can be extremely draining and difficult, and emotionally painful for a child. You can avoid that by making sure that everything is up front in the beginning, and everything is done correctly in the beginning, then you can save you and your child a lot of heartache.
Dr. Aimee: I think that sometimes now we’re seeing more unmarried people becoming parents through IVF. I highly recommend that people, above and beyond just the contract that the IVF lab has you sign, also see you for a separate contract. Don’t you think that would be something that people should consider?
Amanda Troxler: Absolutely something to consider. A lot of times when people are going into an egg retrieval cycle and embryo creation, they’re very optimistic about the future and the future of their relationship. Unfortunately, we have seen high profile cases where these relationships disintegrate, maybe even under the pressure of all this medical treatment. Then you have a possibility where one party doesn’t want to use the embryos and doesn’t want to become a parent anymore and the other party does. For the party who does, it might be their only path toward becoming a parent with maybe their own genetic material.
Dr. Aimee: Unfortunately, I’ve seen those situations occur. It’s just really hard for me to see those kinds of disputes, so I want people to avoid those worst case scenarios as much as possible.
Now moving toward talking about egg and sperm donor contracts, what are the basics that people need to be looking out for in those contracts?
Amanda Troxler: The first basic is obviously who is the parent and who is not. That will be really clear throughout the contract. Especially in California, we have a model of intent, whoever is intended to be the parent is the parent. You want to make sure that the intent is very clear.
There will also be conduct restrictions, both for sperm donors, and especially for egg donors, what they can and can’t do during the cycle. Making sure that they’re not getting body piercings, tattoos, anything that could have communicable diseases, travel restrictions.
We want to lay out any payments that are made and when they’re due. Also, what happens if, God forbid, there are complications. Especially with an egg donor contract, it’s different from sperm donation in that egg donation is invasive and there is the possibility of complications, so how she’s covered in the event of that.
Finally, we address issues of future contact, so what happens if there is medical information that needs to be disclosed, how that gets conveyed, and also what happens when the child is old enough to understand the circumstances of his or her conception. If the child wants to meet the donor, is there an avenue to do that?
Dr. Aimee: I love that you address that. I think that’s really important to do that from the beginning, from the start, and have those conversations early and often. With your child, too.
A lot of times, what I’m seeing nowadays is these egg donor agencies have their preprinted egg donor contracts that my patients are just signing without representation. What do you say about that?
Amanda Troxler: I’m an attorney, so I’m biased. I do think it’s really important to have your own legal representation. An attorney who has done this and specializes in this might bring up things that you never thought about. I’ve had these conversations with my clients when we’re going over the contract together and they say, “I just didn’t think about that.” It’s my job to think about that, that’s why I’m here. So, I really do think you need that.
Also, with those contracts, a lot of times they’re just sign-as-is and there is no negotiation. I think that means that the desires and wishes of the parties may not be conveyed in that contract. For instance, somebody gets a contract where everything is anonymous and there is no expectation of contact ever. They think, “I guess that’s what the other side wants,” and they each think that, but that might not be true.
Dr. Aimee: If an egg donor or a sperm donor is married, do they need to include their partner in the legal contract regarding that donation that they’re doing?
Amanda Troxler: Ideally, yes. That’s part of being open and honest is making sure that everybody is on board. It is something life-changing and is creating a child that is genetically related to any children that you may have in the future.
But I’m less of a stickler for it than other people. I know a lot of attorneys who will not require it on a sperm donation but will require it on an egg donation, so sperm donors don’t have to, but egg donors do. I often think that shows some sort of bias, and that concerns me. The argument that they would use is that egg donation is more invasive, which is true. But if I have an egg donor whose spouse is estranged and they’re insisting that he has to sign something, as an attorney that makes me uncomfortable because I don’t think that he should be able to have that hold over what she does with her body, and that also provides a mechanism for him to exert control over her by withholding his consent.
Dr. Aimee: What are the different legal considerations if we’re talking about embryo donation now?
Amanda Troxler: With embryo donation, of course, both embryo donors have to consent because the embryo belongs to them, it’s considered property with a special value. So, you can’t have one donate without the permission of the other.
Embryo donation is really interesting because sometimes the embryos are created with donor material and sometimes they’re created with the couple’s own genetic material. Maybe the people who have created embryos wouldn’t have been donors. There has to be a lot of disclosure about medical history, maybe more so than in other donor arrangements.
Dr. Aimee: There are some things around surrogacy that we should consider from a legal standpoint. One of the terms that people don’t understand is parental orders and how it differs from state to state. Can you talk to us a little bit about that?
Amanda Troxler: Absolutely. A contract alone is not enough. Even if you don’t do it on a cocktail napkin and you do have a formal contract, that’s not enough. I always tell my clients, please tell me when there is a pregnancy because we need to do this court order, and if you don’t tell me and you show up at the hospital with a contract, it’s not going to work and you’re not going to go on the birth certificate.
You really do need a court order that says that someone is a legal parent and someone is not and lists instructions for the birth certificate. It’s state by state, in that some states, like California, do a pre-birth order, which means you get the court order before the child is born and it takes automatic effect upon delivery. There are other states where they do a post-birth order, like Florida, where they get the court order after the child is already born.
Then also states have different requirements in terms of who can be an intended parent. Some states require that they be married, some states require that one person be genetically related to the child, so it’s really state by state and you have to consult with an attorney in that state.
Dr. Aimee: Is this court order something that someone can do, is it a DIY thing, if someone didn’t want to work with an attorney, could you do a pre-birth order on your own?
Amanda Troxler: Absolutely not. They’re very complicated, especially in California. First of all, you have to be an attorney, so there’s that. Even if you are an attorney, if you’re not a fertility law attorney, you’re not going to know what to do. They are very specific about what they require, and each county has very specific requirements that I have to keep up with. If they don’t like the way that you marked a box, they’re going to reject it.
Dr. Aimee: Thank you for that. I’m asking that for a specific situation that I’ve heard of, and that is a family who wanted to do it on their own, and I didn’t think you could. This just supports what I said. Thank you.
There is probably a lot of misinformation out there about the legal aspects of family formation. What do you wish intended parents, donors, and surrogates knew?
Amanda Troxler: In general, what I wish people knew is that surrogates and donors really don’t claim rights over children. There’s always that fear that the surrogate is going to change her mind. These are people who are usually done building their family. When I say to them, “And then you’ll hand custody of the child over,” they’re like, “Absolutely, that’s the best part.” Donors also. If they wanted to grow their families, being a donor is not the best way to grow your own family, so they have other things that they would do.
For donors and surrogates and intended parents, what I want them to know is that the most important relationship is between them and the other party, much more than even any of the professionals. Of course, work with professionals that you trust, that’s really important, but also work with people that you like. If you’re a surrogate, this is going to be at least a year, it’s somebody that you’ll have a lot of contact with, so you want somebody that you have similar values to and that you care about. If you’re working with a donor or donor with an intended parent, even if you never meet, you’re still tied together forever through this child, so pick someone you like.
Dr. Aimee: When it comes to working with you, I imagine most of what happens can be done over email, video calls, or phone calls. It’s not like someone has to visit your office.
Amanda Troxler: Certainly, they could visit. I have people who like to visit, but that’s unusual. It’s up to them. Everything can be done through email, calls, and Zoom. Now that we’ve had the pandemic, I think we’ve all gotten really good at Zooms.
Dr. Aimee: Even notaries can be done online.
Amanda Troxler: Notary can be done online, except it can be a little bit risky. California had a proposed law to allow online notarization that didn’t pass, so online notarization is actually not considered notarization. That’s also something to discuss with your attorney because some courts will accept it and some won’t.
Dr. Aimee: Where can people find you and work with you?
Amanda Troxler: You’re welcome to visit my website, Troxlaw.com. I can be reached by email, [email protected]. I’m located in Los Angeles, California, and I’d love to speak with you.
Dr. Aimee: Is there anything else that you want to add before we wrap up?
Amanda Troxler: I just want to add that it’s been a pleasure being here. Thank you for having me. I love having these conversations. This really is my life. Egg donation, surrogacy, sperm donation, it’s my vocation.
Dr. Aimee: I love it. Thank you, Amanda, for joining us. I hope to see you at the next conference.
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