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Assisted Reproductive Technology Law: 10 FAQs

Is surrogacy legal everywhere in the United States, and, if not, what states have the most favorable laws governing surrogacy and parentage?

Surrogacy is legal and practiced in most states. Long-standing bans on compensated surrogacy still exist in New York and Michigan, these being the legacy of a backlash resulting from the notorious “Baby M” case of 1986, when surrogate Mary Beth Whitehead refused to relinquish custody of the baby daughter conceived using the intended father’s sperm and her own egg. New Jersey and Washington, D.C., recently overturned surrogacy bans, and New York appears poised to legalize surrogacy in 2019, which would leave Michigan as the lone U.S. state with a surrogacy ban in place. Bucking the trend toward allowing surrogacy, in 2016, Louisiana chose to ban compensated surrogacy, further limiting access to noncompensated surrogacy to only heterosexual intended-parent couples using their own genetics.

The best state to have your baby via surrogacy depends on your specific circumstances, the laws of your state, and the nature of your concerns. For example, when it comes to recognition of intended parents’ status as legal parents, in assisted reproductive technology (ART) law, the “gold standard” is for intended parents to be legally recognized as the baby’s parents from the moment of birth, with both intended parents’ names listed on the birth certificate. Many states allow intended parents to obtain a court order establishing them as legal parents before their baby is born, but others will not issue an order of parentage until after the birth. Each situation is unique, and the most important thing for you will be that you are represented by legal counsel who knows and understands the laws in the jurisdiction where your baby will be born and the jurisdiction where you and your family will reside.

What should be included in a surrogacy agreement?

The purpose of the surrogacy agreement is to allow each party to state their intentions and their responsibilities to one another. Most importantly, the agreement should clearly state that the surrogate is not, and does not intend to be, the parent of any children resulting from the IVF procedure and does not wish to have physical or legal custody of any resulting children. Likewise, the intended parents should state their intention to accept full parental rights and obligations for the baby or babies born via the surrogacy.

The surrogacy agreement should also cover medical issues such as:

  • abortion,
  • selective reduction,
  • how medical emergencies will be handled,
  • how medical decisions will be made,
  • embryo transfers, and
  • the surrogate’s health care.

Other provisions should deal with the jurisdiction governing the agreement—usually the jurisdiction where the surrogate will give birth—and:

  • surrogate conduct during pregnancy;
  • intended-parent contact during pregnancy;
  • financial terms and escrow arrangements; the intended parents’ relationship;
  • changes in circumstances, such as a surrogate’s divorce or move to a different state;
  • post-birth contact; insurance coverage;
  • dispute resolution and breach of contract; and
  • privacy, confidentiality, and social media use.

The agreement includes the surrogate’s acknowledgement that she is fully informed of the medical procedures and potential risks and that all parties are entering the agreement willingly.

What would happen if the surrogate changed her mind and asserted parental rights to my baby?

Today, incidents of surrogates changing their minds are extremely rare. When disputes do arise, courts in most states tend to uphold the agreement.

One of the few recent examples involved surrogate Melissa Cook, who carried triplets conceived via an egg donor and the intended father’s sperm. Ms. Cook refused a request that she undergo a selective fetal reduction to a twin or singleton pregnancy, which they had agreed to in their surrogacy contract. After the triplets were born, the court denied Ms. Cook’s custody suit and awarded custody of all three to the intended father, noting that the babies would not exist had he not gone through considerable effort and expense to conceive.

Our surrogate agreed to reduce the number of embryos in the case of multiples or undergo an abortion should that become necessary for medical reasons. How can we be sure she will honor the agreement should the worst happen?

There is no cut-and-dried answer to this question. If the surrogate were to change her mind, refusing to abort or reduce the number of embryos for medical reasons, for example, it would constitute a severe breach of contract. Consequences could be life-changing; one example might be liability for medical bills for a child born with a disability. There is no way to predict how a court would rule, and outcomes would likely vary from jurisdiction to jurisdiction. However, it is unlikely that a court would force a surrogate to terminate a pregnancy by issuing an injunction or a similar court order.

Fortunately, by the time you arrive at this fork in the road, your surrogate will have gone through multiple screenings, including mental health screenings, background checks and insurance reviews. In most cases, the surrogate is eager to move forward and committed to the process and to the terms of the agreement. That’s why it is important to be careful and thorough during the matching process and to be sure you and your surrogate are on the same page on this and other issues before you even get to the stage of signing an agreement.

What should be included in an egg donor agreement?

An egg donation agreement exists so that all parties can state their intentions and acknowledge their legal responsibilities to one another. The agreement will also clearly state that the donor does not intend to parent any child conceived by her egg and does not wish to have physical or legal custody of any eggs harvested during the retrieval process, embryos, or the child or children born as a result of the procedure.

The egg donor agreement also will cover:

  • which jurisdiction will handle disputes,
  • any physical examinations or screening required of the donor,
  • donor conduct in preparation for the egg retrieval procedure,
  • the intended parents’ relationship,
  • custody/guardianship arrangements in the event of the intended parents’ death,
  • acknowledgement that the donor is fully informed of potential health risks and enters the agreement willingly,
  • disposition of any excess or unused eggs or fertilized embryos,
  • financial terms,
  • the process for dispute resolution and breach of contract, and
  • confidentiality and privacy rights.

Should an egg donor always remain anonymous? What if my child wants to contact her egg donor someday for personal or medical screening purposes?

Historically, egg donors have remained anonymous, and in the United States, donor anonymity is the default in egg donor agreements. A growing number of clients, however, are asking about possible future contact with egg donors, and the issue of donor contact is addressed in all egg donor agreements. Parties may agree to an exchange of medical information, should it be necessary in the future, stipulating that no identifying information be included.

But what if children conceived using donated eggs one day have questions and want to know more about their origins, aside from medical considerations? What rights do they have? An increasing number of intended parents are considering including in their egg donor agreement the opportunity for a meeting with the donor when the child reaches a certain age or for an anonymous exchange of information.

In addition to surrogacy and donor agreements, what other legal arrangements do I need to make sure my new baby or babies and my parental rights are legally protected?

Once you are a parent, you become responsible for the care and wellbeing of your child and for being as prepared as possible even for unforeseen circumstances. This extends to estate planning, inheritance, and guardianship arrangements in the event of your death or inability to care for your child.

In the era of assisted reproduction, intended parents also must consider inheritance and parentage issues related to frozen, or cryopreserved, eggs, sperm, or unborn embryos. Reputable clinics will require intended parents to sign an agreement governing the disposition of genetic material and unborn embryos should the intended parents die, separate, or divorce. Most U.S. courts uphold such disposition agreements. Arizona is a notable exception to this rule. A new law requires courts in divorce cases to award any existing frozen embryos to the “spouse who intends to allow the invitro human embryos to develop to birth,” overruling any prior disposition agreement between the intended parents.

As an intended parent, what types of insurance coverage will I need to obtain?

I always begin any conversation about insurance with this disclaimer: I am neither an insurance expert nor qualified to give advice on insurance. However, as an attorney who has provided ART legal services to thousands of intended parents, and as a parent via egg donation and surrogacy, I can tell you what types of insurance you are likely to need and some questions you should ask of your insurance professional.

Egg donor insurance: Typically, parents pay IVF clinics directly for egg donation procedures, which includes insurance covering the donor in the event of complications.

Surrogate health insurance: Surrogates are usually expected to have or obtain a personal health insurance policy to cover the costs of prenatal care and birth.

Surrogate life insurance and/or disability coverage: Some surrogacy agreements provide for intended parents to purchase life insurance against the unlikely event the surrogate should die from complications of pregnancy or birth. Similarly, some agreements provide for intended parents to insure the surrogate against potential disability or loss of wages due to mandatory bedrest or other complications.

Newborn health insurance: The responsibility for newborn health insurance covering the child lies with the intended parents. While relatively easy for U.S. parents, this can be a challenge for parents who live outside of the United States.

 

What is the parental establishment confirmation process or “pre-birth order,” and why do I need one?

When a woman gives birth, she is presumed to be the child’s legal mother. When a child is born to a surrogate, court intervention is required to establish the intended parents as the child’s legal parents. In most parts of the United States, it is possible to obtain a pre-birth court order establishing the intended parents as legal parents and rebutting the surrogate’s (and if she’s married, her husband’s) parental rights.

In some states, the law requires that we file for the parental order after the birth and attend a court hearing. Barring any extraordinary circumstances, a pre-birth order is generally issued two to five weeks after the matter is filed, and in “post-birth” states, a post-birth order is generally issued the same day as the post-birth hearing. Certified copies of the parental order confirming your legal rights as a parent or parents to your baby are generally available to you shortly thereafter.

What is a “second-parent adoption,” and why do we need one?

“Second-parent adoption” is when a parent who is not biologically related to the child adopts the child in order to establish or confirm legal parentage. The second-parent adoption procedure ensures that the parental rights of the nonbiological parent are recognized regardless of where the family travels or resides.

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Richard B. Vaughn

International Fertility Law Group (IFLG)

Los Angeles, CA