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General "Baby" Steps in Surrogacy

Providing legal guidance for Florida residents regarding all surrogacy and reproductive technology issues. Contact us today to schedule a free initial consultation at (954) 761-2929.

General "Baby" Steps in Surrogacy

My surrogacy journey from deciding to use a surrogate to a confirmed pregnancy test took approximately six (6) months. After a medical doctor determines that surrogacy is indicated for the intended parents (medical clearance is statutorily required in Florida), the general “baby” steps in a surrogacy journey are as follows:

1)    The intended parents secure a surrogate that has cleared a background check, psychological and medical examination. Intended parents may locate a surrogate on their own (i.e. Internet, friends, family) or through the use of an agency. I used an agency as an agent will (i) provide you quickly with numerous pre-screened surrogate candidates, (ii) address many details you would not realize are important such as asking the right questions to your potential surrogate (regarding selective reduction and termination), (iii) coordinate various matters such as doctor appointments, transfer embryos from storage facilities to fertility clinics, and other issues. I can help suggest reputable surrogacy agencies.

2)   The intended parents start the process of obtaining or confirming health insurance for the surrogate. I can help suggest reputable health insurance agencies that will insure a surrogate if she does not have insurance or if her insurance excludes surrogacy. Many insurance agencies, especially in Florida, are starting to exclude surrogacy from coverage for health insurance benefits. It is important to have the proper health insurance protection because intended parents are responsible for the health insurance costs for the surrogate relating to the pregnancy.

3) Simultaneous with the selection of a surrogate, the intended parents select the fertility clinic they wish to use to help create the embryos to be transferred into the surrogate. It is important to confirm that the fertility clinic you select works with surrogates since it requires specific Federal law guidelines that not all fertility clinics offer to patients. My fertility clinic did not offer surrogacy services so I had to switch clinics which caused a delay in my surrogacy journey. Based on the location of the surrogate, you may need to select a second fertility clinic closer to the surrogate to monitor the surrogate during the surrogacy process to avoid her having to travel for routine appointments during the process.

4)   Before fertility medications can start for the surrogate, the Gestational Surrogacy Agreement will be drafted, reviewed, negotiated by the lawyers and then fully executed by the intended parents, the surrogate (and spouse, if applicable), and the lawyers for the intended parents and surrogate. The intended parents and the surrogate should be represented by separate lawyers (both to be paid by the intended parents). Drafting and finalizing a Gestational Surrogacy Agreement can take approx. 3-4 days, depending on the negotiations.

The Gestational Surrogacy Agreement is a detailed agreement intended to detail the parties’ rights, obligations, intentions and expectations in connection with their third party reproductive technology arrangement, and covers subjects such as parental rights, custody issues, compensation, location of delivery, future communication between the parties, insurance, control over medical decisions during the pregnancy, payment of medical bills, liability for medical complications, and other provisions required by Florida law.  Based on which party I represent, I will help explain and negotiate either the intended parents or surrogate’s rights and obligations under the Gestational Surrogacy Agreement.

5) Prior to the embryo transfer and throughout the pregnancy, an escrow agent will deliver the money being paid to the surrogate according to the schedule of payments established in the Gestational Surrogacy Agreement. All funds are held in a federally insured escrow account so that the intended parents and surrogate do not have to exchange money during the surrogacy journey and all financial obligations are handled through the escrow agent to allow the intended parents and surrogate to focus on the pregnancy.

6) The surrogate will continue to see the fertility doctor until around eight (8) – ten (10) weeks of pregnancy when she is released to an obstetrician, to be selected by the intended parents. Fertility medication for the surrogate may continue for twelve (12) weeks of pregnancy.

7)   Around the second trimester, I will coordinate with the risk manager or nurse administrator of the obstetric department of the hospital to ensure that the delivery process will be smooth for the parties. It is important for the hospital staff to understand the surrogacy arrangement so the intended parents have full hospital access. The intended parents select the hospital for delivery of the child(ren). Most hospitals formulate a birth plan which includes who has access to the nursery, whether the intended parents want a separate room for visitation, and who will have access to the delivery room in the event of a vaginal birth or c-section.

8)   I arrange for the intended parents to be placed on the birth certificate for the child(ren) and that all court records are sealed for security purposes. Although the court is involved in issuing a final birth certificate, it is merely a formality because in Florida, the Gestational Surrogacy Agreement serves as evidence that the intended parents have immediate parental rights upon the birth of the child(ren).

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