The Legal Issues Involved in Surrogacy

Approximately 10 percent of people of reproductive age in the United States face some form of infertility. For couples wishing to have families, these statistics are hardly a comfort. For a growing number of families in the United States, infertility is being combated with surrogacy laws.

As assisted reproductive technology becomes more common, the laws surrounding it are also developing. If you are considering using a gestational surrogate or assisted reproductive technology, ensure that everyone’s legal rights and best interests are properly protected. A family law attorney can help you through the process with specialized legal advice.

Assisted Reproductive Technology and Surrogacy

Assisted reproductive technology (ART) broadly refers to the advances in medical technology that allow individuals to achieve pregnancy. Generally, individuals turn to ART to treat male or female infertility issues or, as in the case of same-sex couples, to form families. ART may involve:

• Intrauterine insemination (IUI) of a woman with sperm
• In vitro fertilization (IVF) of a woman’s eggs with sperm to create embryos that are placed into the intended mother’s uterus
• Third-party assisted ART, which occurs when intended parents utilize the genetic material of others and/or involve a third party to carry a child. In vitro fertilization is an assisted reproductive technology (ART) process that has enabled families facing infertility to achieve pregnancy since the 1970s.

If you are considering assisted reproductive technology to form a family, the first step in that process is to speak with a professional who has worked with couples who have experienced infertility. Working with an attorney who can guide you through your next steps with both expertise and sensitivity will help you feel grounded during an emotionally challenging time.

Additionally, just because science has improved vastly doesn’t mean that the law has kept pace. It is critical that individuals engaging in ART procedures ask a trusted advisor important questions, including: “Where am I living, and what do the laws regarding assisted reproduction or parentage say? What else should I consider before I engage in assisted reproduction? Should I consult with a mental health professional? What kind of relationship can I have with a surrogate/gestational carrier?”

Find top Family Law lawyers easily

Connect with a qualified attorney today.

Find a lawyer today

Consulting an Experienced Attorney

Assisted reproductive technology law is a nuanced and specialized area of family law. You will want to work with an attorney who is intimately familiar with the parentage laws in all of the jurisdictions whose laws could bear on parentage in your situation.

Relevant jurisdictions include the state of residence of the intended parents and the gestational carrier, the state of delivery, and the state of the embryo transfer at the time.

In New York, the Child-Parent Security Act (CPSA) created a path for establishing parental rights for those using assisted reproductive technology to have children. Before that, New York was one of only a few states that forbade hiring someone to carry a child, says Alexis L. Cirel, a family law attorney and partner at Schwartz Sladkus Reich Greenberg Atlas. “Now, it’s a very surrogacy-friendly state.”

Surrogacy laws vary by state, and surrogates often live in a different state than the intended parents, Cirel says. An attorney will want to evaluate the laws in both locations to ensure there are no barriers to establishing the parents’ legal rights upon birth. “Being able to do so can depend on whether the intended parents are married, a same-sex couple, or using sperm or egg donation,” she says.

Paperwork, Procedures, and Legal Requirements for Surrogacy

Many state laws recognize surrogacy agreements and allow some form of it. Surrogacy is an increasingly popular choice for people otherwise unable to have a baby. Even when the regulations are favorable, everyone should enter the surrogacy arrangement on the same page. The parties must agree on the gestational surrogacy agreements before a surrogate undergoes treatment.

“Think of it as a business agreement, where everything is clear, so everybody knows what their responsibilities and duties are and how their expectations will be met,” says Elizabeth A. Douglas, an attorney experienced in surrogacy at Douglas Family Law Group.

“That contract assigns what the expectations are, so you can’t now have a hope that’s not memorialized in writing. So you’re going to be disappointed if you haven’t been clear with what you want and hope to achieve.”

Another essential legal document is the pre-birth order. This is typically completed in the second trimester and provided to the delivery hospital with the surrogacy contract. Its intent is to contribute to a smooth transition following the birth.

“This makes it very clear that the child is the intended parents’ child and that the surrogate has no responsibility or legal custodial rights,” says Douglas.

“Your counsel should help you memorialize [several things in the surrogacy arrangement],” says Sogand Zamani, a family law attorney in Washington, D.C. In general, any gestational carrier arrangement should cover the following elements:

• Finances, including the surrogate’s base compensation and health care reimbursement
• The surrogate’s health responsibilities include taking care of herself and the baby throughout pregnancy and following the obstetrician’s pre-birth orders
• Selective reduction and termination, if that should become necessary
• Medical decision-making
• Informed consent
• Who will be present at prenatal appointments, birth, and legal parentage

“The lawyer needs to prepare appropriate documentation to memorialize the cornerstones of any gestational carrier arrangement,” says Zamani. “The counsel has to prepare an affidavit saying they have complied with the statute.” Each party in the collaborative reproduction needs to have their own counsel — from the intended parent to the surrogate and their partner — and you really should have one starting when you consider receiving or purchasing genetic material.

Surrogates Have Autonomy in the Surrogacy Journey

Although the intended parents may make certain requests when matching, the gestational surrogate retains significant autonomy to negotiate the contract’s terms.

In some states, the surrogate mother can decline to carry a multiple pregnancy, which happens more frequently in assisted reproductive procedures like IVF. If an embryo splits, resulting in twins, triplets, or more, “the surrogate—not the intended parents—has the right to selectively reduce,” Douglas says.

Surrogates also receive mental health counseling and support. Surrogates also get legal advice from a separate attorney, all paid for by the intended parents. Intended parents need the financial bandwidth to cover prenatal care, the surrogate’s compensation, and other unexpected expenses as well, says Douglas.

Terminating the Surrogacy Relationship

Sometimes, a match simply doesn’t work out, so either party may terminate the relationship at any time before embryo transfer. These are uncomfortable topics. However, there’s a good reason to detail these situations in the agreement with clear terms on contract termination.

Ultimately, the contract offers some guardrails and reassurances, Cirel says. However, intended parents must accept the unknown. “Even when you do your best to memorialize everybody’s intentions at the outset, it’s a delicate balance of trust and relying on some legal safety nets. You won’t be able to police everything the surrogate does.”

Understanding the Cost of Surrogacy

The cost in the United States of a surrogacy can be anywhere from $75,000 to $240,000, depending on the complications and particulars of the pregnancy. Payment to the gestational carrier for reimbursement of expenses constitutes the vast majority of that amount. Legal fees could be anywhere from $3,000 to $12,000.

Entering into collaborative reproduction is a big decision. There are significant emotional and financial costs involved in the process. In light of this investment, choose an attorney who can help you understand the process thoroughly and help you minimize risks along the way.

Find Legal Help

Get legal advice about any legal issues that come up in surrogacy cases. Find an attorney who understands your state laws for surrogacy agreements. Visit the Super Lawyers directory to find an experienced family law attorney near you.