18 Sep 2020 5 Reasons You Need A Surrogacy Lawyer

For any intended parents beginning the journey to creating a family via surrogacy, one of the first steps should be to consult with an experienced surrogacy attorney.

As a founding partner of International Fertility Law Group, I dedicated the practice exclusively to helping intended parents who are building their families via assisted reproductive technologies such as egg donation, sperm donation, in vitro fertilization (IVF) and surrogacy.

More than a decade ago, my spouse and I became parents of twin boys using assisted reproduction. In our case, the boys were conceived via IVF using sperm from each of us and donated oocytes, or eggs. A surrogate carried the boys to term and gave birth.

That challenging and joyful experience inspired me to leave a successful career in corporate law for the exciting and rapidly changing field of assisted reproductive technology law, or fertility law.

With some background in family and fertility law from my law school days, I was fascinated by the legal processes required at every step to ensure the rights and responsibilities of all parties—our egg donor, our surrogate and our own rights as parents. 

When we began our path to parenthood, we were fortunate to have the services of a veteran surrogacy lawyer who ensured we had the proper documentation and court orders to protect our family legally. Perhaps even more importantly, he helped prepare us for what to expect and the critical decisions that had to be made at each step in the reproductive law process.

The services of an experienced surrogacy lawyer are essential in protecting families created via ART. Here are five reasons intended parents need a surrogacy attorney.

1. An experienced surrogacy attorney will guide you every step of the way on your path to parenthood.

Our IFLG team of attorneys and paralegals have helped thousands of intended parents from all over the world as they become parents through egg or sperm donation, IVF and/or surrogacy.

Recently, even in the midst of a global pandemic, we have experienced a “baby boom” of client babies being born, and we have helped dozens of intended parents travel to the U.S. to be present for the birth of their babies and get their babies safely back home.

Babies and the families who love them are the reason we do what we do! It is our mission and greatest joy to support and guide them on this miraculous journey!

2. Surrogacy law, as well as laws governing how parentage is established, vary widely from state to state and from country to country.

Some jurisdictions are simply more surrogacy friendly.

Despite years of work by organizations such as the American Bar Association ART Committee and the National Conference of Commissioners of Uniform State Laws, state lawmakers and surrogacy advocates to modernize and standardize parentage and surrogacy laws across the United States, a diverse patchwork of laws persists. 

Many U.S. states have enacted clear and effective surrogacy laws that provide guidelines for assisted reproduction health care, for surrogacy agreements and for determining parental authority. In other states, there are few laws on the books, and courts typically look to existing case law for guidance. In a few states where clear laws exist, surrogacy is so severely restricted as to effect a ban. 

For example, under existing New York surrogacy laws, only so-called “altruistic” surrogacy is legal; in other words, it is not legal to compensate a surrogate for time, inconvenience or discomfort. But even if a surrogate is willing, a surrogacy agreement—essential to establish the rights and obligations of all parties—is not enforceable in court.

 The surrogacy process for New York intended parents will improve dramatically in February 2021. Earlier this year, New York legislators passed a sweeping package of reproductive and parentage law reforms, removing the decades-old ban on compensated surrogacy in New York State. This reform included a Surrogate’s Bill of Rights and basic requirements for surrogacy agreements.

Meanwhile, the state of California is known for its progressive laws governing assisted reproduction and parental establishment, which allow intended parents to obtain pre-birth court orders of parentage, so that the intended parents, and not the surrogate, are established as legal parents from the moment of birth.

An experienced surrogacy attorney must be knowledgeable about the variations in state laws and about which jurisdictions are most favorable for establishing the legal parentage of intended parents and will have the ability to work with local attorneys versed in working with the local courts on surrogacy cases. Our firm, IFLG, has established a nationwide network of highly qualified consulting and affiliated attorneys, and with this network (the longest such established national network) we have helped thousands of intended parents navigate the variations in state laws in the U.S.

Just as laws vary from state to state in the U.S., surrogacy and parentage laws vary widely from nation to nation. Likewise, some jurisdictions have clear laws governing surrogacy; in other countries, laws are non-existent, and there is little regulation of surrogacy or other fertility treatments.

For intended parents who travel to the United States or another country as part of their surrogacy journey, the experienced surrogacy lawyer will help establish a relationship with an attorney in their home country.

This home-country attorney must be familiar with the law and documentation required to ensure that, when the family returns home with their newborn, the intended parents are recognized as legal parents, and the baby is recognized as a citizen of the home country. Our clients at IFLG benefit from our international network of experienced family law attorneys in 92 countries.

3. ART laws and fertility laws are continually changing.

This is in response to advances in this rapidly evolving technology and in response to changes in how families are created and what it means to be a parent. 

The world has changed immensely over the past decade, with the growing acceptance of and access to assisted reproduction technologies, such as surrogacy, as family-building options and with changing definitions of family and parentage.

In the United States, which legalized same-sex marriage nationwide in 2015, lawmakers and courts have differed from state to state in their acceptance and embrace of new family structures. Since then, several states have introduced new laws imposing new limitations on reproductive rights and even seeking to establish the “personhood” of embryos, even before they are viable outside the womb. 

Experienced surrogacy attorneys will keep their fingers on the pulse of the reproductive and parentage laws in their jurisdictions. They will be able to help guide the intended parent on what is required to comply with local requirements.

The attorneys should have a proven track record of working successfully with local judges and government agencies.

4. An experienced surrogacy attorney will work with you to draft a legally enforceable surrogacy agreement.

The agreement should clearly state the intentions, rights and responsibilities of all parties.

A correctly prepared surrogacy agreement will be customized to the intended parents’ and surrogate’s unique circumstances. Ideally, all parties will have carefully discussed the myriad of issues addressed in the surrogacy contract well before the agreement is completed and signed. To work, the agreement must be fair and balanced in considering both parties’ needs, rights, obligations and responsibilities.

A proper surrogacy agreement will, at a minimum, address the following issues relating to the pregnancy, delivery and post-delivery:

Surrogate’s Intention

The surrogacy agreement will stipulate that the surrogate intends to bear a child or children for the intended parents and agrees, with her husband or significant other, if applicable, to work to ensure a healthy pregnancy to the best of her ability.

Parentage

Arguably the most significant provision in any surrogacy agreement is who will be the legal parent of the resulting baby or babies. In the surrogacy agreement, the surrogate (and her spouse or significant other, if applicable) will expressly waive all parental rights, and the intended parents will express their intention to be the legal parents of the offspring, assuming all parental responsibilities.

Surrogate Health

A proper surrogacy agreement will unequivocally state the surrogate’s right to protect herself: the child she will bear is the intended parents’ baby, but it’s her body, and the agreement must incorporate respect for both. This mutual respect between the parties is a cornerstone of the agreement and the trust that must exist between the parties and will guide the contractual discussion of a great number of emotionally charged issues.

Selective Reduction or Termination of Pregnancy

Agreement between all parties on the selective reduction of embryos or termination of the pregnancy must be part of a properly prepared surrogacy agreement. This provision will address who has the right, with medical advice, to decide whether to reduce the number of embryos, as in the case of multiples or serious disease/defect/abnormalities, or to terminate the pregnancy and under what conditions.

It is essential that all parties are on the same page before a crisis or the need for tough decisions arises. Typically a surrogate will have undergone psychological screening to assess her suitability for surrogacy and a candid conversation with the intended parents, long before the surrogacy agreement is drafted. The lawyer’s office is not the place for IPs and surrogates to broach these difficult questions for the first time.

Embryo Transfer

The surrogacy agreement will typically state that the surrogate will follow the medical instructions given by the clinic staff or IVF physician without detailing the specifics of the procedure. While the IVF physician will decide when the embryo transfer will occur and how many embryos will be transferred, sometimes the decision on how many embryos will be implanted is made at the last minute, due to factors such as embryo viability.

The agreement should state how many attempted embryo transfers the surrogate will undergo over a specific period of time and how many embryos the surrogate will agree to carry.

Governing Law

The surrogacy contract will stipulate what state’s or jurisdiction’s laws will govern the agreement.

Conduct During Pregnancy

The surrogacy agreement will address the conduct of all during the pregnancy. Typically, the surrogate agrees to follow the doctor’s instructions regarding physical activity, lifestyle, nutrition, travel and travel restrictions, and post-birth conduct relating to breast milk pumping if applicable. The agreement also covers the frequency and type of contact and communication between the surrogate and intended parents during the pregnancy and after.

Delivery

Intended parents often wish to be present in the delivery room, so the terms of their participation in the delivery also should be part of the surrogacy agreement. The agreement also will state whether the surrogate agrees to deliver by C-section upon doctors’ advice, or as is sometimes the case, it is medically necessary for the surrogate to deliver by C-section.

Intended Parents’ Relationship

The surrogacy agreement will stipulate that the intended parents are the legal parents of the baby or babies. That parental responsibility persists even in the event of separation, divorce or death of one of the intended parents.

Post-birth Contact

Most surrogacy agreements state that both parties are free to stay in touch until they decide otherwise. Some agreements stipulate the frequency of post-birth contact or require an exchange of photographs every so often, according to the clients’ wishes. Many surrogates and intended parents continue to have a positive relationship following the birth. There is no right or wrong approach.

Surrogacy Escrow Account

Surrogacy agreements typically require that a trust or escrow account be set up into which the intended parents deposit funds for payment of the surrogate’s fees and expense reimbursements. The agreement should stipulate whether funds are deposited all up-front or in installments, how long the account remains open after birth and the minimum balance required.

Surrogate Health Insurance

The surrogacy agreement should establish what insurance the surrogate is using for her maternity healthcare and who is responsible for the premiums. Intended parents are responsible for any medical costs not covered under the surrogate’s policy, as long as those uncovered costs are related to the surrogacy.

The intended and legal parents are generally responsible for all medical expenses and insurance coverage for the baby or babies from the moment of birth.

Intended parents who do not reside in the United States may find that there are limited options for obtaining insurance coverage for their baby, but with enough advance research and preparation, insurance can be put in place, or cash rates can be negotiated with the birth hospital.

Privacy, Confidentiality and Social Media

The surrogacy agreement typically requires each party to disclose personal information as needed for the surrogacy, with the shared responsibility to ensure each parties’ privacy and confidentiality. Details about the surrogacy contract beyond names and basic location information should not be shared without permission of the other parties.

The agreement should establish the ground rules about talking about the surrogacy in public venues and posting on social media. The guiding principle is, it’s okay to post or talk about oneself, but one party should not say anything that would identify the other party or the details of the contract without the other party’s consent.

Breach of Contract

The surrogacy agreement will state how any breach of contract situations should be handled and what remedy or remedies may apply in the event of a breach. With good planning and preparation as well as thorough screening and properly educating the parties on the arrangement they are entering into together, breach of contract should be unlikely.

5. The services of an experienced surrogacy will help protect your family and give you peace of mind.

We live in a knowledge era when volumes of information are available at our fingertips. In our do-it-yourself society, intended parents may be tempted to save time and cut costs by engaging in cut-rate legal advice or cobbling together an agreement from online templates.

But while thousands of people successfully create families using surrogacy or other types of assisted reproduction every year, navigating the complex, months- or years-long process without competent legal advice is a minefield.

Nothing is more important than the safety and security of your family. Contact the IFLG office today to learn more about how our team of experienced Los Angeles and New York surrogacy lawyers can help you, every step of the way.