As an HR leader, you want to provide benefits that meet all of your employees' needs. But offering family-forming benefits that cover every step involved is more complicated than you might expect. For example, fertility law is a lesser-known — but crucial — part of several family-forming journeys. And without easy access to these resources, family forming can be stressful, time consuming, and even legally risky for your employees. Here's what you need to know about why legal resources are so important and how to help your employees access them.
Legal considerations of donor-assisted reproduction
When using egg, sperm, or embryo donors, intended parents need an attorney to create contracts regarding the legal implications around parental rights and obligations. Egg and sperm banks and IVF clinics will have donors sign release forms and manage the legality of the agreement, but if someone uses a donor they already know, an attorney will be needed to draft a contract that addresses issues like parental rights to the child, compensation, financial responsibilities, and other agreements. The attorney will also help the intended parents establish legal parentage and determine the best options for protecting both parental relationships.
Attorneys don’t just support legal contracts — they may also be involved in confirming medical requirements are met, such as FDA-mandated testing for egg and sperm donors.
“The medical side can often be more confusing than the legal side,” said Phoebe Sadler, fertility law attorney at Carrot partner International Fertility Law Group Inc. “Coordinating health insurance and medical requirements can be a lot.” A lawyer needs to be involved in the medical side to make sure requirements are met.
Gestational carrier (surrogacy) legal journeys
GC journeys (commonly known as surrogacy) involve similar legal processes to other donor-assisted reproduction journeys with some additional steps. Attorneys help create legal contracts and manage communication between all parties including the intended parents, GC, and egg donor. Since laws regarding GCs vary around the U.S., attorneys also need to make sure all contracts abide by state regulations. An attorney puts together a GC contract which is then reviewed by the intended parents, the GC, and, if applicable, the GC’s partner. It should cover requirements like medical and psychological evaluations and availability of medical history. Intended parents will also need to pay for an attorney to represent the GC in the contract creation process, which will include determining the GC’s compensation and expenses such as wage loss, doctor visits, and if the intended parents have a desired lifestyle for the person carrying the pregnancy.
While skipping the legal side may seem cheaper, it also delays the process and opens up intended parents to serious risks.
“There are many states that require attorneys, and it’s crucial that people speak to one,” said International Fertility Law Group Inc. attorney Molly O’Brien. “If they don’t, there’s a chance they’ll never get started or will try to do GC journey for cheaper and will end up waiting on lists for months or won’t get matched with appropriate donors.”
Adoption laws in the United States
There are multiple paths for adoption in the U.S. legal system, and all interact differently with attorneys, depending on the type of adoption and state it’s occurring in. In an independent adoption, prospective adoptive parents work closely with an attorney specializing in adoption. This path may be the best option for step-parent, second-parent, relative, or other adoptions with an identified child. In some states, adoption attorneys can lead the legal process, including locating potential birth parents, but they are not legally allowed to identify birth parents for clients in other states. When adopting through an agency, prospective adoptive parents work with an attorney to finalize their adoption. Adoptive agencies do not assign attorneys to prospective parents, though they may provide a list of options.
To complicate matters further, each state has its own system for private adoptions and adoptions from foster care. Every case is unique, and attorneys need to be aware of local standards and sometimes other areas' standards to provide accurate support for their clients. The Interstate Compact on the Placement of Children (ICPC) ensures that children placed across state lines through adoption or foster care are protected and supported. An attorney's understanding of ICPC is what keeps children safe in out-of-state placements.
Legal support for fertility helps reduce stress — and avoid serious obstacles
Family-forming journeys are often complicated and stressful, especially when they involve legal processes. Taking care of these details can eat up a lot of time, including at work: 74% of employees pursuing family forming admit to researching their options during the workday. And drops in productivity because of personal distractions add up for employers. Overall, research suggests that presenteeism costs employers 10 times more than absenteeism.
It’s also possible to get taken advantage of or lost in the complicated legal details of a family-forming journey. For example, some states including Michigan have prohibited the use of GC services completely. In 2021, a couple in Michigan used GC services to have twins. But when their twins were born, the couple was not declared their legal parents because the intended mother hadn’t carried the pregnancy. The couple is now going through background checks, home studies, and other steps to adopt their children.
You can help set your employees on the most successful path by including legal resources in your fertility benefits. For example, Carrot’s network includes over 1,700 agencies and attorneys globally who support all kinds of family-forming journeys. Finding the right legal support from the start is key to preventing unnecessary costs and making complicated family-forming journeys easier.
If you’re ready to learn more about how Carrot can support your employees every step of the way, get in touch with us.