Following are general answers to basic ART questions concerning working with an attorney, using a written surrogacy agreement, and establishing legal parentage after a child is born via surrogacy. These answers should not be considered as legal advice and may or may not apply to your specific situation. Please feel free to call us to discuss your circumstances in more detail.

 

 

WORKING WITH AN ATTORNEY

What is the attorney’s role?
Surrogates, donors, or intended parents who are not yet matched may find it useful to consult an attorney early in their process, to obtain an overview of applicable law, and to learn what options they may have. The laws pertaining to ART can differ substantially from state to state, and it can be important to understand those differences and options before selecting a surrogate, donor, or intended parent in a specific state.

In most ART cases an attorney has two main legal tasks after parties are matched. The first legal task is to help craft a written agreement between the intended parents and their surrogate and/or donors (and sometimes, between the intended parents themselves). The second legal task is to establish the intended parents as the legal parents of any child or children born as a result of the surrogacy. Attorneys or their assistants may also provide a number of other services - screening and matching surrogates and intended parents, coordinating medical procedures, establishing escrow accounts – but these are not strictly legal services and generally can be performed by unlicensed non-attorneys.

When should you contact an attorney?
  • Drafting the ART Contract
    The written ART contract should be completed and signed before any ART-related medical procedure is performed. There are several steps, and often a number of ART team members, involved in creating the contract.

  • Establishing Legal Parentage
    Parentage laws are not the same in all states. In some states, establishing the intended parents as the legal parents of a child may be very difficult, if not prohibited. Therefore, it is wise to consult an attorney to begin planning for legal parentage before committing to a surrogacy arrangement involving any specific state. Then, after a surrogacy pregnancy is achieved, there may be options and choices for establishing legal parentage and actions that should be taken prior to the birth of the child. An attorney should be retained at least two months before the established due date of the child in order to take these steps and to be fully prepared to establish legal parentage as quickly as possible.

Who should have an attorney?
At least two attorneys should be involved in the surrogacy contract process and the parentage process: one attorney to represent the intended parent or parents and one to represent the donor or surrogate and her family. If a conflict develops between intended parents, or between a surrogate or donor and her spouse, it also may be necessary for the conflicted parties to be represented by separate legal counsel. It is important that each party have a representative who is looking out for that party’s interests, independently of the other parties, and who will explain the contract or the consequences of the court parentage proceedings, to that party from his or her unique perspective. This does not mean that the contract and parentage processes cannot be collaborative -- parties and their legal counsel should always strive to find ways to fairly address everyone’s interests. Ensuring that each party has separate legal counsel will significantly enhance the enforceability of the ART contract and help reduce potential legal challenges to the judgment of parentage.

What should I look for in an attorney?
ART involves complex legal, contractual, and emotional issues. You should look for an attorney experienced in and actively practicing ART law as a main focus and not just a sidelight. You deserve an attorney who will be accessible and sensitive to your needs, who will respect your privacy, and who will work to protect not just your legal rights, but your relationship with the surrogate, donor, or intended parents, and other members of the ART team. With regard to the ART contract – the document that forms the bedrock of the relationship between intended parents and surrogates or donors – it’s important that your lawyer have extensive experience drafting and interpreting complex contracts and be capable of writing clear, well-organized documents.

THE SURROGACY AGREEMENT

What is the Surrogacy Agreement?
The surrogacy agreement is the legal contract that details the legal, financial, and other rights, obligations, and expectations of intended parents and surrogates. A good surrogacy agreement outlines basic understandings and provides guidance through worst-case scenarios.

Is a written agreement necessary?
It’s hard to imagine a situation where a good written agreement could be more important. Surrogacy involves matters of health, life, death, and substantial sums of money. The laws regarding surrogacy may offer little guidance or protection. It’s important to have an agreement that meets the parties’ needs and protects their interests. Among other things, a good surrogacy agreement does the following:
  • It outlines the basic understandings of the parties, to help ensure that everyone is on the same page and that there are no unspoken expectations or assumptions.
  • It provides guidance for future rights and obligations in the absence of applicable laws.
  • It governs the legal relationship of the parties throughout the surrogacy process and provides a written reminder of rights and obligations.
  • It allows the parties to plan and be prepared for worst-case scenarios.

How long does it take to create the Surrogacy Agreement?
A number of steps are required in order to draft a good surrogacy agreement, including information gathering, initial drafting, explanation, revision, review by the other party and their attorney, discussion, further revision, and distribution for signing. Although the process can go fairly quickly, it’s good to allow a minimum of one month, and ideally two or three months, for completion of a surrogacy agreement.

Should there be a stated limit to the surrogate’s attorney’s fees?
For a number of reasons, placing an artificial limit on the surrogate’s attorney fees can be a bad idea. First, when the surrogate chooses an experienced and collaborative ART attorney, the fees are likely to be reasonable, even without a fee cap. Second, the surrogate deserves thorough and thoughtful legal counsel to help her understand an agreement that may have profound physical, emotional, and financial effects on her and her family. Third, limiting the surrogate’s attorney fees may effectively limit her access to effective legal representation which, in turn, may weaken the enforceability of the ART contract.

Should the Intended Parents and Surrogate discuss the Surrogacy Agreement?
The nature and extent of communication about the surrogacy contract depends, to some extent, on the preferences and personal styles of the parties and their attorneys. Sometimes it can save the parties a great deal of time, money, and heartache to discuss basic issues -- such as compensation, number of fetuses to be carried, prenatal care, and delivery options – prior to the contract drafting process. Some agencies and attorneys help the parties clarify their values and expectations in advance by providing guidelines, questionnaires or lists of discussion topics.

The contract process itself can provide a good opportunity for the parties to consider and develop a clear understanding of their respective needs and values, and to begin to learn how well they work together. Generally, once the parties are represented by legal counsel, negotiations regarding the surrogacy agreement are handled by the attorneys rather than by direct communication among the parties – another reason why it can be important to choose a collaborative attorney who will work to preserve the surrogate/intended parent relationship.

Whose lawyer originates the contract?
It generally doesn’t matter; the attorney for the intended parents or the attorney for the surrogate can originate the contract. It’s best, however, to have the contract drafted by a lawyer who will attempt to fairly address all parties’ concerns and interests, and for the contract to at least be reviewed by a lawyer in the state where the birth is expected to take place. Generally, the intended parents pay the legal fees for both attorneys.

Is it enforceable?
At present, surrogacy is governed by state law, which can vary considerably from state to state. Some states expressly forbid compensation to surrogates. Others expressly allow it. Many states have little or no law on the subject; in those states it’s difficult to know with certainty whether a surrogacy contract would be upheld. Nevertheless, at a minimum, a well-written contract will provide a clear outline of the parties’ intentions, should any issue arise.

Can the parties draft their own contract or use a form?
No one is required to hire a lawyer, but given what’s at stake in surrogacy, it would be a mistake not to seek experienced legal counsel. Legal fees are typically far less than other surrogacy-related expenses. Relying on good lawyers to draft and review the surrogacy agreement helps ensure that the agreement will be legally enforceable and that it adequately address all important issues and current legal developments. Paying a relatively small amount of attorney fees now for a carefully drafted surrogacy contract may help avoid paying a lot of attorney fees later to litigate a poorly drafted agreement.

For more detailed information about ART contracts:

ESTABLISHING LEGAL PARENTAGE
Legal parentage of a child born to a surrogate is governed by state law. In most states, the woman who gives birth to a child is the child’s legal mother, whether or not she served as a surrogate, and her husband (if she is married) is presumed to be the child’s legal father. Generally, legal proceedings and a court order or judgment are necessary to establish intended parents as a child’s legal parents after a surrogacy birth.

When should legal parentage be considered?
This is one of the first legal issues for intended parents to consider. The law and procedure for establishing parentage can vary from state to state. Generally, but not always, the law of the state in which the child is born will determine the available procedure for establishing parentage. An attorney should be consulted early in the process -- before the parties commit to a surrogacy match or decide where the child will be born -- to determine which laws would apply and the substance of those laws.

How do intended parents become legal parents?
The method for establishing legal parentage will depend on the state where the child is born. It also may vary depending on the specific circumstances of the surrogacy, including the type of surrogacy (traditional or gestational), whether the surrogate is married, and whether the intended parents are a married couple, same sex partners, or a single person. Typically, the process involves either a court order or an adoption, although some states may allow a simple administrative procedure. A good ART lawyer will help explain the available alternatives and provide guidance through the legal process.

Is a pre-birth order available?
Some states specifically allow intended parents to obtain a court order prior to the birth of the child, establishing intended parents as the child’s legal parents. Other states do not allow such a procedure. In other words, availability of this procedure will depend on which state’s laws apply to the surrogacy.

What if the surrogate wants to keep the baby? What if the intended parents refuse to take the baby?
In most cases, the parties to a surrogacy agreement perform exactly as agreed. It is unusual for a surrogate to try to keep a child or for intended parents to refuse to take a child. But the surrogacy agreement should be written to deal with even such unlikely occurrences, and should be very clear about the parties’ rights and remedies in the event that someone violates the contract. On those rare occasions where there is a violation so substantial that it cannot be resolved by mediation or counseling, it may be necessary to hire an attorney to ask a court to enforce the surrogacy agreement.