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Prince Harry and Meghan Markle, who catch the attention of the media and the public with their every single move, are no strangers to controversy. Yet, recently the British tabloids have started speculating on yet another potential aspect to this couple: surrogacy. Speculation has recently swirled about whether the Duke and Duchess of Sussex may have used a surrogate to carry and give birth to their children Prince Archie and Princess Lilbet, who are sixth and seventh in line for the British throne. Some critics argue Meghan should provide more proof that she gave birth.   First off, from our review, there is currently no evidence or admission that Harry and Meghan had a surrogate for either birth. It's possible these rumors are their critics looking for another reason to harass and doubt the couple for living independently in the United States and apart from the rest of the Royal Family. Surrogacy contracts  are normally governed by confidentiality clauses, so if Harry and Meghan did have a surrogate, their surrogate would likely be bound to not disclose the identity of who she carried for. In most states, the parentage action in which the court finds the intended parents are the parents, it would be sealed to the public. In a state like California, only one birth certificate is issued naming the intended parents as a child’s legal parents, while in some states, a birth certificate with the surrogate’s name will briefly exist before being sealed. Nonetheless, the scenario raises unique questions: why would it matter if a child born is born via surrogacy, if genetically the child of Harry and Meghan? What legal issue would arise under royal succession laws if a child was born by a surrogate as opposed by the Duchess herself?   Challenges to Conventions  Meghan Markle, as a biracial, American-born royal, has already challenged several conventions, from speaking openly about mental health to addressing racism within the royal institution. We would think that Meghan and Harry would not be reluctant to embrace surrogacy publicly just as they are willing to talk about other aspects of their life. No doubt, it would further their reputation as modernizers while igniting a cultural conversation about family-building alternatives.  Nonetheless, it is surprising to learn that the method of giving birth could matter for legitimacy. The line of succession to the British throne is governed by centuries-old traditions and legal frameworks, primarily the Act of Settlement (1701) and the Succession to the Crown Act (2013). These laws ensure a clear lineage, emphasizing legitimacy and birthright. Having said that, surrogacy introduces complexities that these statutes never anticipated.  Central to the legal debate is the Roman law principle of mater semper certa est —"the mother is always certain"—which underpins UK family law. This legal concept reinforces the surrogate's initial status as the mother, potentially complicating the royal child's claim to legitimacy. The Succession to the Crown Bill discusses the necessity for an heir to be the "offspring of both parties" in a royal marriage, raising questions about the legitimacy of children born via surrogacy. Interestingly, while the British royal family has yet to address surrogacy publicly, other royal families have faced similar challenges with modern reproductive methods. For instance:  Viscount and Lady Weymouth : Viscount and Lady Weymouth became the first members of the British aristocracy to have a child via surrogacy. This event has sparked conversations about the acceptance of surrogacy within the upper echelons of British society. Prince Gustav and Princess Carina of Denmark:  Welcomed their second child via surrogate via surrogate 11 months after the birth of their first child.   This couple overcame strict royal rules to get married before, which makes historian and royal house commentator Lars Hovbakke Sørensen thinks that such experience "can help to create more understanding around their decision about surrogate motherhood." These examples highlight that royalty worldwide navigates the delicate balance between tradition and modernity, with varying degrees of transparency.  The Legal and Cultural Debate  If Harry and Meghan were to announce the use of surrogacy, the implications would extend far beyond tabloid headlines.   Royal rights and privileges remain undecided for a child born via surrogacy. Legal experts suggest that a parental order, which transfers parental rights to the intended parents, might satisfy succession requirements. Nevertheless, this would likely require additional scrutiny or even new legal precedents.  Legal experts point out that the monarchy’s approach to succession has evolved over time to adapt to changing societal norms. One great example is the Succession to the Crown Act (2013) abolished male preference primogeniture, allowing female heirs to take precedence over younger male siblings. This reform demonstrates that royal laws can be flexible.   Culturally, surrogacy remains a polarizing topic. It has gained acceptance in many parts of the world, including the UK, but traditionalists often view it as incompatible with royal lineage. “The queen was this wonderful blank canvas,” says longtime royals expert Richard Fitzwilliams, on which Britons could project their own views and perceptions onto. 6  However, after the queen’s passing, royalties are facing challenges. The institution still enjoys a broad support, a recent  YouGov survey  shows that the rate has declined from 62% to 58%. 7  To maintain its popularity, even the monarchy must eventually reconcile its traditions with contemporary realities.   In the meantime, surrogacy needs increasingly grow in the UK. The number of parents having a baby using a surrogate in England and Wales has almost quadrupled in the last 10 years. Family Law Commissioner Professor Nick Hopkins commented: “The use of surrogacy to form a family has increased in recent years, but our decades-old laws are outdated and not fit for purpose.” All this evidence proves that reformation is urgently needed. As Lord Michael Jopling of the House of Lords of the United Kingdom mentioned: “Surrogacy is becoming much more common and it is not impossible that this could happen in the future……It is rather important that this should be clarified now because it could give rise to considerable difficulties in the future.” 10  Surrogacy, although once seem to disrupt the “ideal” image, it is now a topic that requires the royal family’s opinions.   Public Opinion and the Future of the Monarchy  While the story has yet to ignite without further evidence, this controversy also sheds light on perceptions of surrogacy in British society. In the UK, surrogacy arrangements are legal but heavily regulated. Public acceptance has grown, particularly among younger generations, but a stigma persists.   Public opinion will undoubtedly shape how the Royal Family approaches this issue. Surveys indicate a generational divide: younger Britons tend to support alternative family-building methods, while older generations remain more conservative. One poll  shows that 55% of respondents aged 18-24 and 50% of respondents aged 25-49 viewed surrogacy positively, compared to only 36% of those over 65. When it comes to the public’s perception, transparency could play a key role. A candid acknowledgment of surrogacy might help destigmatize the practice and align the royal family with modern values. Alternatively, silence or ambiguity might instead fuel further speculation and criticism.   If handled thoughtfully, the British monarchy could use this moment to demonstrate its relevance in a rapidly changing world. By embracing progressive values while respecting tradition, the royal family could reinforce its place as a unifying institution.   Conclusion: Tradition Meets Change  A possible surrogacy controversy surrounding Harry and Meghan reflects the evolving nature of family-building in the 21st century. While surrogacy raises complex legal and cultural questions, it also offers an opportunity for the British monarchy to demonstrate adaptability and inclusivity.   If a royal child were to be born via surrogacy, it would undoubtedly spark debates about legitimacy and succession. However, it could also set a powerful precedent, by challenging outdated norms and normalizing diverse paths to parenthood.   If there is a surrogacy birth in the Royal Family, the world will be watching. Whether through transparency, legal reform, or quiet acceptance, we hope the British Royal Family redefines what it means to be royal in an era of change.   Other References  https://timesofindia.indiatimes.com/life-style/relationships/love-sex/amid-divorce-rumours-prince-harry-meghan-markle-now-embroiled-in-surrogacy-controversy/articleshow/116961681.cms?utm_source=chatgpt.com   https://www.nuffieldbioethics.org/wp-content/uploads/Surrogacy-law-in-the-UK-ethical-considerations.pdf?utm_source=chatgpt.com   https://www.tatler.com/article/surrogacy-law-change-uk?utm_source=chatgpt.com   https://www.financeuncovered.org/stories/surrogacy-law-reform-law-commission-cafcass-low-cost-surrogates-new-life-baby-broker   https://www.nytimes.com/2025/01/22/world/europe/prince-harry-murdoch-lawsuit.html?unlocked_article_code=1.rE4.j5a9.wecDYt_l0p1V&smid=url-share

As President Donald J. Trump  promised, he issued a slew of executive orders on his first day in office on January 20, 2025.  The one that potentially affects surrogacy is his executive order to restrict birthright citizenship which is titled “ Protecting the Meaning and Value of American Citizenship. ”    The Executive Order creates a policy that no department or agency will issue documents recognizing United States citizenship or accept state documents that would recognize United States citizenship to persons (1) where either the person’s mother was unlawfully present in the United States and the person’s father was not a United States citizen or permanent resident at the time of birth, or (2) where the person’s mother’s presence at the time of birth in the United States was lawful but temporary, and the person’s father was not a United States citizen or permanent resident at the time of the person’s birth.    This Order will apply to persons born 30 days from January 20, 2025 and shall not be construed to affect other individuals from obtaining documentation of their United States Citizenship.  What Does This Mean for Surrogacy with International Intended Parents?  The U.S. has long been a global leader in surrogacy due to its favorable legal framework, laws permitting surrogacy, and the ease of obtaining passports and other documents for children born to American surrogates.   The Executive Order does not directly mention surrogacy. In fact, it is worded narrowly so as to not affect the citizenship of anyone who does not fall under the two specific situations. The first group of people excluded from citizenship are those where the mother is unlawfully present and the father is not a U.S. citizen or green card holder. This would not apply to international intended parents as neither would enter the U.S. unlawfully. The second category requires two things, both that the mother’s presence is temporary and the father is not a U.S. citizen or permanent resident.     The Executive Order defines “mother” and “father” to mean immediate female and male biological progenitor. " Progenitor ” is not a term that we normally see or use. In fact, this term has not appeared in a U.S. law before. As such, it is subject to interpretation.  The origin of the word is the Latin word progenitor , or the verb progenitus , and means “to beget” or “give birth.” The use of the word “biological” progenitor suggests that this would refer to a woman giving birth, or the man who is responsible for the woman giving birth.     If it were meant to broadly apply to parents through surrogacy, we would expect to see the words “genetic” in place of “biological” if it were meant to apply to a genetic parent. Because American surrogates are almost always American citizens or legal permanent residents, this reading would mean this Executive Order would not deny citizenship to the child born to an American surrogate.    Reading the Executive Order to include intended parents is not a natural interpretation because intended parents don’t easily fit in the narrow categories. If it did include intended parents, it could mean that if the mother isn’t in the U.S. at the time of birth on a visitor visa, but waits until after the birth, the child could obtain citizenship documentation. Or if the child is born to a single father or two fathers, the bar on citizenship documentation wouldn’t apply because there must be both a mother and father without a green card or citizenship. The Golden Rule of statutory or regulatory interpretation is when a literal interpretation leads to absurd results, it is incorrect.     Thus, our interpretation of the Executive Order is that it does not apply to international intended parents.   The Reasoning of Trump’s Challenge on Birthright Citizenship and Why It is Unlikely to Succeed The Executive Order quotes the Fourteenth Amendment of the U.S. Constitution which states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Trump interprets this Amendment to exclude birth citizenship to persons who are not “subject to the jurisdiction” of the United States and argues anyone who is not a permanent resident or citizen is not subject to the jurisdiction of the United States. However, a historic Supreme Court decision established birthright citizenship in 1898.  United States v. Wong Kim Ark, 169 U.S. 649   (1898)  found that a Chinese man born in San Francisco to parents who were at the time both Chinese citizens permanently living in the United States, could not be denied citizenship even though a law at the time, the Chinese Exclusion Act, prevented Chinese from becoming U.S. citizens. The Trump administration reads this case as requiring permanent residence in the United States, when the legal status of permanent residency did not exist until the Alien Registration Act was passed in 1940.    Thus, legal experts predict that any attempt to alter birthright citizenship will likely face lengthy court battles. The possibility of the order ever taking effect in thirty days is unlikely.    The procedure is likely to be as follows: (1) In the thirty-day period before this Executive Order takes effect, it will be challenged by immigrant rights and civil liberties groups in the United States in federal court. In fact, as of the time of this writin g, eighteen states, the ACLU and other groups have already filed a lawsuit . (2) The plaintiffs will request the judge hearing the to issue an injunction, or a stop, to enforcement of the order nationwide until they have heard the arguments and make a decision. An injunction of the Executive Order is likely under the standard which requires (i) a likelihood of success on the merits; (ii) a likelihood of irreparable harm; and a (iii) balance of equities and hardships in favor of the moving party; and (iv) the preliminary injunction is in the public interest.  (3) It will then take months before a trial takes place. We expect that the trial will find the Executive Order is unconstitutional based on the precedent of United States v. Wong Kim Ark.  (4) The injunction or denial of the injunction will then be appealed to a federal appeals court, and eventually the Supreme Court. Each appeal on the injunction could take about a month, Should the injunction stay in place, the case will take more than two years to be resolved, first with a lower court decision after a trial, then after the federal appeals court rules, and finally, with the Supreme Court ruling.     Even in the worst case scenario where the executive order is not enjoined and the USCIS denies citizenship documents to international intended parents, there are alternative ways to establish the child’s citizenship. These include applying for citizenship in one’s home country or applying for special statuses that allow travel without a passport. While these processes may require additional steps, they are manageable with the help of experienced legal professionals.     Opportunities for Growth and Collaboration    The surrogacy industry in the U.S. is resilient and resourceful. In fact, surrogacy continues to expand in the U.S., as Michigan will join states in which surrogacy is legal this year.     While restrictive policies could prompt some families to explore options in other countries, the U.S. remains a preferred destination for its exceptional legal clarity, the shorter wait times, and modern healthcare. By engaging with policymakers and advocating for inclusive family-building policies, industry professionals can help maintain the U.S.’s position as a global leader in surrogacy.    Moreover,  while international intended parents may fear chaos will erupt during the Trump administration restricts immigration, as a surrogacy law firm that experienced the COVID-19 outbreak, we have successfully navigated a crisis that caused the shutdown of courts, passport agencies, and a travel ban for intended parents with a positive outcome for all of our clients.     Advocacy groups and agencies are prepared for whatever the next Trump administration will bring up, working proactively to ensure that families' rights and needs are protected in the future.    Conclusion: Preparing for a Bright Future    The Executive Order was not written with surrogacy situations in mind and we believe a correct reading of the Executive Order does not apply to international intended parents using surrogacy.     In addition, the legal foundations of birthright citizenship, supported by the U.S. Constitution, are likely to survive this Executive Order.  Note that the situation is subject to change, and we will update the blog when there is new information or guidance.    The attorneys of Tsong Law Group have over 30 years of combined legal experience and are licensed in six states. If you choose  Tsong Law Group , we will provide assistance with documents to help with an exemption from Trump’s Executive Order and have solutions for any legal issues that arise, so you can focus on your family building.   Update 1/23/2025:   On January 23, 2025, Senior U.S. District Judge John Coughenour in Seattle has blocked the Executive Order nationwide from coming into effect for at least 14 days while the case is argued.  This is the lawsuit by various states including Washington.

Why same-sex couples should consider a second parent adoption if you or your partner conceived a child through sperm or embryo donation. In 2014, the California legislature added  Family Code section 9000.5  which simplifies a stepparent adoption in cases where one spouse gave birth to a child during a marriage or domestic partnership by removing the requirement of a home study or home visit prior t o the adoption. Previously, home studies costing $700 were required for all second parent adoptions which could take months to complete. The result is a “second parent” or “confirmatory” adoption which is easier than ever for lesbian couples who conceived a child during their marriage or domestic partnership. This Family Code section also applies surrogacy births where the parties were married at the time of conception but one party is not on the birth certificate. When you should consider a second parent adoption if your partner conceived a child through sperm or embryo donation: 1. If you are a same-sex couple that may move out of California in the future. One should not assume that listing both spouses on the birth certificate of the child guarantees the parent-child relationship. States are not required to recognize birth certificates, and case law finds that the birth certificate is not an official act but merely a recording of what two parents report to a county clerk.  An adoption order is an official act entitled to recognition under the Full Faith and Credit clause of the Constitution. Every state differs in its recognition of children born in a marriage, some are gender-specific to recognize only fathers of children born to their spouses as natural parents. So the parentage of same sex couples may be recognized in California but not elsewhere.  2. If you did not use a licensed physician, surgeon, sperm bank, or clinic for your sperm donation. Some women have used home do-it-yourself methods for artificial insemination; others use intercourse. In the first case, a written agreement prior to insemination needs to be in place; in the latter case, no contract between donor and mother will terminate the donor’s parental rights. In these cases, a second parent adoption should be used to ensure that the spouse of the natural mother is recognized as the parent in the adoption.  When would the lack of an adoption order cause problems? In some cases, sperm donors have sought visitation or custody rights; if the donor agreement which establishes no parental claims is not recognized in the state they seek visitation rights, they may be found to have rights as a parent . In the case of divorce, the other parent may claim that they are not responsible for child support. If the state does not recognize the surrogacy or sperm donor’s consent, then parental rights may be established in favor of the donor. A second parent adoption would terminate whatever rights might exist by virtue of the donor’s blood relationship to the child. What about for surrogacy? The Family Code also provides that for spouses or domestic partners in surrogacy where only one spouse is established through the proceeding to establish parentage or Uniform Parentage Act, the spouse is also entitled to a streamlined adoption. So spouses who end up not being on the birth certificate for surrogacy may be able to apply for a second parent adoption. Under this procedure, the spouse who is not on the judgment or birth certificate can receive an adoption order to be added as a parent on the birth certificate or delayed registration of birth if the birth certificate is foreign.  If you have questions about whether a second parent adoption is right for you, Tsong Law Group. Contact us today.

When starting a surrogacy  journey, one important decision is whether you need an escrow account. Let’s explain what an escrow account is and why it’s helpful for surrogacy. Escrow accounts are common in surrogacy journeys because of its safety measures. In surrogacy, intended parents deposit funds into an account either handled by a licensed escrow company or an attorney trust account (sometimes called a trust not an escrow). The escrow account is typically set up at the matching stage of a surrogacy when an agency is involved, or later in independent cases. The funds deposited in escrow are used to pay the surrogate’s compensation and other surrogacy expenses like medical bills, legal fees and reimbursements. The escrow account holder will issue payments following the agreed contract.  Is an Escrow Account required? You may be required to have an escrow account depending on the state law that applies to your surrogacy agreement. Sometimes the parties use the state laws where the intended parents live, the state of the surrogate, or the law of another state that is related to the match in some way.  Here is a map of the states that require escrow or an attorney trust account for surrogacy. California  and Washington ’s laws are unique in that independent journeys do not require escrow but ones involving a matching agency do. Virginia requires a gestational surrogacy agreement to address how expenses will be paid and guaranteed either through escrow, cash, or bonds.  Why Is Escrow Important? Whether your contract is in a state that requires escrow or not, escrow is still advisable for most journeys, even though it adds to the cost of the journey. When managed by the escrow company, having an escrow account ensures that all payments under the surrogacy agreement are made in a timely manner. This reduces the time that intended parents need to spend on the case making and monitoring payments. Escrow accounts reduce risk in most cases, such as late payments, insufficient funds, or funds being misused if entrusted to the agency. By entrusting a neutral third party to manage the account, both parties can avoid potential disputes or financial mismanagement. For surrogates, escrow is very important because it means intended parents cannot withhold payments that are due, nor will the surrogate need to go to court to receive a payment she is due if the escrow is still open. With international intended parents, surrogates will have a very hard time getting bills paid or compensation due if the intended parents do not pay and no escrow is in place. The escrow is usually kept open for sufficient time to ensure that money is available months after the journey is completed.  What about the downsides? The downsides for some intended parents is the cost. However, escrow companies do not charge extra for the length of the journey, and the amount escrow companies charge is relatively low compared to the length of time escrow is in place and the amount of work the escrow does.  Another downside to many is the fear that placing the money with a third party is not safe. We understand it would be devastating if funds in escrow were lost or stolen. For tips on how to choose an escrow company to avoid the risk of theft by the escrow, check out our recent blog,   Worst Case Scenario: Problems with Your Escrow Company . Another downside to some is the fear that money will be tied up in escrow and the journey may not be successful, and then these funds cannot be used. Despite this fear, the parties can agree to keep minimum balances lower after the journey, or have a shorter time frame for closing the escrow if there was no successful pregnancy.  For the surrogate, an escrow account should be on her checklist of requirements for a match. For intended parents, the cost is low and with adequate research, a trustworthy escrow account can be chosen.  Conclusion Using an escrow account for your surrogacy journey is a smart way to keep track of funds and ensure that payments under the surrogacy agreement are made and funding is there for the whole journey. In some states, it is required you have an escrow account. Intended parents and surrogates should both have a dependable attorney that is knowledgeable about what is required and optimal for escrow accounts in surrogacy. Reach out to Tsong Law Group today  as you start your surrogacy journey.

Both surrogates and intended parents engaged in surrogacy journeys should know about paid family leave in their state. P aid Family Leave (PFL) laws  can reduce the financial burden on intended parents when surrogates experience pregnancy-related conditions that prevent them from working. Additionally, intended parents can utilize paid family leave programs to bond with their newborn children. We recommend consulting with your surrogacy lawyer about how these laws can be incorporated into your surrogacy contract. Here is a summary of new PFL laws coming into effect in 2025: State Effective Date Changes/Benefits California January 1, 2025 Increased Paid Family Leave (PFL) and Disability Insurance (DI) benefits Applications for PFL and DI can be submitted 30 days before anticipated leave. Employers cannot require employees to use vacation time before accessing PFL benefits. Mandatory paid sick leave increases from three to five days annually. Maine Contributions Begin: January 2025; Benefits Available: May 2026 Up to 12 weeks of paid leave within a 12-month period. Coverage for pregnancy-related conditions. Income replacement based on average weekly wage, with higher rates for lower earners. Retaliation against employees using PFML is prohibited M assachusetts January 1, 2025 Maximum weekly PFML benefit is increased to $1,170.64. Employees can supplement PFML benefits with accrued paid leave. Strong job protection provisions remain. Connecticut January 1, 2025 Broaden eligibility criteria for employees and family members, qualifying reasons for leave, and accrual rates​ Accrual: 1 hour for every 30 hours worked. Can carry over up to 40 hours of unused sick leave annually. Eligibility for paid leave begins by the 120th day of employment. Michigan February 21, 2025 The Earned Sick Time Act (ESTA) enhances protections for Michigan workers, making paid sick leave more accessible Accrual: 1 hour for every 30 hours worked. Up to 72 hours leave annually (40 hours paid plus 32 hours unpaid for smaller employers). Leave covers personal or family illness, injury, or health condition, and preventative care. Washington January 1, 2025 Expansion of family member definitions for leave coverage. Comprehensive paid medical leave program remains, including pregnancy and childbirth recovery. Additional leave for pregnancy complications. Job protection during leave periods. Oregon January 1, 2025 Applies to employers with more than 25 employees:  Eligible for up to 12 weeks of paid benefits annually, with an additional 2 weeks for pregnancy-related conditions. Family leave for bonding or caring for a family member Safe leave for domestic violence or harassment, and  Leave for legal processes relating to foster child placement or adoption  Remember that these laws are just the ones from 2025, some states have existing laws that provide PFL for pregnancy disability or care of a family member. They also represent minimum requirements, and some employers may offer more generous leave benefits. Always check with your employer and surrogacy agency about specific policies and protections available to you.  If you have any questions about how these new paid leave laws may impact you as a surrogate or an intended parent, please contact a qualified surrogacy lawyer.  Attorney Ralph Tsong has spent over a decade practicing employment law and understanding the highly technical aspects of family leave law. He now applies that knowledge to help intended parents and surrogates understand how leave law can benefit them. Contact us   today to ensure you're fully informed about and protected under the latest regulations.

As legal professionals in assisted reproductive technology (ART), watching Netflix's "Joy" offered us an eye-opening reminder of how far fertility treatment has come. The film follows the efforts of scientist Robert Edwards (James Norton), physician Patrick Steptoe (Bill Nighy), and the first IVF nurse and embryologist Jean Purdy (Thomasin McKenzie), to develop from scratch IVF which led to the birth of Louise Brown in 1978 – the world's first IVF baby.  In the 1970s, these researchers were essentially creating everything from scratch–from the basic medical equipment they used to, to the technique used to retrieve eggs and fertilize them, to determining the right hormone therapy. The movie details that their efforts were through trial and error with many failed attempts. The story is told from Jean Purdy’s perspective. One of the important roles Jean had was to guide the patient volunteers by administering injections, consoling them and providing moral support when a transfer failed or a pregnancy was lost.  The women who took part in these trials called themselves "Ovum Club" as they volunteered knowing success was unlikely. Indeed, there were years of clinic trials before the first successful pregnancy.  The film spends some time about their motivations. Uniformly, they all dream of having a baby, and even the slight chance that IVF offers is enough to give them hope. Today's fertility patients have a very different experience. While IVF still can't guarantee a baby, patients now have much more information to help them make decisions about their treatment and better chances for success. Shifting Social and Legal Landscapes One of the surprising aspects of "Joy" is the opposition these IVF pioneers faced from the media, medical institutions, and even fellow scientists. Jean feels deeply ostracized from her family and her church, and her research is compared to recently legalized but still scandalous procedure of abortion.  Edwards and Steptoe operate on a shoe-string budget, unable to secure grants, and are portrayed as mad scientists in the media, with Edwards agreeing to a television debate against Nobel Prize winner James Watson (of DNA double-helix fame) in hopes of changing minds but finding that the minds of the audience are already made up. The women of “Ovum Club” had to remain secretive of their involvement for their own protection, fearing judgment and condemnation.  The film reminds us that many medical breakthroughs we now consider routine once faced intense social resistance and moral condemnation. The film ends by noting that over 12 million IVF babies have been born worldwide – a testament to the vision of Edwards, Steptoe, and Purdy. Today's fertility treatment continues to advance, with new technologies and techniques regularly emerging. Today's ART practices now follow written guidelines issued by the professional organization ASRM , and in third party reproduction, many surrogacy agencies and lawyers are guided by ASRM and other ethical organizations, SEEDS , and AAAA . Nevertheless, we see today that the right to pursue fertility treatment could be threatened in the future by new embryonic personhood laws  or regulations on IVF like those tried in Italy .  A Personal Note While watching "Joy," we were struck by how the core mission of fertility treatment remains unchanged: helping people fulfill their dreams of building families. This film captures both the scientific breakthrough and the deeply personal aspects of fertility treatment. When we see Jean take the Ovum Club on a retreat or console a patient who has a miscarriage or can no longer continue with treatment after aging out of eligibility, we are reminded of the role agencies and mental health professionals play in third party reproduction, whether it is boosting the morale of surrogates with retreats and gatherings, or comforting their intended parents and surrogates in the event of fetal loss.  The film also beautifully portrays the dedication of medical professionals who commit themselves to helping make parenthood possible. For those considering fertility treatment, watching "Joy" can help put modern procedures into perspective. While today's methods are far more advanced, the film reminds us that behind every medical advancement are real people - both the professionals pushing boundaries and hopeful volunteers. It is a tough business, one where some clients experience loss, and others joy, but the joy, or the hope of joy, that motivates us to keep going.  Joy  is currently streaming on Netflix. At just under two hours, it’s a compelling watch for anyone interested in the groundbreaking story behind the world's first test-tube baby. Tsong Law Group is dedicated to guiding you through the legal aspects of assisted reproductive technology (ART). Inspired by the advancements highlighted in Netflix's "Joy,"  we are here to support you in building your family dreams while addressing the changing legal landscape. Contact us today  to discuss how we can assist with your fertility journey.

At first blush, the women married to service members, or even service members themselves may look like ideal surrogacy candidates. Information on the internet suggests active duty military insurance, Tricare, is surrogacy friendly insurance. This information is misleading, and it is our hope to correct this.     We interviewed Jennifer White, agency owner of Bright Future Families, co-host of the podcast I Want to Put a Baby in You , and military wife of 25 years, who is an expert in interpreting Tricare policies when it comes to surrogacy.  Q: Can you tell us about your background and expertise in military healthcare and surrogacy?   A: I am married to an active-duty military member for 25 years, so I've personally experienced the Tricare system extensively. I worked for third-party collections on a military base, which gave me insight into how reimbursements are handled. I also run a surrogacy matching program and have managed many cases involving military families.  Q: What are the main concerns about using Tricare for surrogacy arrangements?   A: The biggest issue is Tricare's ambiguous language regarding reimbursement. Their policy states they have the right to "reasonable reimbursement," but there's no definition of what's reasonable, and there's no time frame specified for how long they have to seek reimbursement. For surrogates, this creates a huge risk because the medical bills are in their name.  Q: So a surrogate could be liable for costs years after the surrogacy?   A: Exactly. I've seen cases where Tricare has come back after people many years later. An important perspective I gained when my husband retired was that they held his final month's pay pending an audit of all 25 years of his service. So theoretically, a young surrogate could go through an entire military career, and during retirement processing, Tricare could come back and say she owes money from that surrogacy.  Q: What does it mean when Tricare says they "pay second" for services?   A: By law, Tricare must always be the secondary payer when multiple insurances are involved. So, if you have another policy, like an ACA policy through the exchange, that policy must be primary, and Tricare would be secondary.  Q: Can active-duty service members serve as surrogates?   A: This is limited. Only Air Force and Space Force members can act as surrogates - it's prohibited in the Army, Navy, and Marine Corps under the UCMJ. Even for those who can, there are administrative requirements:  They need commander approval  Local JAG must approve  They must stay on Tricare Prime  They need special arrangements for off-base care  Q: How does deployment affect military surrogates?   A: For active-duty surrogates, there's no guarantee against deployment until pregnancy is confirmed. You could complete all medical screening and legal work, but until there's a confirmed pregnancy, the service member could still receive deployment orders. Once pregnant, they become non-deployable.  Q: Are there any circumstances where using Tricare for surrogacy is acceptable?   A: There is one exception: when both the surrogate and intended parents have Tricare coverage. In this specific scenario, there is a carve-out in Tricare's policies that makes it acceptable.  Q: What do you recommend as best practices for surrogates who have Tricare?   A: The best practice is to go into it with eyes wide open and know that you're going to need another policy to act as primary insurance. This could be an ACA policy or specialized surrogacy insurance. It would not be wise to depend on or lean on Tricare as your coverage.  Q: Why are military spouses often considered good candidates for surrogacy?   A: Military families typically have incredible support structures around them, even without nearby family. However, it's important to note that the old perception that they're "less expensive" because of Tricare insurance is problematic and risky. While military spouses often make wonderful surrogates due to their strong community connections and support systems, the insurance aspect should not be a factor in the decision.  Q: Any final thoughts about Tricare and surrogacy?   A: It's really quite straightforward: don't use Tricare as primary insurance for surrogacy. When nobody can tell you what "reasonable reimbursement" means, and there's no time limit on when they can seek that reimbursement, the risk is simply too high for any military family to take on.    Conclusion:  Navigating military surrogacy and Tricare coverage isn't just complicated – it can be potentially risky. The key takeaway from this discussion is clear: Tricare should not be relied upon for surrogacy arrangements.  The complete lack of a statute of limitation for reimbursement claims, the undefined "reasonable reimbursement" standards, compared to the short duration of an escrow account remaining open mean that surrogates could be responsible for unpaid medical bills. The only exception is when both intended parents and surrogate are military families with Tricare coverage.   If you don’t know if your surrogate’s insurance policy covers surrogacy, consulting with a licensed insurance broker and a surrogacy lawyer is a good place to start.  As Fellows of the Academy of Adoption & Assisted Reproduction Attorneys (AAAA) and the Academy of California Adoption-ART Lawyers (ACAL), Tsong Law Group brings extensive expertise to the practice of surrogacy law. Our award-winning lawyers are licensed in California, New York, Illinois, Washington, Oklahoma, and Arizona.  Contact us now.

Released on October 8, 2024, a new book called Save Money on Surrogacy: How to Save $100,000+ on Surrogacy in the United States   by Yifat Shaltiel, Esq. shares surrogacy industry secrets and hacks to make your surrogacy journey more affordable. Yifat Shaltiel, a surrogacy lawyer and agency owner of Surrogate Steps, wrote her book to act as an informational guide to help others grow their families while saving as much money as possible so that more families can access surrogacy and advanced reproductive technology.  Book Review: Yifat Shaltiel’s book is a roadmap to navigate a surrogacy journey  without breaking the bank. Previous guides we have seen  focus on the basic steps of the surrogacy journey, whereas this book shares how to save money at each step. Shaltiel does an incredible job of blending legal expertise with practical advice, making it a valuable resource for anyone considering surrogacy to grow their family.  The book is especially helpful in breaking down the many ways a surrogacy journey can differ. She answers a common question “how much is a surrogacy journey” by emphasizing that there are many factors that can impact cost. For instance, she explains the option of paying for an agency’s matching services or going without one to save costs. The pros and cons are laid out clearly: while skipping an agency can save money, it also means you’re responsible for more of the planning, which takes time and effort. The same goes for fertility clinics—Shaltiel offers excellent advice on what to look for and how to verify statistics, which can make a big difference in both costs and results.    Surrogates are compensated a base amount on top of out of pocket fees, lost wages due to traveling for medical appointments, and possibly travel costs if they have to fly to attend appointments. Shaltiel shares that regardless of where IPs are located, the location of the surrogate affects the total cost of the surrogacy journey. It is helpful to understand which states have higher surrogate base compensation when you are in the process of working with an agency or proceeding with an independent journey to select a surrogate. Base compensation can vary significantly between states but it is not always determined by cost of living. This chapter in the book can help IPs narrow down the states when they are searching for a surrogate match.  Some journeys can be altruistic where the surrogate is not getting compensated by the intended parents (IPs). The total cost of a surrogacy journey can decrease significantly if the surrogate is not being compensated, like a family member volunteering to be a surrogate. An altruistic surrogacy journey will significantly reduce the costs since there is no base compensation.  Another important area the book covers is health insurance options for IPs if their surrogate does not have surrogacy-friendly insurance. Insurance is important to cover any medical costs or unexpected complications. She compares multiple scenarios with different insurance options so that readers can decide what is best for their situation.  Real-life experiences, like those shared by a couple who had two successful surrogacy journeys with Shaltiel’s agency Surrogate Steps , show how Shaltiel’s recommendations worked for them. They were able to cut costs in ways they had not expected, which makes this book a must-read for anyone considering surrogacy and who is looking for helpful tips affording the process. Save Money on Surrogacy is filled with insider knowledge and advice that can make the difference between a costly journey and one that is more affordable and manageable. Conclusion:   These are just a few key points that make this guide stand out but Save Money on Surrogacy  has many more points to reveal to the reader. Shaltiel has taken her experience and personal journey and transformed it into a guide that offers practical, money-saving tips for every step of the process.  For further reading on ways to save money on your surrogacy journey, check out our articles on Seedcoach, our financial coaching program, our blog on surrogacy grants , and using employee benefits  like legal insurance  for your IVF journey. We at Tsong Law Group are here to assist you with the legal needs of your surrogacy journey. Our surrogacy attorneys, licensed in California, Washington, New York, Arizona, Illinois, and Oklahoma are ready to support you every step of the way. Contact us now to get started.

The 2024 presidential election was a pivotal event for the U.S., with former President Donald J. Trump winning back the White House as the 47th President and likely also gaining control of Congress with a conservative majority in the Supreme Court. Trump’s administration is likely to result in many changes to the United States at all levels.  We will focus only on the changes we expect in key areas like healthcare, immigration, and reproductive rights and IVF, all of which can potentially affect intended parents in their surrogacy or fertility journeys.  Here are some changes that the Trump administration may bring to the American legal system.  Healthcare: In the world of surrogacy, the Affordable Care Act (“ACA”) , which passed in 2010, has been helpful for intended parents and surrogates as open enrollment has allowed intended parents to choose surrogacy friendly policies for their surrogates, while the ACA also requires insurers to cover preexisting conditions, which include pregnancy.  The Trump administration has not stated it will repeal ACA or coverage for preexisting conditions, one of the most popular features of the ACA. However, the campaign sought to “offer more choices” by allowing insurers to create “risk pools,” which lets them raise insurance premiums for groups deemed risky. Different risk pools would likely include surrogates or pregnant women, potentially causing a sharp increase in insurance premiums for pregnant surrogates. Some surrogates might lose access to affordable insurance coverage. Should this change happen, which we rate as likely, the intended parents will likely face higher insurance costs for surrogates who do not have surrogacy friendly insurance.  Immigration: One of the biggest promises of the Trump campaign has been cracking down on immigration. For international intended parents, Trump threatens to issue an executive order on day 1 which will order agencies to deny citizenship to babies born in the US if no parent has a green card or is a citizen. Some international intended parents Trump previously made this threat during his first administration. In our opinion, while it is likely to occur, it is not likely to survive a court challenge. The Supreme Court ruled in United States v. Wong Kim Ark   back in 1898 that birth right citizenship applied to children born in the United States and an act of Congress could not prohibit a child born by foreigners in the US from becoming a citizen. An executive order by Trump would have less authority than an act of Congress, so we rate it is as unlikely to have an impact. Furthermore, Trump campaigned on mass deportations of undocumented immigrants and removing temporary status from some immigrants. This is not likely to affect intended parents, but intended parents should know the immigration status of their surrogates. Intended parents should not choose surrogates who do not have legal status in the United States, or who may have tenuous status (asylum), and definitely avoid surrogates who have only temporary status or promise to come to the US to give birth.  LGBTQ Parentage: Same-sex couples considering surrogacy may worry what impact a Trump administration or Project 2025 will have on their journey. While protections in areas of employment and education are likely targets, it is less clear what will happen with respect to parentage for LGBTQ couples.  It is advisable to secure extra legal documentation to recognize parental rights and not rely on only a birth certificate. For LGBTQ parents, obtaining a judgment or confirmatory adoption can ensure their rights as parents will survive future laws or decisions. In surrogacy journeys, this is normally done, but in most gamete donation cases, there is no judgment. Talk to your lawyer about if you are an LGBTQ parent without a parentage judgment or adoption order. IVF and Embryo Status: During his campaign, Trump offered to make IVF free to Americans with little detail on who would qualify, how it would be paid, or what services would be covered. At this point, this does not appear likely to be implemented. Earlier this year, Congress introduced a bill to establish a federal “Right to IVF,” which would protect individuals’ rights to decide disposition of their genetic material, but it failed to reach a vote in the Senate. With both the legislative and executive branches likely controlled by the Republican party, this bill has no hope of advancing. On the other hand, conservative groups who supported Trump such as the Heritage Foundation, support more regulations on the IVF industry and view the destruction of embryos as incompatible with their pro-life beliefs. As Trump has promised not to sign a federal abortion ban, changes may occur mostly at the state level, as courts interpret laws that define life beginning at conception with no exception for IVF.  Intended parents might wish to reconsider where they store their embryos, potentially moving embryos to states that do not have laws that treat embryos as persons.  Conclusion: In conclusion, this election will have many consequences, but the consequences for those pursuing third party reproductive journeys will not be immediate for most. A Trump executive order on birthright citizenship appears to be the most likely to have an immediate impact but it is also likely to be suspended while it is challenged in court. We will have specific advice for international intended parents if it is not immediately suspended.  If you are considering surrogacy as intended parents , or a potential surrogate , consulting with a surrogacy lawyer  is a good place to start. Especially in light of these potential new policies and a shift in leadership, the parties need an attorney who is resourceful and well-versed in the law. As Fellows of the Academy of Adoption & Assisted Reproduction Attorneys (AAAA) and the Academy of California Adoption-ART Lawyers (ACAL), Tsong Law Group brings extensive expertise to the practice of surrogacy law. Our award-winning lawyers are licensed in California, New York, Illinois, Washington, Oklahoma, and Arizona. For a free consultation in ART law, contact us now .

In October 2024, Italy made international headlines by passing one of the strictest surrogacy laws in the Western world. This controversial law not only bans surrogacy within Italy but also prohibits Italians from seeking surrogacy abroad. It classifies surrogacy as a universal crime that transcends borders, equating it with serious offenses like terrorism or genocide. The broad scope of this law extends beyond surrogates and intended parents, affecting Italian citizens employed as doctors, nurses, or in other roles related to surrogacy at foreign clinics. The creation and implementation of this law sparked heated debates and concerns across Italy and abroad, particularly within the LGBTQ+ community, reproductive rights advocates, and parts of the Italian medical and legal community.  Under this new law, Italian citizens involved in surrogacy abroad could face severe penalties, including up to two years in prison and heavy fines. Thelaw aims to discourage surrogacy entirely, believing that it exploits and commodifies the female’s bodies. However, many critics argue that the law is not driven by medical or ethical concerns, but rather is a political power move done by Prime Minister Giorgia Meloni to please her supporters and the conservative political base.   We sat down with German and Italian lawyer   Alexander Schuster  to find out more about the law. Schuster first studied surrogacy as an academic when Italy’s 2004 law was enacted, and his professional experience with surrogacy grew under its enforcement. The 2004 Law on Assisted Reproductive Techniques takes a very restrictive approach: using the term "procreation" rather than "human reproduction". It banned donor insemination, a restriction that was later declared unconstitutional in 2014. It also required  women to only transfer fresh embryos , but this was also found unconstitutional in 2009.  It also banned any form of surrogacy, including uncompensated surrogacy, and makes it a crime punishable by up to 2 years in prison and a fine of up to 1 million euros.   Why was this law passed?   Until 2004, there was no legal framework for medically assisted reproduction. The center-right government then restricted access to heterosexual couple, married or unmarried, of reproductive age with fertility issues, excluding single individuals, homosexual couples, and donor fertilization. The law also prohibited genetic testing and screening and cryopreservation, two restrictions that were later declared unconstitutional. Advertising, facilitating surrogacy, and commercializing gametes and embryos are declared crimes, though convictions are rare. Convictions for these crimes have essentially never occurred, and the four cases that have made it to the Supreme Court on surrogacy carried out abroad have all been overturned and the couples acquitted. In order to strengthen the criminal prohibition, the Italian Parliament has recently passed a law that extends the crime of surrogacy so that it applies to any Italian citizen, even if the conduct is carried out entirely abroad. So what we see now is actually the extension of the prior 2004 law, by a new center-right government.    Who exactly is covered by the new law?  Does it affect people living outside of Italy?   It applies to any Italian citizen, regardless of domicile. It applies to all citizens who advertise, organize and carry out the surrogacy. This includes not only the intended parents and the surrogate, but also any other professional involved, such as a facilitator who holds Italian citizenship, or even if a US judge holds Italian citizenship and approves a surrogacy agreement. What happens to surrogacy journeys which were already completed legally?   Criminal law cannot be applied retroactively. Once the child is born and the agreement is fully fulfilled, the IPs and everyone else are safe.  What is happening to Italian same sex couples who used donors or surrogates?    The law is drafted in a neutral way, so that gender and sexual orientation do not play a role. However, given the negative attitude of the Italian government towards homosexual couples, their main target, they face the highest risks. A birth certificate with a mother and a father doesn't trigger an investigation in most cases. Exceptions would be a woman with an age incompatible with pregnancy or a notice from an Italian consulate that there is high suspicion (which occurs for travel and birth in Ukraine). We will see how the authorities react when they receive a birth certificate with two fathers.  What happens to surrogacy journeys abroad that are in progress? What should these intended parents do?    The bill that was passed does not make any transitional provisions. When it comes to criminal law, caution is advised. There is a risk of prosecution if a child is born after the law comes into force and the birth certificate is presented to Italian registries. I expect that the law will be enforced around the last ten days of November. There are clearly many arguments against applying it to cases where the pregnancy was already underway, but the risk of criminal proceedings remains.   How will the government know if a child born abroad is born to a surrogate?   This is a good question. Italy cannot rely on the cooperation from countries where surrogacy is not illegal. Unless the IPs make some mistake, Italy may not be able to provide evidence of the "crime" and the burden of proof is clearly on the prosecutor. However, we will have to see what happens. In the first period of implementation, I fear that some conservative judges might find and punish on the basis of probability rather than the proper standard of "probability beyond reasonable doubt.” And this approach would affect gay male couples the most.  Are there any other important things should we know about the law?   In the last 20 years, parts of the 2004 law have been struck down several times by the Constitutional Court and brought into line with fundamental rights. There are strong arguments to challenge the constitutionality of extraterritorial jurisdiction over a minor offense by Italian standards (imprisonment cannot exceed two years unless there are exceptional aggravating circumstances). But Parliament also appoints one-third of the Court's judges, and this is a highly divisive issue.  I do not expect the law to have a de facto impact on Italians living abroad, but I do expect the law to plunge Italy into a state of uncertainty, if not chaos, over the next five years. Lawyers who used to assist intended parents will have to assess the risk of their own prosecution. In about five years, we will see if this extraterritorial crime is unconstitutional and how it will be enforced. Until then, many potential families will be prevented not only from realizing their dream, but also from remedying Italy's plummeting birth rate.  Conclusion: Italy’s new surrogacy ban has provoked strong reactions both domestically and internationally, and may be a model for other countries who seek to prohibit surrogacy abroad. By extending surrogacy prohibitions beyond Italy’s borders, it threatens those who are in the middle of their surrogacy journeys, as well as for surrogacy agents, and medical and legal professionals who have Italian citizenship. Mr. Schuster indicates the courts might stop the law as they have in the past, but that is cold comfort for the intended parents pursuing surrogacy who have to risk fines and imprisonment.  For Italian intended parents considering surrogacy, it’s essential to consult a knowledgeable lawyer who can provide guidance on Italy’s new surrogacy law.  At Tsong Law Group, we are here to support our international clients every step of the way, working closely with their international counsel to follow their advice and help families make informed decisions as they pursue their dreams of parenthood. Our surrogacy attorneys, licensed in California, Washington, New York, Arizona, Illinois, and Oklahoma, are ready to assist you through every stage of the journey. Contact us today.