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PVED Gestational Surrogacy Legal Considerations for Intended Parents

By: Amy Demma, Esq and Catherine Tucker, Esq

What is a Reproductive Law Attorney and how do I find one?

Reproductive Law Attorneys are legal professionals experienced in the area of clinically assisted family building. These highly specialized attorneys can advise on agency and/or carrier selection but are typically brought in once a match between the prospective parents and the carrier has been confirmed. Primarily, the role of the reproductive attorney is to draft and negotiate the Gestational Carrier Agreement between the parties. The attorney may also be called upon to review other legal documents such as agency service contracts and clinic consents. Some attorneys will also oversee escrowed funds deposited by the parents for the anticipated expenses of the surrogacy. Lastly, as it is always advised that each party have independent counsel. In every surrogacy match, a second attorney will be brought in to review and, if necessary, negotiate the Gestational Carrier Agreement on behalf of the surrogate (and her spouse, if she is married).

How do I find a Reproductive Law Attorney?

Most agencies have relationships with attorneys with whom they regularly work. It is best to consider the agency referral and to acknowledge that referral as qualified and reliable. The prospective parent who is seeking legal counsel before agency or carrier selection has been made should seek referrals to Reproductive Law Attorneys licensed to practice law in either the state where the parents live or the state in which the carrier is expected to deliver. Finding an attorney knowledgeable about and expert in a state’s specific law is important. PVED can assist with attorney referrals, as can other professionals organizations that serve the needs of those relying on assisted family building.

Will the Reproductive Law Attorney do more than just draft the Gestational Carrier Agreement for the parents or review the agreement with the carrier?

Part of the surrogacy process is the legal establishment of “parentage.” In states where a “Pre-Birth Order” is permissible, the attorney for the prospective parent will “petition” or “ask” the court to recognize the prospective parent(s) as the legal parent(s) before the baby is born.

Will the Reproductive Law Attorney assist with matters at the hospital or birthing center?

The attorney for the prospective parent(s) can and should communicate with the staff at the facility where the delivery is planned. Prospective parent(s) want the delivery to be recognized as a “surrogacy delivery.” If there were specific terms entered into the Gestational Carrier Agreement about the prospective parent(s) in the delivery room, such as with whom the baby will room at the hospital and to whom I.D. bracelets will be issued, these terms should be clearly communicated to the hospital in advance of delivery.

Will the Reproductive Law Attorney assist in second parent adoption proceedings, if recommended under the parents’ state law?

Many Reproductive Law Attorneys are also expert in adoption proceedings and will be able to advise and facilitate in this final phase of surrogacy family building. If the attorney who drafted the Gestational Carrier Agreement is not expert in adoption matters, he or she will be able to make a referral to an attorney who can facilitate the adoption.

What if commercial or paid surrogacy is illegal in my state?

It is very unfortunate that some states have made paid surrogacy illegal or even criminal, as is the case in New York. Surrogacy, like all assisted family building, is very, very state specific. Even if you live in a state where paid surrogacy is not legal, ESPECIALLY if you live in a state where paid surrogacy is not legal, you should seek the counsel of an attorney practicing in your state to understand your options. Simply because paid surrogacy is not allowed under your state’s law does not mean that you cannot pursue family building with a paid carrier; it means you cannot do so in your state. Every state’s law is different and very specific. Become informed and educated about what you can and cannot do under your state’s law by speaking with an attorney who is current not only on the legislation in your state but is also up to date on how the court in the county in which you live has ruled about surrogate family building.

My state allows only for compassionate surrogacy. What does that mean?

Compassionate or altruistic surrogacy simply means that no money is exchanged in the surrogacy arrangement. The compassionate or altruistic carrier will not accept any monetary compensation for carrying nor will she seek reimbursement for any expenses incurred during the course of the pregnancy. Typically, but not always, a compassionate surrogate will be a family member or family friend; particularly within the gay community, compassionate carriers are often identified by networking within the community.

What are the downsides or concerns about “self-matching” without an agency?

Most prospective parents are concerned about the costs related to family building with a surrogate; this is certainly understandable. An agency provides more services beyond matching. An agency is a facilitator throughout the pregnancy and often beyond. Researching agencies, costs and the services they provide is a prudent step in family building through surrogacy. Understanding all the logistical issues that an agency can and will manage is to be considered. Some agencies may agree to work with parties who have self-matched, and this is also worth exploring.

What is the purpose of a contract between the Intended Parents and the surrogate?

A contract lays out the expectations of the parties, both with regards to the IVF procedures and pregnancy, as well as with regards to parentage. Contracts commonly cover concepts such as details of the IVF procedures, legal parentage agreements and how parentage will be established in court, financial arrangements, and mutual agreements as to confidentiality, decision-making during the process, and other agreements between the participants. A written contract is critical to have in place before the pregnancy is established in order to protect all of the participants, and in some states it is required in order for the arrangement to have the intended legal impact.

Can one attorney represent both the intended parents and the surrogate?

This is not recommended, and, in some states, it is prohibited. Separate attorneys provide everyone with the benefits of being able to speak privately with their own attorney and of having an advocate being able to represent their interests through the contract phase. With a shared attorney, it’s very hard for the attorney to look out for your interests, especially when negotiating important matters such as financial arrangements between you and the surrogate.

How will my parental rights be established?

The process varies greatly depending on the specifics of your situation. In some circumstances, pre-birth orders ca be used to vest full parental rights from the moment of birth, while other situations will required the use of post-birth orders or the adoption laws. Often the laws of the state where the surrogate will give birth will govern the process, but surrogacy attorneys have developed creative methods of utilizing the laws of other states to best protect your parental rights. Your attorney can determine the best method for your arrangement.

Will our names go on the child’s birth certificate right away?

In many cases, it is possible to accomplish this. However, there may be some circumstances where additional court action is required to make this happen or where it may not be possible to accomplish this. Your attorney can assess your specific circumstances and advise you as to the best approach for your particular situation.

How does the use of donor eggs impact our ability to use a surrogate?

Depending on the state where the surrogate lives and/or plans to give birth, the use of donor eggs may require additional court procedures such as an adoption. In limited circumstances, your proposed surrogacy arrangement may not offer you a path to establish your legal rights to the resulting child. In this situation, your attorney can recommend appropriate alternatives, which may require you to use a different surrogate.

Will we have to adopt our child?

Under certain circumstances, an adoption may be required or recommended. While the concept of having to adopt your own child is troublesome, in some situations it is necessary to secure your legal parentage and to protect the parent-child relationship.

Will I have to have a home study?

There are some arrangements where a home study, or an abbreviated background check, will be required before the court will formally establish your parental rights. This is something your attorney should be able to advise you on prior to the pregnancy, so that you can make a decision as to whether this particular arrangement is acceptable to you.

What are the benefits and disadvantages of going abroad for surrogacy?

While surrogacy aboard tends to be less expensive than arrangements in the United States, prospective parents are accepting additional risks in the process. These risks include lack of access to quality medical care and a potential inability to establish legal parentage as expected. The consequences can be severe—your premature baby could be born in an area without access to appropriate medical care or you may find yourself unable to return home with your baby due to legal technicalities. Even if everything goes smoothly, a surrogacy journey abroad will often mean that you are unable to participate in the pregnancy and birth in the manner you would be able to with a local arrangement. It is crucial to speak with an attorney at home prior to embarking upon an international surrogacy arrangement so that you have the information you need to make an informed decision on whether this is the right choice for you.

How can the risks of surrogacy abroad be reduced?

You can reduce, but not eliminate, your risks by going to a country with an established surrogacy protocol already in place. It’s also important to work with an established program and to do your due diligence prior to entering into any contract or making any payments.

Amy Demma, Esquire

Amy Demma is a New York licensed attorney and founder of Law Offices of Amy Demma with over 11 years of assisted family building experience. Amy has had the pleasure of helping more than 1,100 hopeful prospective families through egg, embryo or known sperm donation as well as compassionate surrogacy. She served for many years as Vice President on the board at RESOLVE New England and most recently served as President of the Board of Directors at RESOLVE New England. Amy was a strategic advisor to Fertility Within Reach, is currently a legal advisor to PVED and was recently admitted as a fellow to the American Academy of Assisted Reproductive Technology Attorneys. She is credentialed in Family Mediation through Harvard Law School and is an active member of the Legal Professionals Group at the American Society of Reproductive Medicine. Most importantly, Amy and her husband are the proud and blessed parents of college age twins conceived through In Vitro Fertilization. Amy can be contacted by email at Amy@lawofficesofamydemma.com or www.lawofficesofamydemma.com.

Catherine Tucker Esquire

As an experienced attorney of 15 years with a background in child and family related legal issues, Catherine Tucker’s practice is now focused on reproductive law matters such as egg donation and surrogacy. Catherine serves on the Board of Directors for RESOLVE New England and is the only New England attorney appointed to the Executive Council of the American Bar Association’s Assisted Reproductive Technologies Committee. Catherine is also active with patient advocacy and education, as well as legislative matters impacting fertility treatment. Having been through far too many rounds of IVF before finally conceiving her twins, Catherine is a strong supporter of PVED’s mission to educate and support parents and prospective parents via egg donation. Catherine can be reached at catherine@tuckerlegal.com.

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