August 01, 2018 Assisted Reproductive Technologies

How Will My ART Lawyer Help Me with My Surrogacy Journey?

By: Lila Newberry Bradley & Dean Hutchison

Building and growing your family through gestational surrogacy can be overwhelming, but the professionals involved can help you at every step of the journey. Gestational surrogacy in the United States, while complex, can

be surprisingly simple if done right. Your ART (assisted reproduction technology) lawyer is a key member of a team that includes your reproductive endocrinologist, surrogacy and egg donation agency professionals, psychologist, insurance agent, immigration lawyer, estate planning lawyer, and obstetrician. Your lawyer may be the one professional who is present with you at every step along the way, so it is important for you to choose the right lawyer and work closely with him or her. Your lawyer can help you choose the other members of your team.

How Do I Choose a Lawyer?

The field of ART law is very specialized, and it is important for you to choose a lawyer with experience. Seek referrals from your reproductive endocrinologist or from friends who have children born through surrogacy. If you have already chosen a surrogacy matching program, then your agency may provide referrals. Ask prospective attorneys how many surrogacy matters they have handled in the past year, and ask them to provide you with names of previous clients who are willing to serve as a reference. Inquire whether the lawyer is a member of professional organizations relating to surrogacy and if he or she attends conferences to keep current on developments in the law around the country. Expect the attorney to provide you with detailed and specific information about fees and expenses for legal work.

What Does My LAwyer Need from Me?

Your lawyer needs complete and total honesty and candor from you. Remember that your lawyer will hold everything you tell him or her in complete confidence until you give permission to disclose. If your lawyer doesn’t know everything, he or she can’t properly advise you. If you are concerned that there are things about your financial condition, your family relationships, or your background that will make the surrogacy journey more difficult or impossible, you must tell your lawyer and let the lawyer advise you on how to deal with these matters. Failure to disclose information could cause serious consequences for you in the future. Your lawyer is trained to be a creative problem-solver, so let him or her help you with your concerns.

Your lawyer needs to know if you are married or partnered with someone who will (or will not) share parental rights or responsibilities with you. Always update your lawyer if your relationship status changes during the process.

Your lawyer also needs to know of any financial concerns that you may have about the anticipated costs and expenses ahead. Your lawyer will help you analyze the insurance coverage for the surrogate and for your new baby. Your lawyer will review the terms of the escrow that will hold your money during the surrogacy to ensure that you are protected.

Your lawyer needs you to be responsive and prompt, and you have a right to expect the same in return. Your lawyer also needs you to be reasonable in your demands and expectations. Gestational surrogacy is a complicated process, and your lawyer will be working with the other professionals on your team. They need you to trust and understand that they are dedicated to your best interests, but they cannot control the pace or responsiveness of the other parties, and they definitely cannot control the court’s responsiveness.

Who Drafts the Contract?

Some people believe that lawyers simply plug names into a form and generate a contract, but you will find that your lawyer will need to draft a detailed contract that is tailored specifically to your surrogacy arrangement. It is your responsibility to read the draft and discuss your questions about this important document with your lawyer. Your lawyer will then send the draft to the surrogate’s attorney, and there may be some negotiation over the terms. Your lawyer’s responsibility to you is to provide advice and counsel as you finalize a contract that protects your interests while respecting the interests of the surrogate.

Do We Go to Court?

Depending on the state where your child will be born, your lawyer may petition the court for a pre-birth order that declares that you are the legal parents of the child and that confirms that the gestational surrogate has no rights or responsibilities to the child. In some states, the court will issue the order after the child’s birth. Your lawyer will need to provide documentary evidence to the court to convince the judge to issue the order, and your lawyer’s knowledge of the state’s laws and the customs and rules of the local court are critical.

What Else Do I Need to Think About?

It is important to think about estate planning for your family, and your lawyer will need to know if you have already written a will. It is important that you have guardians identified for your child, in case something were to happen to one or both of you while your surrogate is pregnant. You should create these with an attorney in your home state or country and also speak to an attorney in the surrogate’s state to see if other guardianship documents should be prepared to comply with local laws.

What If I Am Not a U.S. Citizen or Permanent Resident?

First and most importantly (and most basically), you must provide your actual legal names. This may sound obvious, but many intended parents fail to use their full legal names on their agreement for services with their surrogacy agency or their agreement with their gestational carrier. This can lead to major issues when applying for passports or registering the child in your home country. You should provide your lawyer with a copy of your passport or other form of identification at the outset of the case.

Second, your lawyer needs to understand your current citizenship status and residency status in your home country and, in turn, the citizenship you intend for your future child(ren). Under the U.S. Constitution, your child will be a U.S. citizen upon birth in the United States, but gaining citizenship and parentage rights will depend on the laws of your country of citizenship and/or the country you reside in. You will need legal counsel in the country where you intend to reside and in the country where you want the child to have citizenship. Sometimes a separate immigration specialist may be necessary as well. The attorney in your home country will be able to provide important information to your U.S. lawyer about how the U.S. legal work should be completed, how the birth certificates should appear, whether the surrogate’s marital status is important, whether visits to the U.S. consulate are necessary before leaving for home, and whether the surrogate and/or her spouse will need to appear at the consulate. It is very important to get the attorney from your home country involved in the process early, as the most critical part of your journey is the initial match with your surrogate. The state where your surrogate resides and plans to deliver will have a specific legal process to establish your parentage rights and may only allow birth certificates to appear a certain way, meaning that you may not be able to match with surrogates in some U.S. states. It is imperative that your lawyer know that proper process from the outset so that your match is correct and you do not encounter issues when returning home. Critical mistakes can be made very early in your journey, so it is important to get it right from the beginning.

For intended parents living outside the United States, the topic of health and disability insurance may be the most confusing. The U.S. system is very different from yours, and its intersection with surrogacy is even more complex. The public and/or private health insurance plan that you have in your home country will rarely cover your children born in the United States. It is worth reviewing your existing health insurance and travel insurance and speaking to your attorney in your home country. There are also policies you can purchase in the United States for newborns during the pregnancy. These plans tend to be expensive but will give you extra security.

Whether you get a pre- or post-birth parentage order for your parentage rights, there will be a multistep process at the end to get your birth certificates and prepare to return home. You should expect to be in the United States a minimum of two to four weeks post discharge from the hospital before leaving for home. This will depend a lot on where the baby is born (some states will have birth certificates ready in two days, while some can take up to two weeks). It will also depend on what your home country requires, as some will require visits to your country’s consulate in the United States, while others do not require you to do anything until returning home. The U.S. passport process is simple but will take time as well. It is better to leave yourself extra time so you don’t add further stress to the process.

 

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Lila Newberry Bradley

Partner, Claiborne | Fox | Bradley LLC

Lila Newberry Bradley (lila@gababy  law.com)  is  a  partner  with  Claiborne  |  Fox  |  Bradley  LLC in Atlanta. She represents clients who are creating and growing families through adoption or assisted reproduction. She is the former director of the Atlanta Volunteer Lawyers Foundation’s Children’s Law Programs and the author of Family Preservation in Georgia: A Legal Guide to Preventing Unnecessary Removal to State Custody. She was also a visiting scholar with the Barton Child Law and Policy Clinic of Emory University School of Law, providing training to attorneys on the legal aspects of family preservation.

Dean Hutchison

Attorney, Weltman Law

Dean Hutchison (dhutchison@weltmanlaw.com) is a Boston attorney with Weltman Law and Director of Legal Services at Circle Surrogacy, where he helps manage the legal portion of intended parents’ journeys through the surrogacy process. His practice focuses on domestic and international family law issues concerning surrogacy. He is a frequent presenter on family law, parentage, and international surrogacy issues, and he is the Vice Chair of the ABA’s ART Committee.