What Happens:
Kate Holbrook discovers that her chances of becoming pregnant are drastically reduced. Kate considers adoption, but a misguided social worker convinces her that her chances of being approved as an adoptive parent are limited because she is not married.
Kate learns of the Chaffee Bicknell surrogacy center and is connected with Angie Ostrowski, a gestational surrogate from South Philly. Kate selects a male donor; Kate’s eggs are fertilized, and the embryos are implanted in Angie.
Angie and her common law husband Carl[1], believing that Angie is not pregnant, undertake to defraud Kate. Angie and Carl send Kate an image of a squirrel’s ultrasound and pass it off as Kate’s baby.
Kate meets Rob Ackerman (a former corporate lawyer), and they begin a relationship. Angie buys a prosthetic stomach to continue the fraud, only to find out she is, in fact, pregnant. Angie realizes that the baby is probably not Kate’s and continues the charade.
Carl confronts Angie at Kate’s baby shower and discloses that the baby may be his.
Kate and Angie go to court to determine the maternity of the baby. Rob shows up as quasi legal representation/support for, wait for it, Angie, who is not even contesting the proceeding. For some reason, the judge reads the results of the DNA test in court, and broken-hearted Kate learns she is not the mother.
Angie and Kate meet on the street, Angie goes into labor, Kate gets her to the hospital.
Kate faints at the hospital. Someone performs a pregnancy test on unconscious Kate. Kate wakes up in a hospital bed and her private health information is disclosed in Rob’s presence. She is pregnant with Rob’s baby.
Kate and Rob have a baby. Kate and Angie remain friends.
What Happens Next:
We honestly do not know where to start. There are so many issues here that it could be a random bar exam fact pattern.
Wendy and Jennifer attend a law conference where their partner, Katie Lachter, presents on documenting client relationships and avoiding conflicts of interest.
Rob Ackerman approaches Wendy, Jennifer, and Katie at that evening’s networking event.
Rob tells Katie that her presentation gave him insight on mistakes he made years ago and proceeds to tell them about the time he appeared in court with Angie, but he was really just there for emotional support.
Katie tells Rob she is glad he learned something from the presentation and tries to distract Rob from Wendy and Jen’s shocked expression.
Rob tells them that he and Kate are going to enter into a gestational surrogacy agreement and hope to have another child, but they really are nervous given what happened the last time.
Katie says, “Wendy, did I read something you wrote about New York’s gestational surrogacy laws?” Jen clears her throat and elbows Wendy, who says, “yes, yes I did.” Wendy tells Rob about the required estate planning provisions of the New York law and tells him that if he and Kate have not addressed these issues or have any questions, they should schedule an appointment.
A few weeks later Kate and Rob come in to see Wendy and Jennifer.
Wendy explains that things have changed since Kate last used a gestational surrogate. In addition to the new guidelines that protect all parties and the resulting babies, the New York Child-Parent Security Act (the Act) makes sure that the intended parents attend to some very important estate planning. Under the Act, before the embryos are implanted, Kate and Rob must sign Wills that designate guardians for all children born from the implanted embryo(s). The Wills must also specifically name and authorize an executor to fulfill Kate and Rob’s obligations for the Gestational Surrogacy Agreement (GSA).
“Oh, Blurgh!” shouts Kate, “we never named a guardian for our daughter.” Jen consoles Kate and tells her that she can still name a guardian for her daughter now. Rob asks if they will need to adopt their baby after it is born. Jen explains that under New York law, when a baby is born pursuant to a GSA, the intended parents are the baby’s presumptive parents/natural guardians.
“Great!” shouts Rob, “easy peasy; all we need to do is pick guardians.” “That is a start,” says Wendy. “Your wills should also include trusts to manage the distribution of assets for your children until they reach legal and financial maturity.” “What’s that?” asks Rob, causing Kate to roll her eyes and mouth to Wendy and Jen, “Do you see what I’m dealing with?” Wendy and Jen explain that minors should not receive their inheritance outright, that it is better to appoint a trusted and financially responsible person to act as trustee, and that to avoid conflicts of interest they may want to appoint someone who is not the nominated guardian. “Wow, this parenting thing comes with so much responsibility,” says Rob.
Kate and Rob sign an estate planning engagement agreement with a joint representation clause which specifies that the firm can continue to represent Kate if Rob and Kate split up. Kate and Rob complete their estate planning, they have triplets who they name after Katie, Wendy, and Jen, and they live happily ever after.
Parenting is rewarding and challenging. All parents should have comprehensive estate plans to take care of their children. The rules and regulations governing gestational surrogacy and estate planning are complicated. Knowledgeable counsel can help navigate this often-tricky area. Save the drama for the movies.
[1] Pennsylvania stopped recognizing common law marriages entered into after January 1, 2005.
