01 Sep 2020 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.