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SURROGACY 101

The decision to create a family via surrogacy is a deeply personal one and often fraught with emotion. Adding to that complexity is the fact that surrogacy and parental establishment laws vary dramatically from state to state and from country to country. That’s why it is so important that intended parents have the counsel of an attorney experienced in surrogacy law.

There are two types of surrogacy: traditional or gestational. In traditional surrogacy, the surrogate’s own egg is fertilized using the sperm of the intended father or another sperm donor. In other words, the surrogate is also the egg donor. The surrogate then carries the child to term. In traditional surrogacy, the surrogate is the biological mother of the child.

In gestational surrogacy, the surrogate’s egg is not used. An embryo is created outside of the body through in vitro fertilization. The egg and sperm may come from the intended parents or from egg and/or sperm donors, depending on circumstances. Once a viable embryo is produced, the embryo is implanted in the surrogate’s uterus, and the surrogate carries the child to term. In gestational surrogacy, the surrogate has no biological relationship to the child.

When my husband, Tommy, and I decided to become parents, we wanted to have our own biological children. We opted for gestational surrogacy, which meant we used an egg donor whose eggs were fertilized with sperm from both of us, and a surrogate.

Most intended parents seek an egg donor and surrogate through a donor or surrogacy agency. In some cases, a friend or relative of an intended parent may serve as the surrogate. Either way, the first step is a health screening to ensure the surrogate is physically able to carry a child or children to term. In any of those situations, it is critically important that egg donor and surrogacy agreements be in place to ensure the rights and responsibilities of all parties are clearly understood and protected.

In selecting a surrogate, it is essential that the surrogate and the intended parent or parents agree on a number of issues and that there be a high degree of trust between all the parties. We were matched with a surrogate by Growing Generations, our surrogacy agency, and we liked and trusted her from the very beginning.

One of the most important questions for a potential surrogate: Is she willing to carry multiples? When Tommy and I were starting our family some eight years ago, accepted best practice in fertility care was to implant multiple embryos (2-4) in order to increase the chances that at least one healthy baby would be born.

In our case, the first round of egg fertilization and implantation of three embryos did not result in a pregnancy. On the second round, four embryos were implanted, two fertilized with Tommy’s sperm, two with mine. Although our doctor informed us the likelihood of all four embryos attaching was low, there was of course still a risk we might have ended up with four babies. We made the decision to take that chance, due in part to the expense of having to go through another round of egg donation and fertilization at $15,000 to $20,000 per round. As it happened, two of the embryos made it, and in August 2008 our twin sons were born. When our boys were born, we didn’t know which of us was the biological father, and we have never had DNA tests to find out. The boys have characteristics that make us think we may each have fathered one of them. But ultimately, we discovered, the only important thing is that we have two healthy children whom we love very much.

In the years since our boys were born, assisted reproductive technology has advanced, and more accurate testing is being done on the embryos prior to implantation, resulting in more viable embryos. Best practice has shifted to implantation of fewer embryos, sometimes only one, depending upon the age of the egg donor. The most important thing here is that the surrogate agrees to comply with your fertility physician’s advice for ensuring the best possible outcome.

In addition to the decision of how many embryos will be implanted, the intended parents and surrogate must discuss, and include in the surrogacy agreement, a number of other considerations. How will the surrogate be compensated? How will health and life insurance be handled? Is the surrogate willing to undergo abortion or to selectively reduce the number of embryos if that is what the IVF physician recommends? Will the surrogate agree to an invasive procedure such as amniocentesis at the doctor’s recommendation? How will the delivery be handled? Will the surrogate provide breast milk? What contact will the surrogate have with the child following the birth? Under what conditions can the surrogacy agreement be terminated?

Other issues are even less cut-and-dried. Intended parents are naturally concerned about the well-being of their child during the pregnancy. But how much control should they have over the surrogate’s behavior during pregnancy? Can they dictate how the surrogate eats and drinks, whether she exercises, whether she uses alcohol or tobacco, how much sleep she gets? Where do intended parents draw the line between normal concern and intrusion on the surrogate’s privacy?

In some states and countries, compensation of a surrogate is illegal. In some jurisdictions, only traditional surrogacy, in which the mother is biologically related to the child, is illegal. In a few jurisdictions, the surrogate is recognized as the child’s parent even when she is not biologically related to the child. In order to navigate this confusing hodgepodge of laws, which are continually changing as technology advances, intended parents must have the advice of an experienced fertility law attorney. With a properly executed surrogacy agreement, all parties are clear on their rights and responsibilities, and the surrogacy is conducted in compliance with local laws.

Perhaps equally as important as the legal agreement is honest, open communication and mutual trust between intended parents and surrogate. In our situation, our surrogate was married and had two great kids. We knew she was a good mother, and we felt confident she would be a good surrogate to our babies. With that mutual trust between us and our surrogate, and with the advice of an experienced attorney, our story had the best of all possible endings—two healthy baby boys.

Originally Posted on Gays With Kids

Rich Vaughn
Richard Vaughn
rich@iflg.net

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.