If you are someone who wants to build a family but are unable to carry a child to birth, surrogacy might be the solution. Advancements in assisted reproductive technology and the laws surrounding ART provide hope and possibilities.
Laurie Goldheim and her staff will work with you and support you throughout your entire journey.
As your attorneys, we can assist you through the surrogacy arrangement; in particular, the gestational surrogacy agreement and Order of Parentage.
A finalized agreement must be in place before the gestational surrogate can begin taking any medications or undergo procedures for an embryo transfer. We will review with you all details and meticulously draft and/or review an agreement that will protect all the parties and the child.
The agreement, among other things, will set forth the clear understanding that the gestational surrogate will carry a child for the intended parents, that the intended parents are the legal parents of the child and will have complete responsibility for the child at the moment of birth, and the gestational surrogate will not attempt to form a parent-child relationship, nor will she have any responsibility for the child, after birth.
Pre-Birth Order of Parentage
A critical aspect of a gestational surrogacy arrangement is to ensure that the intended parents are legally recognized as the legal parents of the child. The laws of each state set forth the process for intended parents to establish their parental rights and terminate the otherwise presumed parental rights of the surrogate (and the surrogate’s husband, if she is married).
On behalf of the intended parents, we can draft and file all the required documents and pleadings necessary to legally establish your parental rights before the baby is born. This process generally begins when the gestational surrogate enters the second trimester of pregnancy. The Court may schedule a hearing prior to issuing a pre-birth order.
If the Court is satisfied that all of the statutory requirements are satisfied, the court will sign an order of parentage naming the intended parents the legal parents of the child upon the birth of the child. We will provide the hospital where the child will be born a copy of the Order of Parentage so that the intended parents are able to have full access to the baby and make all parental decisions for the baby.
What is surrogacy?
What is the difference between traditional surrogacy and gestational surrogacy?
- The primary difference between traditional and gestational surrogacy is the genetic material that is used to create the embryo.
- In traditional surrogacy, the surrogate is also the egg donor. The surrogate’s egg is fertilized using artificial insemination with the sperm of either the intended father or a sperm donor. In traditional surrogacy, the surrogate is, therefore, the biological mother of the baby. Traditional surrogacy is rare today. Many states will not enforce traditional surrogacy agreements because there are serious legal and emotional risks when the surrogate is also the biological mother of the baby.
- In gestational surrogacy, the surrogate does not have a biological connection to the child she carries. A gestational surrogate becomes pregnant with an embryo created through in vitro fertilization. The embryo may be created with the genetic material of the intended parent(s) or the genetic material of a donor. Gestational surrogacy is the most common and preferred type of arrangement by all involved.
What is the difference between an agency surrogacy arrangement and a private surrogacy arrangement?
In an agency surrogacy arrangement, intended parents and surrogates work with a surrogacy agency throughout the entire process. The surrogacy agency connects the surrogate and intended parents to make sure they are a good match and helps manage many of the aspects of the surrogacy journey on behalf of all the parties. Even when working with a surrogacy agency, it is critical that both the intended parents and the surrogate be represented by independent experienced attorneys.
In a private (also known as independent) surrogacy arrangement, intended parents are solely responsible for finding a suitable, healthy surrogate, and managing the entire process. In a private surrogacy arrangement, the intended parents and the surrogate need experienced attorneys who can also help manage all the non-legal details of the journey.
Who chooses surrogacy as a way to become parents?
- People who have struggled with infertility
- Prospective single parents
- Same-sex couples
- Anyone who is unable to safely carry a pregnancy to term
- People who have previously preserved their gametes
How can I find a surrogate?
- Through their own networking and advertising efforts
- With the help of an agency’s matching services. If you have not already identified a surrogate, a surrogacy agency can help you find surrogates who are compatible with your surrogacy plans and each party’s goals and preferences.
Can someone be a surrogate for a friend or family member?
What is the purpose of a surrogacy agreement?
In addition to the understanding of parental rights and responsibilities, the agreement will address many other important issues, including:
- Obtaining medical history and information about the gestational carrier
- Who will make medical decisions during the pregnancy
- Obtaining health and life insurance coverage for the gestational carrier
- Payment of medical bills
- Payment of gestational carrier’s reasonable expenses (including lost wages, legal fees, child-care and maternity clothes) and other compensation, if allowed by state law
- Lifestyle changes for the gestational carrier
- Expectations regarding delivery and birth, including location and presence of intended parent(s) in the delivery room
- Liability for medical complications
- Future contact between the parties
If the surrogate is married, the surrogate’s spouse is also a party to the agreement and must agree to its terms. The spouse will need to acknowledge the responsibilities and risks associated with the pregnancy and confirm that he will not claim parental rights to the child.
Must our surrogacy agreement be signed before our surrogate undergoes medical screening?
What are the requirements to be a surrogate?
Some general requirements to be a surrogate may include that she:
- Be within a certain age range
- Have a healthy BMI
- Be a non-smoker and not use drugs
- Have previously carried at least one healthy pregnancy with no major complications
- Be financially independent
- Have the ability to travel to appointments
- Have a clean criminal history record (no felony violations)
- Complete a psychological evaluation and medical workup
How much communication do surrogates and intended parents have during the pregnancy and after the baby is born?
In most arrangements, the surrogate and intended parents have consistent and regular contact throughout the pregnancy.
In some situations, the surrogate and intended parents develop a strong connection and maintain contact long after the baby is born. Your desired amount of contact should be addressed during the surrogacy planning and matching process.
Are surrogates paid, and if so, how much?
The laws of each state vary as to how and what a surrogate can be paid. It is, therefore, important to have an experienced attorney who will ensure that your agreement meets all the legal requirements and properly protects the rights of both the surrogate and the intended parents.
Whose name goes on the birth certificate?
In some states, the law may require that the surrogate’s name appear on the original birth certificate and that a new birth certificate be re-issued with the intended parents’ names.
Regardless of state law, intended parents and the surrogate can be assured that the intended parents will be the legal parents and that their names will appear on the child’s birth certificate.
Can the surrogate assert her parental rights at some point in the future?
We’re here for you. Please reach out.
As adoption and reproductive law attorneys, The Law Offices of Laurie B. Goldheim serve as a primary resource, counsel and partner to clients who seek to grow their families by contemporary means and methods, as recognized by the courts of New York and New Jersey.