THE BABY STEP OF 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' cross roads and reassessed our game plan. Several frozen embryos remaining from a prior IVF cycle. I could have tried IVF again by means of a FET (frozen embryo transfer), but 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, attorney, finalizing medical and psychological testing, and finishing the surrogacy contract took 6 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, two attorneys: one to write the contract and one to review 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. Others have surrogacy friendly laws that provide guidelines on compensation to surrogates and 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. Additionally, there are 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) since she has no genetic connection to the child(ren).

BABY STEPS OF SURROGACY

Consult with a Reproductive Attorney and Trusts and Estates Attorney:

Each state has different laws regarding surrogacy. Some states make it a crime to compensate a surrogate. Others have surrogacy friendly laws that provide guidelines on compensation to surrogates and 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. Before you embark upon this journey, discuss your legal rights and obligations with an attorney to make sure you follow the proper procedures.

Some states require a medical need as determined by a medical doctor in order to use a surrogate while others don’t have this type of requirement. The nonbinding guidelines established by the American Society for Reproductive Medicine (ASRM) provide that certain medical indications ought to be present before an intended parent can use a surrogate. Examples of medical reasons to use a surrogate include a true medical condition that prevents the intended parents from carrying a child to term (for example, absence of a uterus, pulmonary hypertension), the pregnancy would present a risk to the health of the mother or child, or if a couple cannot get pregnant.

In addition to consulting with a reproductive attorney, it is important when considering building a family that you talk to a trusts and estates attorney in the home state of the intended parents to consider formulating a will, trust, and guardianship agreement for the unlikely event of death of the intended parents during or after the surrogate’s pregnancy.

Selecting and Medical/Psychological Clearance of the Surrogate:

My husband and I interviewed multiple candidates before selecting our amazing surrogate. The first surrogate we disqualified based on moral differences. The second potential surrogate was excluded for she did not pass physical screening requirements. The third time was most delightfully the charm. Her husband and she were warm, friendly, positive, and genuinely 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. I used an agency as an agent has the ability to (i) provide you quickly with numerous pre-assessed 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 of the pregnancy), (iii) coordinate various matters such as doctor appointments, transfer embryos from storage facilities to fertility clinics, and other important issues.

Some states have legal requirements for the qualifications of a surrogate (i.e. age), however there are many practical and medical considerations to consider including, but not limited to, whether she has her own children and experienced an uncomplicated birth, lives in a stable and healthy environment with supporting family/friends, not receiving any form of governmental assistance, and free of any criminal history. A surrogate can be a “repeat surrogate” for multiple families as long as the doctor approves her to be pregnant following a prior birth. A big consideration when selecting a surrogate is to ensure that the surrogate is emotionally on the same page as the intended parents on the issue of termination or selective reduction of the pregnancy in the event there is a mental, physical, genetic or congenital defect, deformity or disability with the child. Although the parties may put in their contract that the surrogate will agree to terminate or reduce the pregnancy if such event occurs that the intended parents choose to do so, ultimately under constitutional principles, the surrogate has the right to change her mind and the intended parents cannot force a surrogate to terminate or not terminate a pregnancy. 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. Other issues to discuss with your surrogate may include whether she is agreeable to pump her breast milk following the delivery, how many embryos she is willing to transfer and how many embryo transfer attempts she is willing to complete.

Confirming or Obtaining Health Insurance:

The intended parents start the process of obtaining or confirming health insurance for the surrogate as the maternity benefits for the pregnancy and delivery are based on the surrogate’s health insurance, if she has any. Insurance policies at times exclude 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 and delivery.

Select A 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 to be transferred into the surrogate. It is important to confirm that the fertility clinic you select works with surrogates since surrogacy requires specific Federal law guidelines and not all fertility clinics offer this feature to their patients. Based on the location of the surrogate, you may need to select a second fertility clinic that is closer to the surrogate’s home to monitor the surrogate during the process to avoid her having to travel for routine appointments.

Finalize a Surrogacy Contract:

Before fertility medications can start for the surrogate, a gestational surrogacy contract or similar type of agreement will be drafted, reviewed, negotiated by the attorneys and then fully executed by the intended parents and surrogate (and spouse/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 a detailed agreement detailing 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, reimbursements and payments to or on behalf of the surrogate and her spouse/partner (if applicable), location of delivery, future communication between the parties and confidentiality provisions, health and life insurance matters, control over medical decisions during and after the pregnancy, number of transferred embryos, circumstances the surrogate agrees to terminate or selectively reduce the pregnancy, payment of medical bills, liability for medical complications, and other provisions required by applicable state law.

Establish An 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 in the contract. All funds are held in an independently managed 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.

Fertility Medical Procedures:

Once the embryos are created and the surrogate’s uterus is at the right thickness, the embryos are transferred into the surrogate. Many times the intended parents attend the embryo transfer. Following the two week wait, the parties find out whether the surrogate is pregnant.

Graduate from Fertility Clinic to Obstetrician:

The surrogate will continue to see the fertility doctor until around eight - ten (8 - 10) weeks of pregnancy until she is released to an obstetrician, to be selected by the parties and based on the surrogate’s health insurance. Fertility medications for the surrogate may continue for twelve (12) weeks of pregnancy.

Coordinate Birth with Hospital:

Around the second trimester, the intended parents’ lawyer generally coordinates 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. Many hospitals formulate a birth plan between the parties 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 Caesarian section.

Establishing Parental Rights of Intended Parents:

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. Once the state issued birth certificate is issued, the child(ren)’s passport and social security number can be issued, and typically the child(ren) can be added to the intended parent’s health insurance plan. It is critical that intended parents consult with an experienced assisted reproductive technology attorney at the beginning of the process so they understand the procedures and risks, if any, based on that particular state law’s regulations on surrogacy. For international parents using a surrogate in the United States, it is also important to discuss immigration issues to ensure that the child who will be issued a birth certificate in the state of birth will be able to re-enter the international intended parents’ home county and obtain citizenship as each county has different regulations and procedures for this process.

Egg/Sperm Donation Considerations:

Additional considerations come into play when the intended parent(s) utilize a sperm or egg donor. Such donated genetic material can be obtained at frozen egg/sperm banks, through fertility clinics, or through egg/sperm donation agencies. Additional legal contracts, based upon the specific state laws involved, are required between the intended parents and donor (either with an anonymous or known donor), to protect the rights and obligations of all parties involved. Additional medical screening by the fertility clinic is also required of anyone donating genetic material.

Conclusion:

​​Prior to my infertility experience, I practiced law as a transactional attorney at a large Florida firm. My infertility/surrogacy journey inspired me to shift my practice to exclusively surrogacy and assisted reproductive technology law, awarding me the pleasure of helping others and doing work I am passionate about. I know it is a daunting prospect when considering surrogacy and 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”.

Information on 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, www.marlaneufeld.com, or Marla.Neufeld@gmlaw.com