Contracting for a Surrogate/ Carrier

Generally, there are two steps to the surrogacy or gestational carrier process in Virginia. The first is contract drafting. The second is amendment of the birth certificate. If the situation involves a true surrogate (who is carrying her own genetic child with Intended Father sperm) and the intended parents are a married heterosexual couple, then the intended parents should consider the pre-birth order process (which, although more cumbersome and expensive, provides some limited protection for the intended parents). Otherwise, the pre-birth Order process is not a recommended route as discussed in more detail below.

A. THE CONTRACT PHASE (PHASE ONE).

At the Adoption & Surrogacy Law Center, whether we represent the intended parent(s) or the carrier-surrogate, we currently charge a flat fee of $2,000 for drafting of the contract and review of the carrier-surrogate’s health insurance policy (we do give a discount in situations where the carrier is a family member or best friend and the reimbursement payment amounts are minimal). This fee amount does not include the cost of separate representation during the contract phase for the surrogate/gestational carrier (usually $1000 to $1,500). Sometimes a waiver of the sperm quarantine may also be required and this is included. The basic steps are:

(1) We send out our retainer letter agreement and request a retainer in the amount of $2,000.

(2) We send questionnaires for the intended parent(s) and the surrogate/carrier to complete. These will assist us in drafting the contract and directing the parties towards reaching agreement on the various terms of the contract.

(3) You furnish us with any medical provider information, especially any agreements you have entered into, or anticipate entering into, with the medical provider(s) that will be performing the assisted reproductive technology procedure.

(4) The surrogate/carrier furnishes us with a complete copy of her health insurance policy to review (we need the entire plan or policy – not just a summary plan description).

(5) After receiving the completed questionnaires and medical provider information and reviewing the health insurance coverage (assuming we have the complete policy), we draft the contract for our client’s review and approval first. Only then is it sent for the other party’s review along with their attorney. We also will provide names of recommended attorneys for the other party. Note that the intended parents generally pay for the cost of the surrogate/carrier’s attorney as part of the overall contractual arrangement and that this is a permissible payment under Virginia law. In nearly every situation all parties are represented – there are very few and rare situations where a party might go unrepresented and it is not recommended.

(6) After receiving feedback and working out any terms that are subject to dispute between the parties, we finalize the contract and finish reviewing and/or integrating any medical provider agreements as may be necessary.

Different fee amounts are charged if another attorney is drafting the contract and/or in situations where the contract needs to be revised or amended or rewritten to comport with Virginia law.

B. THE HOSPITAL AND BIRTH CERTIFICATE AMENDMENT PHASE (PHASE TWO) FOR MARRIED INTENDED PARENTS WHERE THE CHILD IS BORN IN VIRGINIA.

We currently charge a flat fee of $1500 plus $75 costs (total of $1575) for one child for the hospital and birth certificate amendment process. We offer discounted rates for multiple children. Note that, although it is called a “birth certificate amendment process,” per the agreement, no birth certificate is actually ever issued with the carrier’s name on it. Instead, only an application for the birth certificate is filled out at birth listing the carrier or surrogate – but the only birth certificate then actually issued is the one with the names of the intended parent(s) on it. As part of the flat fee, we also provide assistance with the hospital process and procedures prior to the birth as well as at the time of birth. Note that we actually start this phase two process about three to five months before the anticipated birth.

(1) Again we send a retainer letter agreement and request a retainer.

(2) Once retained, we provide the necessary hospital forms and also send out instructions regarding the hospital and birth certificate amendment process. After receiving the necessary information, we complete the pertinent amendment and consent forms to be submitted to our state department of vital statistics.

(3) We obtain the necessary doctor’s affidavit and determine if DNA testing will be necessary (this generally hinges on the level of the doctor’s conviction).

(4) We circulate the amendment and consent forms for signature (note that in Virginia, the surrogate/carrier cannot sign until the child is 3 days old although the intended parents may sign immediately after birth).

(5) The parties must have an agreement in place that comports with Virginia law.

(5) We submit the requisite executed forms, along with a copy of the surrogacy-gestational carrier contract and the doctor’s affidavit, immediately upon receipt.

(6) A new birth certificate is issued within eight to sixteen weeks of submission. There are certain ways to expedite the process if necessary (for example, if the birth certificate is needed to obtain a passport or to secure health insurance). The old application for birth certificate is placed under seal. Provided that no one ever requests that a birth certificate based on the old application be issued, then the only birth certificate issued is the one listing the intended parents.

C. THE PRE-BIRTH ORDER (ALTERNATE PROCESS – PART OF PHASE ONE) FOR MARRIED INTENDED PARENTS.

Note that there is a process in Virginia for obtaining a pre-birth Order that orders that the intended parents be named on the original application for birth certificate and on the original subsequently issued birth certificate. However, the process is rarely used as court approval and home studies on both the intended parents and the surrogate-carrier are required in addition to the drafting of the contract. Moreover, the contract must be in place BEFORE the court hearing AND the contract needs to be court approved before the medical procedure takes place. Thus it costs at least on average $4000 to $5000 in legal fees (in addition to the home study cost which runs about $2000 to $2,500) before you even have a pregnancy. Thus, this route is more expensive and cumbersome BUT somewhat better protects the Intended Parents, and is therefore recommended, in situations involving a true surrogate (who is carrying a child formed with her own egg).

D. THE BIRTH CERTIFICATE AMENDMENT PROCESS (PHASE TWO) FOR SINGLE PARENTS WHERE THE BIRTH IS IN OR OUTSIDE OF VIRGINIA AND FOR MARRIED INTENDED COUPLES WHERE THE BIRTH OCCURS OUTSIDE OF VIRGINIA.

For situations where there is one single intended parent and/or the child is born outside of Virginia, then we must use a different process for amending the birth certificate. In such instances, the parties must have DNA testing done in order to establish that at least one intended parent is the genetic parent of the child. Then we utilize Virginia’s parentage act to file a petition with the court and have an Order of Parentage entered. The Order of Parentage is then used to amend the original birth record or application. Where necessary, a step-parent adoption may be done as to the non-genetic parent.