What Drives Fertility Attorney Rich Vaughn

Thursday, May 20, 2021

Fertility law attorney Rich Vaughn combined his passion for family formation and founded one of the most successful and best-known law firms in the world focusing on assisted reproductive technology law.

Transcript

Stephen Page: Good day. My name is Stephen Page, and I’m just welcoming you to my podcast, Australian Family and Fertility Law Podcast. My first guest today is Rich Vaughn, who is a dear friend of mine and a colleague and is also practising as one of America’s leading fertility lawyers. You have heard him recently on our webinar about Australian-intended parents going to the United States. Welcome, Rich.

Rich Vaughn: Thank you, Steve. Good to be here.

SP: Now, tell us about how you came to do ART Law or for those who don’t know what that means, that means to do with surrogacy and fertility.

RV: Well, I suppose we should start at the beginning. So on October 24th, 1968, I was born. No, just kidding. I won’t bore you with the full story. [laugh] Yeah, there’s a couple of different starting points, but the most important one, I think, is I went through surrogacy myself with my husband, and we were at the very beginning stages, doing our research, et cetera, and, of course, were advised to speak to a lawyer about what we would need to go through and what we would need to prepare for.

And so we did. We spoke to a lawyer, and I found it incredibly fascinating. I was a lawyer myself at the time. Still am. And I was just really intrigued by what I was hearing about the whole process. So I actually called our lawyer the next day and I said, “What’s it like to practise in this area?” And it was right time, right place. I had been working as in-house Council for a medical device technology company for several years and as most startup companies do, they end up losing their funding.

So they lost their funding for me. I had a good long window of time to look for something new and meaningful. And I thought, “Gosh, what better way to do something meaningful than to help other people build families?” And that was it right there. I was hooked. And it happened to be right time, right place, and he brought me on. And so while I was going through my surrogacy, I was also learning surrogacy law first-hand from both sides of the contract, as they say.

SP: It’s an extraordinary thing, isn’t it, that my journey was the opposite in the sense that I was doing surrogacy law since probably close to before you were born. That’s not much of an exaggeration, but certainly a long time ago and then actually only undertaking my surrogacy journey at the end or the relative end of the process, whereas yours was at the beginning. But it’s a real eye-opener, isn’t it? When you do your own surrogacy journey and then have such delight, says the clinic, saying, “Oh, that’ll be $3,000. Thanks.” [Rich laughs]

And you immediately wonder, “Have I got that on my credit card?” [laughs]

RV: That’s a daily occurrence.

SP: It’s one of those gulp moments isn’t it that you go, “I hope I can afford this. We can afford this. And I hope this is all or worth it.” And your journey, your surrogacy journey, how did your journey go?

RV: Well, it was precisely because of the costs that our journey took a long pause at the beginning, and we basically talked about wanting to have kids together early on in the relationship. And we found out how much it cost, and we knew we needed to save up. So we spent a few years saving up and researching and then finally jumping in several years later. Then we found our way to a lawyer, as I mentioned. Then we found our way to a surrogacy agency and the doctor and eventually in the egg donor agency as well, and started the long process of getting there.

It took about 18, 20 months, actually, for us from start to finish. So it was a good — you know.

SP: Well, it took longer than that because you had to save up. And that’s one of those I think that what you’ve illustrated is what often happens. How many times have I heard it said that surrogacy is only for rich people? Or I’m exploiting poor people? And certainly what I see is that often it’s intended parents relying on the bank of mum and dad or going to the bank to obtain a loan has happened in the past and Australia’s access in the superannuation retirement savings or doing what you did and that’s save, save, save, save.

RV: Yeah, we saved. And we actually took a second mortgage out on the house to get some extra funds and you know, quite… I don’t know, I want to say it dramatically or whatnot, but a friend of mine had passed and I was one of the beneficiaries in his life insurance policy, and that’s actually what gave us the little edge to say, “Hey. Okay. I guess we have some extra money here now.” So it was a little bittersweet, but I always think of him when I think of how we got our whole process started, because it was because of his passing that we were able to create more life. Quite meaningful, very, very special.

SP: And how old are your kids now?

RV: They just crossed the twelve and a half line, so they’re well, on their way to puberty and preteen, everything. They will be 13 in August.

SP: How they grow. But you never forget how they’re created.

RV: Absolutely. It’s part of our story. It’s part of their story. They know that that’s part of their story. They’re proud of it. They understand it for the most part. They’re still trying to figure out the egg donor piece. They still ask questions where I’m like, “Oh, okay. Yeah. You don’t fully understand this yet.” But their understanding grows over time, but it’s definitely part of their story. And we still keep in touch with our surrogate about once or twice a year. We will get an email from her with pictures of her kids.

And we’ll send her an email with pictures of our kids, either at birthdays or the holidays, that kind of thing.

SP: I saw a story in this morning’s Sydney Morning Herald with a with a woman who said that she was conceived through anonymous sperm donation and said that with straight couples, it was something like 90% of the time they didn’t disclose to the child about where the child had come from. Well, that’s not the same with gay couples, is it? There’s going to be disclosure.

RV: Yeah. There’s no avoiding the topic. [laugh] The first couple of years or so, they have zero clue. But eventually they start going to daycare and they see other people’s mommies and daddies picking them up at the end of the day. And eventually they’re like, do we have a mommy? And like, well, no, you have two daddies. And they explain that families come in all shapes and sizes — single parents, same sex, heterosexual parents, etc. And so they have an early appreciation for the fact that their family is different.

They don’t quite understand at that age how babies come about, but in a few years they start to get an appreciation for that. And then we have the surrogacy talk . We basically started off saying it was a friend of ours that helped us. We didn’t get into any details or contracts or cost fees, but a friend of ours helped us, and she was very generous and helped carry you. And then the story just grows over time. And I think it’s really important to be completely honest with the children.

It’s important for them to know how they came to be, where they came from, what their makeup is. For us, our egg donor as well was completely open. We had a fully known and open contract with full names, so that someday, if our children are interested, they have the ability to reach out to her and find out more.

SP: And of course, the reality today is that anonymity is really dead with the rise of databases like ancestry.com, 23andme.com. As soon as someone puts in the request for a test in those databases, keep vacuuming up that information and sooner or later, you’ll be able to track the person down, without a doubt.

RV: Yeah, absolutely. We discussed this a lot with our clients these days, and more and more people are really welcoming with open arms, open arrangements or semi-open arrangements for the sake of the child, because there really is no guarantee of anonymity.

SP: And just to explain to our Australian listeners, semi-open, as you’ve described, is what we have in Australia, namely that the donor isn’t known, but the child can find out after the age of 18 if they want to, who the donor a exactly.

RV: And for us here in the US, it means that there’s some mechanism for communication that’s made a part of the arrangement, whether it’s through a donor-sibling registry or an anonymous email. There’s some contact possible even before the child turns 18, there’s a way of the parties communicating with each other.

SP: And in the midst of this, when you decided to change your career from medical devices to helping people have kids, you somehow morphed into this super lawyer who’s and that sounds like you stay in sky buildings, but the reality is that you are recognised around the world for your expertise, particularly with surrogacy, but certainly fertility generally. And tell us about the journey, about how that happened when you started off into this journey because you are becoming a dad and then discovered that, I presume that you actually like what you were doing.

RV: Yeah. I absolutely love what I do. And I think that’s obviously an important part to anyone’s success is really being passionate about what you do. I had an unusual trajectory in some ways for many lawyers in this space. They practise other areas of family law, and they find their way into assisted reproduction. And so it’s not the sole focus of their practise, but I was hired into an already successful practise. So from day one, all I’ve ever done in this field was 100% assisted reproduction. And at the time I joined the firm, they were looking to create a national law firm.

And I had experience with creating national networks and national sales distribution networks for the prior medical device company that I worked for. So it was a good fit for me. This is why it was right time, right place. And in doing this for the law firm, I created relationships with attorneys in each state around the US, creating of council relationships between lawyers practicing in that state. And they would be are of Council.

SP: Just about that, your network of, as you say, of Council is unparalleled. No one else in this field has that network of colleagues that you work with.

RV: Absolutely. It takes a lot of time and effort and resources to build that network. And we had the ability to do that at the time, which was 2006. And I would go out and personally interview and talk to these attorneys and make sure they were a good fit, that they understood that we were about all families, so single people, same-sex couples, et cetera. And we needed their support in ways that a lot of other family lawyers at the time weren’t able to provide. So handpicking these folks and then learning the law in each of these States, it almost became sort of a natural jump to then get involved with the American Bar Association and then eventually become the chair of the American Bar Association Assisted Reproduction Committee.

SP: I’m just going to just stop you there and just say, I think one of the things that Australians don’t often don’t understand is that there’s not one system of law to do with surrogacy or egg donation in the US, is there?

RV: No. In fact, the assisted reproduction law is not a matter of federal law in the US. It does change from state to state. And you have to be aware of and including into your contracts and other work, the law of each relevant state that touches that transaction. So it is definitely a state-by-state thing. And it’s been evolving in the US for over 30 years now. Even today, the laws are drastically different from one state to the next.

SP: And so we’re looking at a grand total of 50 States, plus the District of Columbia. So I’ve got 51 States, all all with different systems. And you somehow have got your head around all of those.

RV: Yeah. Had to, it was part of the job. And one of the things that we do when we meet with new prospective intended parents who are looking at surrogacy in the US is we want to assess based on their particular situation, what states in the US are legally suitable for them. So we had to get a good understanding of the law in each state. And so as that research and education, self-education progressed, it became kind of a nice, natural jumping point to chair the American Bar Association Assisted Reproduction Committee.

And in doing so, I got to meet everybody else in the field, not just the councils that we had selected to be part of our network. And then, you know, our business naturally includes intended parents from many other countries around the world. So why not develop a network of international attorneys as well? So I’ve just sort of made it my business to meet everybody as much as I can. And I’ve had the good pleasure and fortunate of working with many people from all over the world and most of the attorneys all across the US who work in this space.

SP: Now, one of the achievements that happened when you chair the ART committee of the American Bar Association was to develop a policy about a proposed hike surrogacy convention. And, of course, now I’ve got to chip you because I remember back in 2014, you said to me, “Well, Stephen, you’re in charge of it, you’ve got to come to this conference in Stowe, Vermont.” And I winced about it because I said that’s about as far away in the world as it is to get from where I am.

And I said, “Can’t Bruce do to it, a colleague who was just down the road?” And you said, “No, no, you remember this, you’re in charge. You’re going to come.” [laugh] And I said, don’t you understand how far it is and my finances and everything? So why can’t we just do it remotely? And you said, no, no, no, no. You’ve got to do it in person for a 20-minute presentation, which, as we discovered the afternoon of the occasion at Stowe, Vermont, it was two minutes. Remember that, how it’s cut down and suddenly we had to cut our cloth to fit the circumstances.

But it was certainly that was an extraordinary experience to have to travel to the other side of the world and present to how many on the Family Law section committee, about 30 attorneys there.

RV: You mean on the Council? Yeah. About 30.

SP: Yeah. And then get them to give the OK for it to proceed after that.

RV: Yeah. So what you’re referring to is at the Family Law section, part of our job is not only to educate attorneys and provide continuing legal education conferences, but to also assess what issues in assisted reproduction law need to be addressed, perhaps at a higher level, on a policy level by the American Bar Association. And when we pick an issue that needs to be addressed and work on it, we develop basically a white paper, research paper. And then we make a suggestion about what the ABA, the American Bar Association policy, should be.

RV: So we start with the white paper and we present it to the Family Law section, which is what you came to Stowe, Vermont, to do. And then once we get the Family Law section’s approval, then we send it out to all the other interested sections of the American Bar Association and other legal organisations.

SP: Let’s just stop you there. Who knew there were so many? [laughs]

RV: Politics as usual, politics as usual. So we get feedback from everybody else that could be interested in the topic. And then once we’ve really heard everyone’s voice, then we presented to the ABA to be approved as an ABA resolution, which eventually was done. We did get the ABA’s imprimatur on it and they approved it. And it became official policy from the ABA to the US State Department in terms of what The Hague was looking at with regard to perhaps regulating surrogacy on an international level. And you were a big part of that.

So we were super thankful for all of your work on that.

SP: Thank you. And let’s be clear when we talk about The Hague. This is The Hague Conference on Private International Law. The place that comes up with Hague Conventions and Australia in the United States, amongst other countries, are members of this conference.

RV: Right.

SP: Let’s put some numbers on. How many attorneys are members of the American Bar Association?

RV: So there are over 400,000 members of the American Bar Association. So that’s a lot of people’s opinions to somehow factor in. So that’s why there’s such a major process to go through to get the approval of the ABA on something of this nature.

SP: But this wasn’t the only policy that you developed while you’re a chair. There are other policies, for example, uniform legislation.

RV: Yes. So a couple of the uniform pieces of legislation that we were able to pass through during my tenure were the ABA American Bar Association Model Act governing assisted reproduction. This had been passed previously in 2008, but that bill took 17 years to get passed from start to finish. And by the time it was passed, it was already out of date. And so I was working on an update to that legislation.

SP: 17 years. You can hear the crickets. I think watching grass grows is a lot quicker. Indeed. [laugh]

RV: But it was in severe native and update from the time it was passed and we worked on it. And even then, during my ten year, it even proceeded when I started this chair. So that project took about ten years.

SP: You don’t get tied to that?

RV: No, not at all. It’s all volunteer.

SP: Yes.

RV: All the travel volunteer, all the travelling, all the lobbying for these things, all the work that’s involved, all the time, the hours, it’s all pro bono, essentially.

SP: And this isn’t something that you could see back to your clients. The clients don’t pay for it. That comes out of your hip pocket.

RV: That’s correct. But it’s important. It’s important work. And I’m very passionate about this. I’m very passionate about making assisted reproduction technology accessible to more people, making it safe for everyone involved. It’s definitely a passion project.

SP: And when one looks at surrogacy agencies, the news just came out a couple of days ago that the former owner of a surrogacy agency on the East Coast has been jailed.

RV: Well, I would say first of all, just be aware that agencies, by and large or not licenced. And so be aware that, of course, anyone can put up a good website. So don’t just believe what you see on the Internet. Double-check it. Get references from friends or family who have been through this process. Get references from your IVF clinic, get references from the attorney that you work with. And eventually you may see some of the same agency names pop up on multiple different lists. And, you’ll know, that’s a way to narrow it down.

RV: There are several hundred agencies in the US, so it’s a massive project to try to narrow it down. But go with the people you know first, and start with those folks, especially the credentialed professionals who can give you qualified referrals. That’s a great way to start.

SP: Sure. And in your work with thousands of clients who have become parents through surrogacy and egg donation, you’ve won some awards. So tell us about the awards that you’ve received.

RV: I don’t even remember. [laughs] The awards aren’t important to me. It’s nice to get them. But gosh, I think I got one from the ABA. I think the Family Law Chair gave me an award, just a recognition for work done. I believe I received an award from the Family Quality Council and then also from the American Fertility Association, which later changed their name to Path to Parenthood. There might be one more. [laughs] So Family Quality Council is a non-profit organisation dedicated to ensuring equality for all families that are either headed by LGBT parents or may have LGBT children.

And it’s there to help promote family building as well as family support. So in terms of the support, it’s all kinds of support from just educational resources and access to funding access. But on the family building side, they promote family building through all forms, including adoption, fostering and surrogacy and assisted reproduction.

SP: As you were saying before, families come in all shapes and sizes and how people are conceived, their journey is unique to themselves. And you are talking about openness and honesty with your children. I think the story that resonates the most with me is the woman who was the first Australian to be born through both surrogacy and IVF in Australia. And she was recounting when she was at school and being picked on by this boy in the school yard. Well, how did you come about? You come about through a test tube and she said, no, let me get this right.

You came about because your parents had sex, at which point all the kids, of course, had a similar reaction because we never want to talk about our parents having sex. But I thought that she got it right. Because it is a unique journey and it is valuable. And she was proud about where she came from.

RV: And she should be. We try to instil that in our children as well without beating them over the head with it. But this process involves so much purpose, so much planning, so much saving. You don’t have your children accidentally through this process. So you save and work for a long time to make this happen. So we often say that the children of these types of arrangements are some of the most loved because of everything the parents have gone through to make it happen.

SP: Wow. Well, with those last words of wisdom from you, thank you for your time today, Rich. That’s awesome stuff.

RV: My pleasure. My pleasure. Always a pleasure to see you, Stephen.

SP: Thanks, Rich. And you’re listening to the Australian Family and Fertility Law Podcast. Thank you for joining.

Outro: Thanks for listening. If you have any questions, please don’t hesitate. Reaching out to Stephen at pageproven.com.au.

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