What Parents and Surrogates Can Expect fromthe Legal Process

Negotiating contracts and petitioning for court orders may not be fun, but the legal aspects of the surrogacy process are absolutely critical to the entire journey.  At the end of the day, we need to make sure that everyone is on the same page about medical issues, decision making, compensation, and responsibilities throughout the pregnancy, and that parents have full rights to their children at the end.

This post focuses on the two key legal pieces of the surrogacy journey: the Gestational Surrogacy Agreement (GSA) and the parentage process.  Please check back for future posts about donation agreements, embryo disposition agreements, and estate planning for surrogacy.

The GSA:  What’s Included and What Should I Expect?

Let’s talk contracts.  First, the parties each have a lawyer representing them.  The lawyers are independent from each other and from Brownstone, to avoid conflicts of interest and to make sure your lawyer has your best interests at heart.  (The one exception to this rule is that spouses/partners may be represented together.  If you are partnered, your partner will have to sign the agreement.)  We will provide you with referrals to multiple experienced surrogacy lawyers.  These lawyers play a crucial role because everyone wants to make sure the surrogacy contract is valid–this contract and what it says about the parties’ intentions lies at the core of the parentage process outlined below.  At least one lawyer, but ideally both, should be intimately familiar with the surrogacy laws in the surrogate’s state.

At its absolute core, the GSA makes clear that all parties intend that the parents will be established as the legal parents of the child and that the surrogate will have no legal rights or responsibilities to the child after delivery.  But the GSA also covers a lot of topics to make sure all parties are on the same page, including:

• • • • • The Anticipated Medical Process–commitment to a number of transfer attempts, number of embryos per transfer, pregnancy and IVF risks, agreement to follow physician’s orders, restricted activities, etc.
        • Compensation and Benefits–base and ancillary compensation, potential compensation and reimbursements, childcare, lost wages, and pumping, health and life insurance, psychological support, etc. 
        • Other areas of Agreement–termination and selective reduction, blackout dates and travel restrictions, COVID-19 vaccination, anticipated labor and delivery plan, etc.

Brownstone will have already discussed with you the vast majority of the items in the GSA, as they are important matching criteria.  But there are many scenarios and “what ifs” that are addressed in the GSA for protection of all the parties, and issues may arise during the contracts process where parent and surrogate are misaligned.  Usually the parties and their attorneys can craft a solution that works for everyone, but sometimes a difference of opinion is significant enough to require a match break and we’ll go back to the drawing board to match you again.

In terms of process, the parents’ attorney usually drafts the initial contract and sends it to the parents for their review first.  When the parents approve of the initial draft, their lawyer will send it to the surrogate’s lawyer for their review with the surrogate.  The surrogate and their lawyer will then send back the contract to the parents’ attorney with suggested revisions and edits.  The contract moves back and forth until all parties and their lawyers are comfortable with the terms (usually only one more round of back and forth) and the final form is then circulated for execution.  When the contract is fully executed (which means signed and notarized, typically), the lawyers will send a letter to the IVF clinic providing “legal clearance” to proceed to an embryo transfer.

The Parentage Process

The whole surrogacy process hinges on our ultimate ability to ensure that the intended parents become the legal parents.  The process for securing parental rights depends on the state in which the surrogate lives and in which the baby will be born.  And, in turn, each state’s laws and practices are unique—which is something that Brownstone takes into account early on when matching parents and surrogates.  But speaking more generally, here’s what you can expect from the parentage process:

First, many states allow for something called a pre-birth order (PBO).  This is a court order issued before the child’s birth that ensures that the surrogate is freed of any legal responsibility for the child and names the intended parents as the legal parents and guardians of the child from the moment of birth.  The lawyers will usually file the necessary paperwork towards the end of the second trimester.  Because of the order the parents’ names will go on the birth certificate, although it is important to note that it is the court order that carries legal weight, NOT the birth certificate.  Birth certificates are administrative documents.

Second, some other states provide for a similar process completed after the child is born.  In this case, the document is called a post-birth order.  Despite the moniker, the paperwork is still drafted by the attorneys before birth and the intended parents are the guardians of the child at the time of birth.  As scary as that change from “pre” to “post” may seem, intended parents should not hesitate to work with an otherwise ideal surrogate from a post-birth order state.

Third, in some scenarios, a second-parent or step-parent adoption may be recommended as well to protect the legal rights of a non-genetic parent.  This is especially common for international intended parents.

Whichever route your lawyers recommend, it feels unfair that intended parents should have to jump through additional legal hoops to be declared the parents of their own child.  You’re right–it IS unfair.  But that’s the reality of our legal system and what is most important is that we make sure the legal aspects go smoothly and that surrogates and intended parents alike can move on with their lives confident in their legal status.