Surrogacy

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.

Surrogacy arrangements are a beautiful way to create families. But, with such arrangements, there are also legal risks for the parties. That is why it is important to have an experienced attorney who can advise and guide you every step of the way. The Law Offices of Laurie B. Goldheim has the legal expertise and the passion to help make your dreams a reality.

The Law Offices of Laurie B. Goldheim will work with you and support you throughout your entire journey.

As your attorneys, we can assist you through two of the main stages of a surrogacy arrangement.

The Agreement

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 the parties.

The agreement, among other things, will set forth the clear understanding that the gestational surrogate will carry a child for the intended parents, 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

Generally, if a woman gives birth to a child, she is presumed by law to be the parent of that child. The parties to a gestational surrogacy arrangement clearly understand that this is not the intention. A critical aspect of a gestational surrogacy arrangement is that the law recognizes the intended parents as the legal parents of the child. and sets forth the process for intended parents to be able to establish their parental rights and terminate the otherwise presumed parental rights of the surrogate (and the surrogate’s husband if she is married).

We will draft and file all the required documents and pleadings necessary to legally establish your parental rights. This process generally begins when the gestational surrogate enters the second trimester of pregnancy. The Court will typically 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, upon the child’s birth, are recognized as the legal parents and are able to have full access to the baby and make all parental decisions for the baby.

Many states require that the intended parent and gestational surrogate have independent legal counsel. Even if not required, we urge all parties to have their own attorneys.

The Law Offices of Laurie B. Goldheim cannot represent both the intended parent(s) and the gestational surrogate in the same agreement.

What is surrogacy?
Surrogacy is both a legal and social arrangement between intended parents and a woman, who becomes pregnant through an embryo transfer and carries the pregnancy for the intended parents. In a surrogacy arrangement, the surrogate does not desire or intend to have any relationship with the child born out of the surrogacy arrangement. Her desire in carrying the child is to give birth to a child for the intended parents. It is the intention of all the parties that the intended parents are the only parents of the child and will assume full parental rights.
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 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?
Prospective parents can choose a private or an agency surrogacy journey.

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 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 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?
Surrogacy is an increasingly common choice for parents looking to grow their families. Some people who might consider working with a surrogate are:

  • 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?
Intended parents may find a prospective surrogate in two ways:

  • Through their own networking and advertising efforts or;
  • 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?
A surrogacy arrangement with a friend or family member is called “identified surrogacy.” Identified surrogacies can come with unique emotional challenges, so it’s important that everyone involved receives counseling and has a legal contract, no matter how much they love and trust one another. This helps keep the existing relationship healthy and happy.
What is the purpose of a surrogacy agreement?
The purpose of a surrogacy agreement is to establish a clear understanding of the intentions of the parties and the responsibilities they have to each other. The surrogacy agreement will clearly state that the 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 that the surrogate will not attempt to form a parent-child relationship with the child.
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?
Fertility clinics and physicians require a surrogacy agreement to be in place before a surrogate begins injectable medications. It is best for both the intended parents and the surrogate to have a surrogacy agreement in place as soon as possible.
What are the requirements to be a surrogate?
While many women have hearts generous enough to be a surrogate for someone else, only some women will also meet the medical and legal requirements to become a surrogate. These screening processes are there for the protection of the surrogate herself, as well as to protect intended parents and any resulting children.
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 does 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?
This depends on the individual relationship and the preferences of the parties.

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?
Surrogacy arrangements can be “compassionate or altruistic” or “compensated”.

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.

It’s a common misconception that surrogates get rich from surrogacy. But, after being reimbursed for the pregnancy expenses such as doctor’s bills, the average base compensation for a first-time surrogate is about $25,000 — enough to set aside for a new home or her child’s college fund, but not exactly a fortune. Clearly, they’re not in it for the money.

Whose name goes on the birth certificate?
The names that are entered on the baby’s original birth certificate depends on the surrogacy laws of each state. Many states allow intended parents to file a pre-birth order which instructs the hospital to enter the intended parents’ names on the original 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?
The purpose of the surrogacy agreement is to allow each party to state their intentions and to clearly state that the surrogate DOES NOT intend to have parental rights to the child and DOES NOT wish to have physical or legal custody of the child. In most cases, during the pregnancy, the attorney for the intended parents will prepare and file for a pre-birth order with the court to declare legal parentage of the intended parents. This process legally affirms the parental rights of the intended parents.

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.