To read the full article written by surrogacy attorney, Marla Neufeld: https://www.inciid.org/baby-steps-to-surrogacy
I was under the impression that once you decide to start a family, you toss the birth control and give it the ‘old college try’. BAM! There you are in your cute maternity jeans, booking your family trip to Disney World. I was surely mistaken. The reality my husband and I suffered through years of failed infertility treatments, disappointment, and expense. We attempted IUI (intrauterine insemination), IVF (in vitro fertilization), injected boxes of hormones, endured multiple miscarriages, and wished upon “good luck” charms. We decided we had endured enough and yet didn’t want to give up our dream of having our biological child; we reached a ‘baby making’ crossroads and reassessed our game plan. Several frozen embryos remained from a prior IVF cycle. I could have tried IVF again by means of a FET (frozen embryo transfer). As much as I wanted to experience pregnancy my chance of success was very slim; ultimately our doctor approved us for surrogacy.
The process inched forward. Finding a surrogacy agency, surrogate, surrogacy attorney, finalizing medical and psychological testing, and finishing the surrogacy contract took six months. Financial concerns are of paramount importance as surrogacy can range from $60,000 to $150,000. Some expenses include medical costs for IVF, medications, and two attorneys. One attorney writes the contract and another attorney to review contracts for the surrogate, surrogate agency fee, medical insurance for the surrogate and reasonable living expenses of the surrogate.
Each state has different laws regarding surrogacy. Some states make it a crime to compensate a surrogate. Other states have surrogacy friendly laws that provide guidelines on compensation to surrogates. These surrogacy friendly states also set clear rules on how those using a surrogate, commonly referred to as the commissioning couple or intended parent(s), can be named as the legal parents of the child without having to go through an adoption or other means of finalizing parental rights. There two types of surrogacy: (i) “traditional” where the child is conceived using the egg of the surrogate, and, (ii) “gestational” which is the more common form of surrogacy where the egg is that of the intended mother or egg donor barring the surrogate any parental rights to the resulting child (or children).
Finding the right Surrogate
My husband and I interviewed multiple candidates before selecting our amazing surrogate. The first surrogate we disqualified based on moral differences. We excluded second potential surrogate because she did not pass physical screening requirements. The third time was most delightfully the charm. This surrogate’s husband and she were warm, friendly, positive, and genuinely were excited to help us expand our family.
The intended parents secure a surrogate that has cleared a background check, psychological assessment by a licensed psychologist, and medical examination by a licensed reproductive endocrinologist. Intended parents may locate a surrogate on their own (i.e. Internet, friends, family) or through fertility clinics or surrogacy agencies.
There are advantages to using a surrogacy agency. Agencies provide (i) provide a number pre-screened surrogate candidates quickly. Agencies address many details you might not realize are important. Such examples may include asking the right questions to your potential surrogate (regarding selective reduction and termination of the pregnancy). Agencies also coordinate various matters such as doctor appointments, transfer embryos from storage facilities to fertility clinics, and other issues.
Some states have legal requirements for the qualifications of a surrogate (i.e. age). Family-building through surrogacy incorporates many practical and medical considerations. Some concerns to think about include:
- Does the surrogate have children
- Does she have experience?
- Is her pregnancy and birth history without complications?
- Does she live in a stable and healthy environment for supportive family and friends?
- Is she not any form of governmental assistance?
- Is there a criminal history?
When selecting a surrogate be sure the surrogate is emotionally stable and that her goals mirror the intended parents on the issue of termination or selective reduction of the pregnancy. In an unexpected event such as a neurological, physical, genetic or congenital defect, deformity or other disability with the fetus, are the surrogate and intended parents on the same page.
The surrogate and intended parents may include termination contingencies in their contracts (i.e. in the case of multiples, or genetic anomalies). However, ultimately under constitutional principles, the surrogate has the right to change her mind. The intended parents cannot force a surrogate to terminate or prevent her from carrying a pregnancy to term. Therefore, it is critical for this topic to be discussed between the parties and with the licensed therapist to make sure everyone is on the same page.
Related Article: What to Look For When Selecting a Surrogate
Health Insurance for you Surrogate
The intended parents start the process of obtaining or confirming health insurance for the surrogate. Maternity benefits are based on the surrogate’s health insurance if she has any. Insurance policies at times exclude a surrogacy from coverage for health insurance benefits. It is important to have the proper health insurance protection because intended parents are responsible for all health insurance costs for the surrogate relating to the pregnancy.
Selecting the Fertility Clinic
Simultaneous with the selection of a surrogate, the intended parents select the fertility clinic they wish to use to screen the surrogate and create the embryos for transfer into the surrogate. Confirming that the fertility clinic selected works with surrogates is crucial because of the specific Federal law guidelines. Not all fertility clinics offer this feature to their patients. My fertility clinic did not offer surrogacy services, so I had to switch clinics and ship my frozen embryos to another fertility practice. Based on the location of the surrogate, you may need to select a second fertility clinic that is closer to the surrogate to monitor the surrogate during the process to avoid her having to travel for routine appointments.
Finalizing a Surrogacy Contract
Before a surrogate begins fertility medications, a gestational surrogacy contract must be drafted. A contract or similar type of agreement is reviewed and negotiated by the attorneys and then fully executed by the intended parents and surrogate (her spouse or partner if applicable). The intended parents and the surrogate should be represented by separate attorneys (both to be paid by the intended parents). It is critical to have the proper documentation in place prior to embarking upon the fertility procedures with your surrogate in accordance with the appropriate state laws.
The gestational surrogacy contract is an agreement detailing the parties’ rights, obligations, intentions, and expectations. This third party reproductive technology agreement and arrangement covers such subjects as:
- Parental rights;
- Custody issues;
- Location of delivery;
- Future communications between the parties;
- Control over medical decisions during the pregnancy;
- Number of transferred embryos;
- Payment of medical bills;
- Liability for medical complications and
- Any other provisions required by applicable state law.
Related Article: Common Surrogacy Contract Terms
Establishment of a Surrogacy Escrow Account
Prior to the embryo transfer and throughout the pregnancy, an escrow agent typically delivers the money being paid to the surrogate according to a schedule established by the contract. The intended parents and surrogate should not exchange money during the surrogacy journey. All financial obligations are handled through the escrow agent to allow the intended parents and surrogate to focus on the pregnancy.
Transfer from the Fertility Clinic to an Obstetrician
The parties agree on an obstetrician so that at 8-10 week’s gestation the surrogate leaves the care of a fertility clinic. She transfers to an obstetrician who participates in her insurance plan. Fertility medications for the surrogate may continue for twelve (12) weeks of pregnancy.
Coordination of Birth with Selected Hospital
Around the second trimester, the intended parents’ attorney coordinates with the risk manager or nurse administrator of the obstetric department of the selected hospital. Coordination is important to ensure the delivery process is smooth for both parties. A crucial part of this arrangement is to explain the surrogacy arrangement to the hospital staff. The staff must be clear about the surrogacy arrangement, so the intended parents have full hospital access. Many hospitals formulate a birth plan between the parties including those who can access the nursery. Other considerations are 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 Caesarean section.
Establishing Parental Rights of Intended Parents
After the birth, the procedures for removing the surrogate from the birth certificate and placing the intended parents’ names on the birth certificate is a matter of state law. Consultation with an experienced third party reproductive attorney is critical. Assistive reproductive technology attorneys should understand and explain the process, procedures and most importantly the risks based on the state laws.
Note: For intended parents who are citizens of another country who use a surrogate in the United States, it is also important to discuss immigration issues. Children born in the US have birth certificates for the state in which they birthed. International intended parents need to be sure their child is granted citizenship and allowed to enter the home country with the intended parents.
Egg/Sperm Donation Considerations
There are additional considerations for intended parent(s) utilizing a sperm or egg donor. Donated genetic material obtained at frozen egg/sperm banks, through fertility clinics, or through donation agencies need additional legal contracts. Their contracts, based upon the specific state laws involved, are required between the intended parents and donor (either with an anonymous or known donor). Legal contracts protect the rights and obligations of all parties involved. There are additional medical screening requirements by the fertility clinic when there is a donation of genetic material.
Prior to my infertility experience, I practiced law as a transactional attorney at a large Florida firm. My infertility and surrogacy journey inspired me to shift my practice to exclusively surrogacy and assisted reproductive technology law. My passion for couples who need third party assistance awarded me the pleasure of doing this type of work. I know personally, the daunting prospect when considering surrogacy. I can now help others navigate through the system to understand the process and the legal implications. As a fun side note, my husband and I are among celebrities that have ventured down the surrogacy road such as Jimmy Fallon, Sarah Jessica Parker, and Elton John. We received unbelievable support from our family, friends, community, and new surrogacy family to help make what seemed impossible become a reality. As my surrogate always said, “It takes teamwork to make the dream work”.
Marla Neufeld, Esq: Marla is the legal chair of Greenspoon Marder’s Surrogacy Law practice group, a full-service Florida law firm, founded in 1981. Marla’s personal experience with surrogacy affords her the ability to provide an array of available third party reproductive technologies and adoption laws in Florida. Marla is honored to represent heterosexual and same sex married and unmarried couples and individuals and offers free consultations to those interested in surrogacy or adoption.
Contact Marla at 954-761-2929 or Marla.Neufeld@gmlaw.com