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May 04, 2022 ART: Law & Practice

Utilizing Evidence to Be Proactive in Our Space

Judith A. Hoechst

The Federal Rules of Evidence and how to use them appropriately and effectively was integral to our legal education. As law students we learned evidence makes the existence of a fact more or less probable. We learned of its many forms: testimony, documents, tangible objects, photos, videos, recordings, writings, records, and more. We learned how the Rules of Evidence allocate the burden of producing evidence and the burden of persuading the court. Many people think of criminal law in relation to “evidence,” but proving or utilizing evidence is a critical tool in the everyday practice of all areas of law. Indeed, the proffer of evidence was critical in proving or disproving negligence in my former area of practice, medical negligence and massive tort litigation. Used effectively, evidence is a powerful tool of persuasion for settlement of cases and trial outcomes.

The practice of law does not corner the market on the applicability of evidence in other professions. Evidence-based standards of acceptable practice influence most if not all professions or fields, whether one is an engineer, architect, teacher, contractor, childcare provider, or attorney. I was a pediatric nurse prior to and while attending law school. The practice of nursing utilizes evidence-based medical care to provide acceptable standards of care. Evidence-based medicine is at the heart of good medical care and is the basis of professional decision-making resulting in predictable, positive patient outcomes. The consequence of failing to follow evidence-based guidelines that amount to harm may result in negligence suits no matter the profession.

What about our personal lives? How does evidence affect our real lives, our non-work lives? Reality is defined as a real event, a real thing, a state of affairs. Reality exists in the places where we live our daily lives, in our experiences, circumstances, and relationships with others. There are times when we recognize that gaps exist and we need real-world evidence to fill them in, to make us whole, or to help others.

The events and experiences in my own life compelled me to help others in ways I never saw coming. I always loved caring for babies and children, so it was natural for me to become a pediatric nurse. I went to law school while continuing to practice pediatric and neonatal intensive care nursing. My husband and I experienced great difficulty conceiving. Over the course of time, I suffered multiple miscarriages. I cared for so many babies and children as a nurse and faced the painful prospect of not having any children. We sought the care of a reproductive endocrinologist, successfully conceived via IVF, and my husband and I experienced the deep joy of being new parents of our beautiful daughter. Two years later we explored going through IVF once again to have another child. We learned that due to damage to my uterus from our daughter’s delivery, I was unable to safely carry another pregnancy. We began to explore surrogacy as a means to grow our family. Our physician provided us with appropriate parameters and factors to consider in a surrogate. He said to me “You can do this. You’re a nurse, you’ve worked with people from every walk of life. You’ve been through IVF. You’re an attorney. You’ve got this. You can find someone special who will help you.” He affirmed that reality existed in the places where I lived my daily life, in my experiences, circumstances, and relationships with others.

Years ago, when we were looking for a surrogate, Colorado had no surrogacy statute or case law, and I knew nothing about assisted reproductive technology (ART) law. My practice area was torts. In doing research on surrogacy I learned California had a good surrogacy statute and case law confirming parentage via surrogacy. Because of this, my husband and I looked for a California surrogate to carry our child. We met and matched with a kind, compassionate woman who carried our son for us. Our surrogacy journey was a beautiful and intimately rewarding experience and our family of three became a family of four.

Because of experiencing parenthood via surrogacy, and with the vigorous encouragement of our IVF physician, in 2010 I opened my ART law practice. My practice and the clients I serve struggling with infertility led me years later to work on legislation in Colorado related to infertility. My passion doing this work was compelled by the following facts or evidence: one in eight people, gender aside, are diagnosed with infertility; Colorado insurance providers do not cover the cost of infertility care as soon as a patient is diagnosed with infertility; those undergoing cancer treatment are not covered by their health insurance providers to preserve their fertility prior to undergoing chemotherapy and radiation, which will surely destroy their fertility, and few people facing cancer treatment have the financial resources to preserve their fertility while they’re taking on out-of-pocket medical costs of cancer treatment; the births of multiples occurs because when individuals are not covered by their health insurance providers after receiving the diagnosis of infertility they delay fertility care, making treatment options fewer over time and more expensive in the end, and patients don’t have the financial resources to repeat an embryo transfer cycle and make unwise decisions to transfer more than one embryo for each embryo transfer procedure. Resulting twin or higher order multiples pregnancies increase morbidity and mortality of infants and pregnant women, increasing healthcare costs for our state; Colorado continued to have no surrogacy statute.

In 2016 and 2017 I flew to Utah and California to work with ABA Assisted Reproductive Technology Committee colleagues on the ABA Model Act Governing Assisted Reproduction (2019) which included work on revising the language of the Act. In 2019 and 2020 I worked alongside Colorado colleagues, RESOLVE, and numerous interest groups to draft and pass an infertility insurance mandate, House Bill 20-1158, the Colorado Building Families Act, requiring Colorado health insurance providers to cover the cost of infertility care for the medical diagnosis of infertility (including IVF and embryo transfer) and fertility preservation. Insurance companies commonly exclude patients diagnosed with infertility from covered care as soon as they are diagnosed with infertility. I supported this bill to help those struggling with infertility avoid extreme financial hardship to pay for fertility care, including IVF and embryo transfer. Without insurance coverage, intended parents would have to pay for these procedures out-of-pocket or by borrowing from family members, taking out home equity loans, or drawing from retirement funds. Some would forego having a family altogether.

I also worked on drafting and revising House Bill 20-1014, Concerning Unconsented Use of Donor Gametes in Fertility Treatment making it a class 6 felony to use gametes (typically sperm) from a donor that the patient did not expressly consent to use of that donor’s gametes. Cases like this came about due to DNA testing (such as 23andMe) revealing that fertility clinic physicians were using their own sperm in place of donor sperm for patients in need of donor sperm to conceive. Most recently I’ve been working with colleagues on drafting and revising the language of a confirmatory adoption statute to enable nongenetic parents in same sex relationships to secure their parentage in Colorado without requiring home studies and criminal background checks.

The goal I’d dreamed of for years, though, drafting and passing a Colorado surrogacy statute, came about between 2019 and 2021. I met Colorado Representative Meg Froelich, who agreed to carry a surrogacy bill. I asked a colleague to co-draft it with me. While Colorado’s UPA was allowing ART attorneys success in Colorado with obtaining pre-birth orders determining parentage in the intended parents, there were Colorado courts not willing to sign prebirth parental orders. This was work I was passionate about due to my son’s birth via surrogacy. The legislative process included preparing witness testimony and supporting evidence that a surrogacy statute was good for Colorado, where world-class fertility clinics attracted patients from across the country and around the world. Our last witness was an intended mother who testified she was born without a uterus. She and her husband had gone through ten failed adoptions. Their son was delivered by their surrogate just weeks before she testified before the Senate Committee Hearing. The evidence provided by our witnesses put surrogacy in a very positive light, and the evidence provided by our witnesses—ART physicians and mental health providers, surrogates, intended parents, and their ART attorneys—was compelling. House Bill 21-1022, the Colorado Surrogacy Agreement Act, passed through the House and Senate and was signed into law by Governor Jared Polis on May 6, 2021. Evidence exists in the reality of life. Reality exists in the places where we live our daily lives, in our experiences, circumstances, and relationships with others.

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Judith A. Hoechst, RNC, BA, JD  is the founder of the Law Office of Judith A. Hoechst, LLC in Littleton, Colorado. A former NICU and pediatric intensive care and oncology nurse, Judith has represented clients in assisted reproductive technology law and the complex issues related to family formation since 2010.