Questions to consider when using a surrogate - Part 1

By Harden Jackson, LLC on May 14, 2013
 

Thumbnail image for 1252251_maternity_photos.jpgSurrogacy can be an extraordinary gift to help an individual or couples build their family. However, it is best if some security measures be employed to ensure that all parties have a positive experience. There are many issues to consider when entering into a surrogacy relationship. The topics below are by no means exhaustive, as every surrogacy relationship is different. Your needs as well as the needs of the Surrogate may change during the course of the surrogacy. With that said, it is extremely important to consider the following information prior to entering into a surrogacy relationship. This is part one of a two-part series.

1. Is the surrogate in a "surrogacy friendly" state?
It is extremely important that the surrogate resides in a "surrogate friendly" state. It could prohibit the intended parents from establishing parentage in the child if the state prohibits surrogacy. There are a number of legal issues that concern third party reproduction. The laws regarding third party reproduction vary and are different from one state to another in the United States. Thus, all couples are advised to consult with an attorney who is knowledgeable in the area of reproductive law, within their individual state. And this attorney needs to be legally able to practice law in the state where the surrogate will deliver.
There are very few states that protect the Intended Parents (IP) by issuing pre-birth orders through the court system which places the name of the Intended Parents on the birth certificate prior to the baby being born. This makes the IPs the Legal Parent(s) at birth and they do not have to adopt their baby.
In the United States, the surrogate must live, be a legal resident, and deliver in one of the surrogate-friendly states.

2. Is there a medical necessity to have a surrogate?
Keeping your good figure or a stressful high-powered job are not valid reasons to work with a surrogate mother. Most IVF doctors (and all good IVF doctors) will only work with couples that have a medical reason to do surrogacy. There are sometimes psychological issues that can be included, but we consider psychological to be a medical reason.

3. Do I want to go through an agency, or find a surrogate as an independent?
Evaluate the advantages to working with a reputable surrogacy agency. Choosing surrogacy means you'll need a help to oversee the process. An agency helps by matching you with a surrogate that is a compatible match for you as well as coordinating any screening and legal consultations. An agency also discusses unthinkable issues such as pregnancy termination and reduction, complications, compensation, housekeeping expenses, bedrest, confidentiality issues, etc. They can help with an anxious process by educating you and coordinating all of the overwhelming steps.

4. Does this surrogate have insurance without a surrogacy exclusion?
If her insurance includes a clause that excludes surrogacy pregnancies, then she will need a supplemental insurance policy. If the intended parents do not obtain a supplemental insurance policy, they should be prepared to pay for any expenses during the pregnancy out of pocket, including any costly complications. State or federal insurance, like Medicare, are an absolute bar for surrogacy.

5. Do I need a supplemental insurance policy?
Supplemental insurance is always a good idea to protect intended parents from extremely costly complications that are unforeseen during the pregnancy or birthing process. Although the policies are expensive, it could end up costing intended parents more money if they opt not to obtain a supplemental policy.

If you have questions about surrogacy or other family law matters, please contact Harden Jackson Law.


Remember, these suggestions are not meant to be legal advice. You should consult an attorney to discuss the specifics of your situation.