Surrogacy Drama: My American Friend Who Got Stuck In Mexico

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It’s not uncommon to read of intended parents in a surrogacy arrangement getting stuck in a foreign country. Unfortunately, in many cases, new parents are unable to return home with their baby, due to some legal snafu. But despite focusing my professional life in this area, it rarely happens to someone I already know. And by rare, I mean it has never happened before. But there is a first for everything. And fortunately, after some shocking twists and turns, my friend Carolin Topelson’s story has a happy ending.

For those of you that are the podcast-listening types, we have a great in-depth interview with Topelson on I Want To Put A Baby In You. And now that states are opening up, and you might actually have somewhere to drive to while listening to podcasts, it’s a great time to check it out. Topelson’s story is a cautionary tale, as it highlights some of the stark contracts between US surrogacy law and surrogacy law in other countries.

What Happened? As with most surrogacy stories, there was a long build up involving attempts to conceive, leading to the medical advice that a gestational surrogate was likely the only path forward for a genetically related child. Topelson had been receiving her fertility care in the United States, in her home state of Colorado. However, the medical advice that surrogacy was the next step, and a deep dive into researching the costs and processes (and the six-figure US price tag!), made Topelson consider other options.

Topelson, having been born in Mexico — and holding dual citizenship — learned that she had family connections to a reproductive endocrinologist (aka fertility doctor) in Mexico City. Given that IVF is much more affordable below the border, along with hiring a surrogate to carry an embryo to term, she traveled there to do her research. After trying again to conceive on her own, she then went the route of gestational surrogacy in Mexico.

Serious Surrogacy Contrast Between The United States And Mexico.

Topelson explained that unlike in the United States where you generally meet the gestational surrogacy before matching, she did not meet her surrogate until the woman had already started medication for the transfer of Topelson’s embryo into her body, during an appointment signing legal documents before a Mexican magistrate. While a relationship is encouraged in the United States, as many intended parents want to attend the appointments and be part of the pregnancy, Topelson was specifically advised not to give her personal information to the surrogate or contact her during the pregnancy. She was advised that it was for her own protection to avoid the surrogate attempting to blackmail her. All updates were given to her through her fertility doctor and his team.

A Mid-Pregnancy Surprise.

Topelson’s story is destined to  be made into a movie, and, like any good story, involved a few unexpected twists. Shortly after the embryo transfer, like J-Lo in the 2010 rom com The Back-up Plan, Topelson met the man she would eventually marry. The embryo transfer was successful and she was thrilled to learn that she was less than nine months away from becoming a parent. Her new man was supportive. A few months into the surrogacy pregnancy, Topelson, who still tracked her cycle out of habit from years of attempted conception, noticed she was late. Sure enough — surprise — she was pregnant! When she approached her doctor with the news, he responded, “Well, I did tell you there was a 5% chance of you conceiving on your own!”

Things Get Scary.

Topelson was traveling back and forth between Colorado and Mexico City during the pregnancies, and traveled back to Mexico within plenty of time of the surrogacy birth to be there when her baby was born. Unlike the United States, where the intended parents are frequently in the delivery room to see the moment their baby is born and there to care for the baby, Topelson was not permitted in the delivery room. As far as the hospital staff knew, the surrogate was giving birth to her own child. The surrogate told the staff that she had a cold and was not feeling well and would prefer that the hospital keep the newborn in the nursery, so as not to expose him. Her “family relative” (Topelson) would be coming to feed and care for the baby. Sneaky! So Topelson first got to see her son in the hospital nursery under the guise of a helpful family member. Topelson did note that this is not the case for all Mexican hospitals. In some, the surrogacy arrangement can be openly known without problems.

The surrogacy agency then arranged for a magistrate to come to Topelson’s temporary residence for her to sign documents. She admits that despite being a thorough and Type A attorney, she did not read the documents presented to her. She trusted that the agency had everything under control. (Not to mention that  she was caring for a newborn and pregnant herself.) A few days later, she received a birth certificate for her son, showing her as the mother.

Topelson wisely made appointments with the US consulate for genetic testing, and for the processing of her application for her son’s US passport. Here is where things took a turn. The DNA tests showed that Topelson was, indeed, the genetic parent of her son – with 99.92% certainty. However, Topelson also had to prove that she had the legal status of a parent to the child. She presented the birth certificate and paperwork she had collected. She was informed by the consulate — to her shock — that they believed there had been fraud involved in obtaining the documents, and that they would not be processing a passport for her son. WHAT?!

Despite her pleas, the consulate did not provide an explanation. It took days before she was able to determine that the consulate believed the agency had fraudulently obtained the birth certificate with her name as the mother. Mexico, having no set system for surrogacy, did not provide a clear process for these matters. Ultimately, the consulate communicated that she would either need to 1) have a new birth certificate showing the surrogate as the mother and the surrogate give permission for the child to travel with her to the United States; or 2) obtain a Mexican court order that she was the legal parent to her child. What a nightmare! Of course, the first option would be moving backward. Why would she fight to get a new birth certificate to name the surrogate as the mother, when Topelson was herself the actual mother. As for the second option, consult after consult with attorneys made it clear that this was not a thing that was usually done, and there was no certain path for making it happen.

In the meantime, Topelson was stuck in Mexico City for months with a newborn, while her own pregnancy was progressing and inching toward baby number two.

A Plea For Help.

Topelson’s answer came after a late night plea on social media. While she had not been sharing her private struggles with the world at large, she decided that it was time to put it out there. She posted her story on Facebook, and within hours, was getting responses for offers to help. Thanks to a connection within the US Department of State, Topelson had a temporary passport issued for her son within the week.

Topelson returned home with her son, but laughably, she returned back to Mexico a few months later for a couple days for her wedding (while pregnant). Eventually, she also received the Mexican court order confirming her parental status.

Today, the legal issues have been sorted, and Topelson has a very traditional looking family: mother, father, one son, one daughter. Of course, her son and daughter are only about six months apart in age, but whatever.

What’s the lesson when you’re going through a surrogacy arrangement? Well, sometimes things seem pretty bleak before they are suddenly a lot better. And of course, be ready to have some curve balls thrown your way. You might also want to put your congressperson’s office phone number in your phone. You know, just in case.

Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com. 

Morgan Stanley Forgot To Add Opposite Clause To Flat, Transparent Fee Product

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There’s A Way If There’s The Will  

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What irritates me (and we agree that there are many, many things that can provoke a rant) is when people say that something can’t be done and offer no alternatives. Here’s Exhibit A:

The president of the Law School Admissions Council has pooh-poohed the idea of putting the bar examination online this year. She says that it’s not impossible but that it is a “really big lift for states” as they are not testing organizations. Duh. Tell us something we don’t already know.

So, what are alternatives? The clock is ticking. What would she suggest instead? No one disputes that states are not testing organizations, so what should be done? Give law school graduates a pass? That’s not going to happen, at least not here in California.

Don’t just tell us what can’t be done. Tell us what can be done and how to do it. Offer alternatives, suggestions, something. Don’t just be “yes, but,” be “yes, and.” This attitude is like throwing a bomb in the middle of a crowded city square (not right now, though) and then cavalierly walking away, not looking back and not at all concerned about the damage done. As we all know from painful experience, it’s so easy to criticize, to reject, but much harder to find solutions or, at least, ideas that may lead to solutions.

Issues abound: testing security, how to ferret out cheaters (hmm … what about ethics here?), issues with leveling the testing field for those who need reasonable accommodations under the ADA, what if your kid interrupts you while you in the midst of the exam, and a thousand other “what ifs” come to mind. Advice from those of us who have had bar snafus of all varieties: when you’re going through hell, just keep going. What other option is there?

Let’s assume this fact pattern: the July Bar is not going to happen. Here in California, we have literally thousands of graduates waiting to take the bar exam. How, testing mavens, do we make that work? I doubt if the California Supreme Court wants to take “it can’t be done” for an acceptable answer. Indiana will conduct a remote bar exam and it will be one day only at the end of July, but the scores will only be good for Indiana.

We all know it’s the easiest thing in the world to criticize (a “benchslap” just as one example, and I’m not saying that it’s the court’s job to offer constructive criticism), but it would be helpful if people would offer guidance in this climate of “who’s on first, what’s on second” rather than just doubting. Please, test mavens, help figure out the best way to have the bar exam in what has been and will continue to be a very difficult year for 2020 graduates. None of this is their fault.

Florida is going ahead with the July bar, complete with masks and thermometers. Kansas, Minnesota, Washington, and Wyoming also are conducting July bar exams. When is it safe to go back to work, to go to court, to take a bar exam? Lives v. licenses? Lives v. cases? Lives v. clients? As just one example, the Los Angeles Superior Court now requires that all judicial officers, be it on the bench or in public areas inside the courthouses, wear face masks. This also applies to court employees. I would think other courts will do likewise, at least those courts that believe that face masks make a difference.

I am amazed by lawyers who don’t get that the legal world is undergoing a seismic shift, that for most matters, things will not be the same, and that we cling to old ways of doing things in the pitiful hope that things will return to the “old normal” once the lockdowns are lifted. Is it inertia or fear? It can’t be FOMO (fear of missing out) because if that were the case, we lawyers would be all for change as, among other things, a way to provide more and better services to clients. I think it’s a combination of inertia and fear, fear of change and yet too afraid to do anything about it. The status quo is now kaput.

One old lady lawyer commented that lawyers need time to deliberate, time to think, to ponder (she was an appellate lawyer so there’s time to ponder), and so on. And that’s true. But that’s not true for every aspect of the law, where quick answers are often needed to immediate and pressing problems that clients present. Not every legal question has the luxury of time to answer (“the vendor needs an answer now,” “we just got subpoenaed, what do we do,” and so on), and the hope is that the answers are more often right than not.

Marc Andreessen says that it’s “time to build.” While he doesn’t specifically mention our profession, it’s true for us as well. I don’t think anyone is saying that we need to toss out everything and everyone to date (although some might disagree about “everyone”), but we do need to build upon what we do have and make it better and more client friendly and client-focused. We have opportunities, but do we have the will?

Jill Switzer has been an active member of the State Bar of California for over 40 years. She remembers practicing law in a kinder, gentler time. She’s had a diverse legal career, including stints as a deputy district attorney, a solo practice, and several senior in-house gigs. She now mediates full-time, which gives her the opportunity to see dinosaurs, millennials, and those in-between interact — it’s not always civil. You can reach her by email at oldladylawyer@gmail.com.

Jared Kushner Declares No Plans To Cancel Election. Yet.

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The world’s most famous nepotism hire sure does hope we’ll be able to vote on November 3.

“I’m not sure I can commit one way or the other, but right now that’s the plan,” he told Time Magazine on Tuesday when asked if the pandemic might force a postponement of the election.

Luckily, the date of the election doesn’t require Jared Kushner, or for that matter President Trump, to “commit one way or the other.” Article II, Section 1 of the Constitution grants Congress that power:

The Congress may determine the Time of chusing the Electors, and the Day on which they shall give their Votes; which Day shall be the same throughout the United States.

In 1845 Congress passed a law fixing federal elections between November 2 and November 8 in every even year, later codifying it in
3 U.S. Code § 1:

The electors of President and Vice President shall be appointed, in each State, on the Tuesday next after the first Monday in November, in every fourth year succeeding every election of a President and Vice President.

So postponing the vote would require Nancy Pelosi’s cooperation, an event somewhat less likely than Donald Trump passing a 1L ConLaw exam. Which is to say, not bloody likely.

And not for nothing, but the Twentieth Amendment is pretty clear that the Trump and Pence’s term ends at noon on January 20, 2021, whether Jared Kushner “commits” to holding an election or not. Or, in the inimitable New York Times style, “Kushner, Law Aside, Doesn’t Rule Out Delaying 2020 Election.”

Having belatedly realized that blithely speculation about extra-legal electoral changes was a bad look, Kushner rushed to clean up his remarks.

Well … sort of.

He issued a statement saying that he was unaware of any “discussions” in the White House about postponing the election. Which is not an admission that the Executive Branch plays no role whatsoever in scheduling the vote, but is as close as you get in 2020.

In summary, due to the White House’s wildly successful coronavirus response, our nation’s nightmare is coming to an end and we should all feel safe getting out for a little shopping and face time with our pals. But also the White House may be forced to postpone the election in this dire emergency. They aren’t discussing it right now, of course, but it remains a possibility. Even though it might run afoul of some “laws.”

Jared Kushner Admits There’s ‘Risk’ in Reopening the Country Too Soon [Time]

Elizabeth Dye (@5DollarFeminist) lives in Baltimore where she writes about law and politics.

Biglaw Chair On What It Takes To Weather The COVID-19 Storm Without Layoffs Or Salary Cuts

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What will Biglaw look like in a post COVID-19 world? That’s the question on everyone’s mind as we, hopefully, move closer to a new normal. In a new interview with Law.com, CEO and chairman of Cooley Joe Conroy breaks down how he sees his firm positioned post pandemic.

The big headline is that Conroy said Cooley has no plans to cut associate salaries or do any layoffs. Conroy said that the firm’s travel and meetings budget — obviously going unused — is providing sufficient cost-savings. But don’t think that Conroy expects no changes in the legal industry. Conroy predicts demand for legal services will be down in a big way because of coronavirus, and that collections will also be down because of the economic conditions:

Our board and I certainly think that we are going to face to reduced demand in 2020. I also think that we’re going to be in an environment where we are going to get lower realization. That’s what happens when economies worsen. That having been said, we haven’t seen it as of yet. We’ve been, with respect to all the metrics that we measure our business, on or over plan. And that has even held up through 11 days this month on cash collections. Trying to figure out what the baseline to plan for is a little TBD. I hope I’m wrong. I don’t think I am. But my guess is that when the book is written on 2020, I will look back and say, “OK, we experienced 10% less demand than we thought we would, 15%, whatever it’s going to be.”

Though these predictions might seem like a downer (though very realistic), Conroy says he is an optimist. His take on the outlook of Cooley certainly reflects that, and he also noted that Cooley is positioned to come out of this in a better position than most:

[A]lthough this is a terrible set of circumstances for all of us and we’ve got to buckle down and do some things differently during this period, we think there will be some law firms that emerge from this circumstance better than others, and we think we’re going to be one of them.

Part of the reason why Conroy believes this is due to the firm’s partnership structure. The firm eschews income partners and Conroy says that means business development is an essential part of the firm’s makeup:

One of the things we’ve always said about our partnership that gives us a higher likelihood of performing well in a down market is we don’t have service partners, we don’t have nonequity partners, and we’ve got business development in the genes of our partners across practices.

Let’s hope plenty of firms are positioned to get through the COVID-19 storm.

headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).

New York Lawyer Who Was ‘Patient Zero’ For COVID-19 Community Spread Speaks Out On His Unlikely Recovery

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(Image via Getty)

I’m thankful that I’m alive. It’s been quite a journey. I just thought I had a cough. Look, I’m a lawyer. I sit at a desk all day. I think at the time we were sort of focusing on individuals who had maybe traveled internationally, something that I had not done. I had certainly not been to China.

— Lawrence Garbuz, the trusts and estates lawyer who became known as New York City’s “patient zero” for coronavirus community spread, in comments given during an interview with Savannah Guthrie on the Today show. Garbuz is recovering well at home, but was intubated and in a medically induced coma for three weeks’ time. “I have absolutely no recollection of anything that transpired until I woke up from the coma,” he said. “So it’s as if three weeks of my life had completely disappeared, and I was asleep for all of it.” Garbuz still doesn’t know how he got sick.

Staci ZaretskyStaci Zaretsky is a senior editor at Above the Law, where she’s worked since 2011. She’d love to hear from you, so please feel free to email her with any tips, questions, comments, or critiques. You can follow her on Twitter or connect with her on LinkedIn.

FCC Quietly Imposes Largest Fine Ever For Shady Local Media Takeover By Right-Wing Sinclair Broadcast Group

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The only time I see local news broadcasts is in a momentary flash when flipping upward through the channels in a hotel room. But somebody’s apparently watching them, with annual local TV station advertising revenue averaging around $20 billion (the local stations tend to do a bit better in election and Olympics years).

And doing its best to grab as many of those ad dollars as possible, while simultaneously ensuring your local television isn’t really all that local, is Sinclair Broadcast Group, Inc. Sinclair owns 191 television stations throughout the United States. If you’ve heard of Sinclair at all, it was probably in the John Oliver segment decrying the way Sinclair makes its supposedly local anchors parrot the exact same conservative talking points instead of doing real journalism.

Trying to fly under the radar is kind of Sinclair’s thing. A couple years ago, Sinclair was set to merge with Tribune Media Company in a $3.9 billion deal. Had Sinclair successfully acquired Tribune, Sinclair would have been in 73 percent of American households. What other company that three-quarters of us have never heard of has been set to sneak into three-quarters of our homes?

The deal didn’t go through though, in the face of a wave of bipartisan criticism that it would have given Sinclair a television broadcasting oligopoly. After the launch of an investigation by the FCC’s Office of Inspector General, the FCC unanimously declining to approve the merger. Of this, Sinclair president and CEO Chris Ripley said in a 2018 statement:

We unequivocally stand by our position that we did not mislead the FCC with respect to the transaction or act in any way other than with complete candor and transparency.

Well, fast forward to May 2020, when the FCC announced a $48 million civil penalty against Sinclair related to its attempted acquisition of Tribune. This is the largest civil penalty ever imposed in the 86-year history of the agency (the previous record was only half that, a $24 million penalty paid by Univision in 2007). Compared to Sinclair’s CEO, FCC chairman Ajit Pai had quite a different take on the Sinclair-Tribune deal, saying in a press release:

Sinclair’s conduct during its attempt to merge with Tribune was completely unacceptable.

The $48 million fine is part of a consent decree Sinclair entered into to resolve three separate ongoing FCC investigations. According to the FCC, the investigation into the proposed Sinclair-Tribune deal found that Sinclair attempted to deceive regulators by selling off stations in markets where it would have controlled multiple outlets (which it would have had to do to avoid antitrust issues) to two companies that actually had deep ties to the family behind Sinclair itself. The second FCC investigation found that 64 Sinclair stations aired sponsored content as news more than 1,400 times without disclosing that these were paid-for segments. Sinclair also shared these segments with several non-Sinclair stations, which aired them hundreds more times without telling viewers that they were sponsored content. To put that in English, Sinclair was airing paid advertisements as news. The third investigation closed out by the consent decree was into “whether the company has met its obligations to negotiate retransmission consent agreements in good faith,” and if you can translate what the FCC means by that into plain English, you’re a better wordsmith than I.

So, basically Sinclair was trying to circumvent the rules meant to keep it from owning a majority of local television media outlets and was hiding how it was doing it. Sinclair was also airing paid content as real news, and it was doing something inexplicable but shady when it was negotiating whatever retransmission consent agreements are. Now, Sinclair has to abide by what the FCC calls “a strict compliance plan” and pay a $48 million penalty.

Still, go back to the first paragraph and review the annual revenue up for grabs in local television media markets. Even pre-attempted Tribune acquisition, Sinclair was already involved in something close to 40 percent of local TV markets throughout the U.S. I think they’ll be fine. And I’m willing to bet this is far from the last we’ll hear from Sinclair Broadcast Group, Inc.

Jonathan Wolf is a litigation associate at a midsize, full-service Minnesota firm. He also teaches as an adjunct writing professor at Mitchell Hamline School of Law, has written for a wide variety of publications, and makes it both his business and his pleasure to be financially and scientifically literate. Any views he expresses are probably pure gold, but are nonetheless solely his own and should not be attributed to any organization with which he is affiliated. He wouldn’t want to share the credit anyway. He can be reached at jon_wolf@hotmail.com.

So-Called Rich Guy Warns Real Americans To Ignore The Other So-Called Rich Guys

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Am Law 50 Firm Slashes Associate Salaries Indefinitely

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It wasn’t that long ago that we were reporting on Perkins Coie’s assurances to associates that salary cuts and layoffs were not in their future. Though the partnership were deferring ~19 percent of their compensation, the firm had no plans for further austerity measures.

But that was last month. A little over a month later (even though it feels like several years ago now), and the firm has changed its tune. Today, in an all-attorney call, the firm announced that pay cuts were coming, beginning in their June paychecks. Non-partner attorneys will see a 15 percent cut, staff making $200,000+ will also have a 15 percent cut, and staff making $125,000-$200,000 will have compensation cut by 10 percent. Below is an internal slide describing the cuts:

Tipsters at the firm describe the cuts as indefinite and that, “Management says they don’t know if it will extend to 2021 or 2022. Won’t answer questions whether temporary or not.”

But, the good news at least, is that the firm is leaving the door open to a “special payment” to make whole top billers. And, as of now, there are no attorney layoffs.

The firm also provided insiders a look at how the austerity measures were impacting the partnership:

We reached out to the firm for comment, but have yet to hear back.

headshotKathryn Rubino is a Senior Editor at Above the Law, and host of The Jabot podcast. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).