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Q&A Regarding Third Party Family Formation Through Surrogacy

What do I do once I have found a surrogate?

There are several steps that need to be taken before and after you locate your surrogate.  Before your search, you need to have an idea of how much the entire process is going to cost and then assess your financial situation.  You need to know if you are going to use your eggs or need an egg donor.  Do you know the laws in your state, or do you need to go to another state?  Do you have a clinic to assist you and an attorney to assist you with contracts?

After you have educated yourself on these issues, you need to have your surrogate medically and psychologically screened through the clinic of your choice.  Contracts need to be drawn up, and support needs to be in place for the rest of the surrogacy pregnancy. 

Are there legal issues surrounding surrogacy, or can I just orchestrate this on my own without legal counsel?

States regulate assisted reproductive technology procedures in a variety of ways.  For example, some forty-two states have a statutory scheme that addresses artificial insemination.  But only thirty-five of those 42 states clarify parentage.  There are only five states which recognize some regulation of egg donation.  Most states permit reasonable compensation for egg donation, but there is one state which prohibits compensation of any form.

Surrogate or gestational arrangements are addressed to some degree by at least twenty-three states, with one state prohibiting such arrangements.  Health insurance coverage for ART is required in twelve states.  And finally, Federal law provides some regulation of ART laboratories and requires that pregnancy rates for in vitro fertilization and egg donation cycles be reported to the Centers for Disease Control.  Further, professional societies like the ASRM lay out professional standards and guidelines for their professional members.

So you see, there are many issues surrounding assisted reproduction, not the least of which is ensuring that the contract confirms to state law so that the intended parents' names are placed on the birth certificate.  There are independent surrogates who have orchestrated these arrangements on their own.  However, when you research the web you can see many arrangements where carriers have withheld infants or Intended Parents have failed to pay medical bills and/or compensation.  Either of these behaviors are unacceptable.

A surrogacy arrangement is a two sided arrangement where problems can and will arise.  When a problem arises, your best protection will be a contract that provides a road map to resolve that problem.  We believe that the best interests of the parties and the baby is ensured before the transfer by using an attorney who is skilled in this area. 

What are my rights once the surrogate is pregnant?

Your rights are limited by the contract you have with your surrogate. She is pregnant with your baby but retains full control of her body. That is why mutual trust and the legal agreement are so important. 

I want to be a surrogate, what are my rights?

Like the intended parents, your rights are limited by the contract you have entered into.  There are, however, certain things which you shouldn't have to worry about.  First, you shouldn't't have to worry that you are being billed for medical procedures.  Second, you shouldn't't be worried that your credit rating is being affected.  Third, you should not have to worry that your monthly reimbursement for your time and risk will be late or not paid.  You are the surrogate, not an investor in a birthing process.

You should expect to walk away from a successful surrogacy without having to pay anything out of your pocket and having received everything that was promised in the contract.  Conversely, your intended parents should not have to worry that you will act in a manner detrimental to the pregnancy.  Since every Surrogacy Agreement has a section which would require you repay the intended parents for detrimental actions, it is important for you to have an independent attorney review the contract on your behalf.  

How involved will I, the intended parent, be with the growing pregnancy?

You are as involved as you and your surrogate agree to be.  Often times you can be fully involved by attending all doctor's appointments and having several visits with your surrogate and her family.  When time constraints and geographic location make that type of closeness impossible, you can use the telephone and email as alternate forms of communication. 

Can I be present at the birth?

If you and your surrogate have agreed that you can attend the birth then that is what you can expect.  All of these issues are agreed to and placed on your legal agreement before the surrogate goes to transfer. 

What if the surrogate won't give up the child?

You hardly ever hear of a gestational surrogate trying to keep a child. In a gestational surrogacy, with no genetic connection to the infant, there is a presumption that the court will automatically place the baby with the Intended Parents.  A traditional surrogacy is different because the Carrier is biologically related to the child.  A court of law will have to terminate her rights, replacing her name with that of the Intended Mother.  The intended father, meanwhile, being biologically related to the child, will have his name immediately placed on the birth certificate. 

Will the surrogate have any rights to the child once the baby is born?

A traditional surrogate will go through a termination and thus will lose any rights.  In most states, a gestational carrier never had rights because she has no genetic connection to the child. 

How do I tell my child about the surrogate mother?

The answer depends on the child and the family structure.  Just as in an adoption, the determinate will be when the child possesses the maturity to understand the implications of surrogacy.  Most likely it will be many years to come before you are faced with that question. There is a book called Mommy, Did I Grow In Your Tummy? Where Some Babies Come From (Em Greenberg Press, November 1992) that is very good in explaining the different ways that families are made. (Please look at our suggested books under our book review page)

Above are general questions that are often asked by Intended Parents.  If you have any questions that you feel need to be answered please contact a reproductive legal professional!


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Surrogacy Helps Make A Family Grow was written for the children of surrogate mothers. A great book for ages 2-10!

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