Why You Should Work With an Attorney on Surrogacy

In gestational surrogacy, a woman goes through pregnancy for another person or couple. The surrogate carries an embryo from donors or the intended parents. After pregnancy, the intended parents become the legal parents of the child.

It’s important to know the laws of your state, as well as those of the state where an intended gestational carrier lives and where the baby will be born — each of these will play a role in how the process takes place. This is part of what makes the legal aspects of gestational surrogacy tricky. For legal advice about surrogacy contracts, talk to an experienced family law attorney.

Gestational Surrogacy

Gestational surrogacy is booming these days, largely owing to technological advances and growing societal acceptance. The workload of Minneapolis adoption and family lawyer David Gapen reflects this trend. “[I’ve seen] a pretty significant uptick in the amount of surrogacy happening,” he says, crediting changes in the legal environment for transforming what was once a risky DIY effort into what is now a reliable option for prospective parents.

“It’s still an uncertain area of the law, but there’s a lot more certainty than there used to be.” Uncertain, Gapen says, because different states treat the issue differently. Minnesota, where Gapen practices, recently passed legislation explicitly authorizing and regulating surrogacy agreements, moving it out of the aforementioned “silent” category.

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What Laws Do You Need to Follow for Gestational Surrogacy?

“There are some states that specifically prohibit it, some states that specifically authorize it, and then there’s the majority of states where the laws are silent,” says Gapen.

This inconsistent web of laws gives rise to a strategy leveraging the laws that are in place, as well as a potential minefield that you don’t want to cross without a lawyer. “Because of the silence in the law, it’s very much an attorney-necessary process. We work to fit it into the existing laws—the statutes adjudicating parentage, as well as sometimes adoption laws. There is an argument that the intended parents have to adopt their own child,” Gapen says.

Getting a Pre-Birth Parentage Order

Some courts will grant pre-birth parentage orders, but not all – state laws vary significantly. While many states treat parents equally, others strictly require marriage or genetic connection for pre-birth orders or valid contracts. 

One factor that can affect whether a pre-birth order is granted is whether one or both of the intended parents are genetically related to the baby (provided either sperm or egg, or both). Many states may recognize a pre-birth parentage order from another state, but this is not guaranteed and depends on the specific laws and circumstances.

In his practice, Gapen says he hasn’t had anything go awry with the legal process. To some extent, this is attributable to the development in recent years of national guidelines establishing standards and processes for how a surrogate pregnancy is best carried out, with requirements for both the intended parents and the carrier. Most problems occur in circumstances that fall outside the established surrogacy guidelines. “I won’t touch the kind of do-it-at-home turkey baster traditional surrogacy; that’s not advisable,” he says.

Starting the Surrogacy Journey (In a Legal Sense)

The recommended guidelines for surrogacy cases include the following:

• That the surrogate be between the ages of 21 and 38, healthy, covered by medical insurance, and have had at least one baby
• That both the surrogate and the intended parents undergo psychological screening
• That one or both of the intended parents be genetically related to the baby
• There is a surrogacy contract outlining the requirements of each party, with each represented by their own lawyer

How a Surrogacy Lawyer Can Help

If you are looking into surrogacy, whether as a parent or carrier, connect first with a surrogacy agency that follows the above guidelines. Overall, Gapen views surrogacy as a growing opportunity. “There’s more information out there about it, and the medical advancement that has happened in the last 20 years is huge,” he says. “For people who can afford it, surrogacy can be a great option, whether they have infertility issues or can’t otherwise conceive.”

Surrogacy laws vary significantly by state, affecting the legal requirements for gestational surrogate agreements. Legal counsel can tell you about the legal requirements in your state for gestational surrogate agreements. Problems with a surrogacy arrangement can prevent you from becoming the legal parents of the child. Experienced surrogacy attorneys can make sure you follow state laws for a successful surrogacy experience.

Do-It-Yourself Method

If you’re an intended parent looking for a surrogate, you have a few different options under state law. There’s the do-it-yourself type of surrogacy, which involves online forums. On these platforms, some women are former surrogates, while others want to be surrogates.

You can also run ads in newspapers, magazines, online, or on Facebook pages. Here, the surrogate mother is a stranger, but you’re not using a professional to help find the surrogate. You’re asking her the questions, and if you’re my client, I can help do a questionnaire to make sure, preliminarily, that it’s a good match.

For the DIY option, the cost can vary widely depending on legal, medical, and surrogate compensation expenses, and may range from $20,000 to $30,000 or more. These surrogates will sometimes not take a full fee, and you can negotiate because it’s independent.

Surrogacy Program

The next option is a surrogacy program, and there are two types:

• Attorney-run programs
• Non-attorney-run programs

The first type is an attorney-run program. This is where a licensed attorney creates a matching program within their law practice. The intended parents retain the lawyer, who becomes their attorney throughout the process and then helps them find the surrogate through their internal matching program.

Once there’s a match, the attorney handles the whole process, including legal issues. The gestational carrier has separate counsel.

And then there are the non-attorney-run programs. A lot of people tend to lean towards this one, and a lot of the time, these programs are run by former intended parents, gestational carriers, or medical or mental health professionals.

The programs focus exclusively on matching intended parents with suitable surrogates. They get to know the intended parents, advertise in their networks for the surrogates, and interview the surrogates. They spend a lot of time figuring out the fit, and then they match them. Then, there are a lot of counseling and support services. They’re focused on overseeing the relationship between the parties.

Most of the programs charge anywhere between $15,000 and $20,000 for just their services. Surrogate compensation typically ranges from $50,000 to $70,000 or more, plus expenses. The attorney-run programs are a little more expensive; some of that is due to the crossover in the duties, as they’re dabbling in the matching part of it at their hourly rate.

What Happens After a Match?

After a match, lawyers generally do the contract… and the contract fees are going to be under $5,000 for everybody. When the carrier is pregnant, you have to get a birth order to ensure the intended parents are on the birth certificate. Our firm charges $2,500 to do it. Some charge more, some less, but I’d say $3,000 or less. Most contracts take us about three to four weeks. We can do a rush if we absolutely have to, and we charge more.

Then, we’re just available. And if something comes up, they can call us. We keep a file open until the baby is born.

Find a Family Law Attorney with Experience in Surrogacy

If you’re considering gestational surrogacy — or are looking for a gestational carrier — make sure you have an experienced and reputable surrogacy attorney representing your legal rights during the surrogacy process.