IFLG-How to Find a Gestational Surrogate-Making the Right Match

How to Find a Gestational Surrogate: Making the Right Match

(image):  IFLG founder Rich Vaughn and spouse Tommy Woelfel with twin sons, Aiden and Austin, born via IVF and gestational surrogacy

In an ideal world, intended parents (IPs) who are planning to create a family via in-vitro fertilization (IVF) and gestational surrogacy will meet with and get to know their surrogate prior to entering into any legal agreement. In this most important of relationships, making the right match between IPs and surrogate is the best way to ensure that the needs, responsibilities and obligations of all parties are understood and agreed upon from the earliest stages of the journey to parenthood. Once you are sure you have selected a surrogate whose values and expectations match yours, you will be ready to enter a surrogacy agreement, tailored to your unique circumstances by an experienced surrogacy lawyer.

How Parental Authority Is Established in Gestational Surrogacy

The first and most important issue addressed in any surrogacy agreement is the parentage of the child or children to be born: The intended parents—not the surrogate—will be the legal parents, and the surrogate, as well as her spouse or significant other, if applicable, agree to cooperate in helping to confirm, protect and establish the intended parents’ parental authority. Be sure you feel comfortable with the surrogate’s feelings about the surrogacy and motivations for participating. A surrogacy agreement will stipulate that the intended parents will be the legal parents, but, again, it is best to be sure all parties are on the same page before entering a formal agreement. Whether you are working with a surrogacy agency or not, potential surrogates should also be prescreened for emotional or psychological readiness for surrogacy.

Selective Reduction/Termination of Pregnancy in Gestational Surrogacy

Before entering into a gestational surrogacy agreement, intended parents and the surrogate should be clear on all parties’ positions on the emotionally fraught topic of selective reduction of multiple embryos and/or termination of the pregnancy for health or other reasons. More than one tragic court case has resulted when IPs and surrogates suddenly realized they had very different ideas about the appropriate response to genetic disease or surrogate health issues.

Embryo Transfer Issues in Gestational Surrogacy

With regard to the embryo transfer cycle, the surrogacy agreement typically provides that the surrogate will agree to follow the medical instructions given by the clinic staff or IVF physician without detailing the specifics of the procedure. The IVF physician determines the date and time the transfer will take place and how many embryos will be transferred. While the intended parents, surrogate and doctor will have discussed this matter ahead of time due to the nature of the procedure, sometimes the decision on the number of embryos to transfer may be made at the last minute due to factors such as embryo viability. In contrast, while the agreement may not specifically call out how many embryos will be transferred, it is quite standard to indicate how many fetuses the surrogate is willing to carry, and it is essential that (beyond stating it in the written agreement), she, the intended parents and the doctor have addressed that issue ahead of time as well.

The surrogacy agreement should also address how many attempted embryo transfers the surrogate will undergo over a specific period of time, i.e., she agrees to undergo X number of attempted transfers within X number of months of signing the agreement. This is not to say that the stated number of transfers is mandatory: both parties retain the right to terminate the arrangement at any time, so long as the surrogate is not carrying an embryo or pregnant. The more detailed the understanding between IPs and surrogate prior to signing a legal agreement, the less chance of misunderstandings or last-minute misgivings.

Surrogate Conduct During Pregnancy

The gestational surrogacy agreement also will address all parties’ conduct during the pregnancy—the surrogate’s and the intended parents’. Generally, the surrogate agrees to follow the doctor’s instructions regarding physical activity, lifestyle, nutrition, travel and travel restrictions, as well as post-birth conduct relating to breast milk pumping if applicable. Typically, surrogacy agreements address travel restrictions, not only from a medical perspective, but in regard to the establishment of legal parentage, as detailed in applicable family planning law. For example, the surrogate may agree to restrict travel during the third trimester, when early delivery becomes more likely, to ensure that she gives birth in the jurisdiction in which the intended parents have obtained a pre-birth order of parentage and in the hospital where the logistics for the surrogacy birth have been worked out.

All parties should discuss and agree on how often and how IPs and the surrogate will communicate or have contact during the pregnancy and afterward. Usually, the intended parents retain the right to attend the surrogate’s IVF clinic and maternity healthcare visits, while acknowledging the surrogate’s right to privacy and the sanctity of the doctor-patient relationship. The formal agreement should include the surrogate’s authorization to allow the release of medical records to the intended parents and to authorize the IPs to speak directly with the doctor. 

In most cases, the surrogate retains the right to select the obstetrician of her choice. However, the intended parents should ultimately have the right to approve her selection, so they can be assured that the doctor respects their role as intended parents and acknowledges that the baby their surrogate is having is their baby, not hers. The same is true of the selection of a birth hospital—the surrogate may make the choice, but the intended parents retain the right of final approval.

Attending the Delivery in Gestational Surrogacy

Intended parents often wish to be present in the delivery room, if hospital policy and medical conditions allow. Delivery conditions should be included in a formal surrogacy agreement, but the parties should agree on the extent of the IPs’ participation in the delivery before the match is formalized. 

Intended parents should also find out whether the surrogate agrees to delivery by C-section if the doctor recommends it. In some cases, such as when the surrogate has had a prior C-section, a C-section delivery may be medically necessary, and this, too, should be clearly understood beforehand, as well as stated in the surrogacy agreement if applicable.

Intended Parents’ Relationship and Other Changes in Circumstances

Intended parents also share a portion of the responsibilities in any surrogacy arrangement. Divorce, separation or even death of a spouse or co-parent does not absolve the IPs of parental responsibility for the child or children being born with the surrogate’s help. While a legal surrogacy agreement will reinforce the legal obligations of both intended parents, this is another issue that would be agreed between IPs and surrogate before taking final steps to formalize the agreement.

Sometimes, unplanned and unanticipated events occur during the term of the surrogacy agreement or pregnancy, such as an eviction or being forced to move for any reason, particularly if the move involves a relocation that would necessitate finding new doctors, a different birth hospital, or new health insurance. Rather than listing any of the infinite number of potential occurrences, the gestational surrogacy agreement typically states that both parties will inform the other of any material change that could reasonably affect the arrangement between or the rights and/or obligations of the parties.

Post-birth Contact with Gestational Surrogate

Most surrogacy agreements state that both parties are free to stay in touch until they decide otherwise. However, before IPs and surrogates commit to a match, it is preferable to reach agreement on what comes after the baby/babies are born. Some agreements stipulate the frequency of post-birth contact or require an exchanging 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. Many parties stay in touch, and others request no post-birth contact from the beginning. Of course, the parties can change their minds, and so long as the decision is mutual, there is no harm.

Consult an Experienced Surrogacy Attorney

A properly executed surrogacy agreement is an important safeguard for both intended parents and surrogates in ensuring that all rights, responsibilities, obligations and risks are clearly delineated and documented. But before taking that critical step, it’s worth investing some time and attention to ensure you undertake this life-changing journey with a partner who is in step with your values and priorities.

With decades of cumulative experience in surrogacy law, we have helped thousands of intended parents and surrogates from all over the world. Our International Fertility Law Group team protects our clients and their families with carefully drafted, individualized gestational surrogacy agreements.

Rich Vaughn
Rich Vaughn
clients@lseo.com

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
PEIYA WANG(王培娅)
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa
LUIS SOSA
Paralegal

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes
TONI HUGES
Paralegal

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
MIESHA COWART
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.

Kim
KIM DEVEREAUX
Paralegal

Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn
RICHARD B. VAUGHN
Founder

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo
ELIZABETH TAMAYO
Paralegal

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien
SUNNY CHIEN
Paralegal

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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Molly O'Brien
MOLLY O'BRIEN
Partner

Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.