Planning a surrogacy is just the beginning of a journey that will hopefully have a beautiful, happy ending.
Every surrogacy plan is different – you may choose to self-match or work with a surrogacy program or you may have a surrogate in Virginia or in another state. Every state has its own surrogacy laws, and they can vary quite a bit. Without an attorney helping you through the process, you could become saddled with legal consequences you did not intend.
A surrogacy attorney can make the surrogacy process less stressful, including:
1. Surrogacy Laws and Regulations
One of the decisions that needs to be made during the contract drafting process is what state law will apply and how parentage will be legally secured. Surrogacy laws differ, and some states may make it more difficult to go through the process. You must know the legal process for the state you choose.
A surrogacy attorney can compare state laws to determine which state’s laws and regulations are easier for you and the surrogate to navigate. Your attorney will also help you through the legal process and make sure you are aware of any laws that will affect the decisions you need to make during the surrogacy as well as how payments will be characterized.
2. Legalities
A surrogacy attorney also ensures that the process you choose adheres to the surrogacy laws, including:
- Ensuring that the contract complies with the chosen governing state law
- That the parties will not encounter any insurance coverage issues
- Filing the necessary legal documents to ensure the legal parentage of the child
- Being available to you should you have questions, concerns, and/or legal challenges during the process
Having someone you can turn to for legal advice throughout your surrogacy journey makes certain decisions easier because you can make them based on law instead of emotion.
3. Contracts
Before any medical process takes place, you need a surrogacy contract. The contract states the rights of the surrogate and the intended parents so that both sides are protected. The contract covers your entire surrogacy journey, including:
- The surrogate’s reimbursements
- Expectations for the surrogate and intended parents including confidentiality, form and extent of communication, and the continued exchange of information
- Responsibilities for the surrogate and intended parents
- Termination of the pregnancy (in the event of a medical problem or emergency with the fetus or the surrogate)
- Liabilities and risks for the surrogate and intended parents
- Abortion and selective reduction issues
The contract usually covers additional items, though these are some of the most important. You and your attorney can go over what your expectations are and add items to the contract.
Even if you know your surrogate – or if you are the surrogate and know the intended parents – a contract is required for every surrogacy journey. With a contract in place the surrogate and the intended parents know ahead of time what each side expects.
4. Parental Rights
A surrogacy contract ensures that there are no misunderstandings between the two parties regarding parental rights. As with any pregnancy, there are risks involved. You might want to terminate, and the other party might refuse.
A contract addresses difficult decisions and situations such as whether the surrogate should stay on life support if she is in a car crush and the fetus is still viable. It addresses what activities are permitted and not permitted by the surrogate and the details regarding her prenatal care. Outlining the attendant rights and responsibilities ensures that both parties understand their roles in the surrogacy process and leaves less room for disagreements.
While major complications are usually very rare, they can happen, and the surrogates’ and intended parents’ rights must be protected. In some cases, the risk might be to the fetus, which often presents a difficult subject to broach. The surrogate contract outlines the path for a variety of circumstances that could arise.
5. Protecting Your Interests During the Surrogacy Process
Finally, the rights of all parties need to be protected and all parties need separate, independent counsel. Because the surrogacy laws are different for each state, your surrogacy attorney will include steps that protect the rights of all parties.
Even though in most cases the surrogate is carrying a baby that is not genetically related to her, in some instances a true surrogate might be used which can be a much riskier arrangement. In situations where donor embryo is used, safe guarding the intended parent’s parentage may require additional provisions or procedural safeguards.
Start Your Journey with an Experienced Surrogacy Attorney
If you are considering using a surrogate, a surrogacy attorney will help you understand the process, your rights, and the risks involved. Once you know more about surrogacy, you will be ready to move forward and begin looking for a surrogate, whether you choose to take the independent surrogate route or work with a surrogacy program.
To learn more about the surrogacy process, please contact us today.