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May 06, 2024 ART LAW & PRACTICE

Financial Stability and Surrogacy Understanding and Navigating Economic Considerations for Gestational Carriers

Sarah E. Wilson

A surrogacy journey begins long before contracts are signed or medical procedures begin. It commences with an evaluation of the parties to match intended parents and a gestational carrier who share common values and motivations to set up a surrogacy journey for the best possible outcomes from the start. As a gestational carrier begins to navigate the beginning stages of embarking on a surrogacy journey, the fertility clinic, mental health professionals, the surrogacy matching program (as applicable), attorneys, and other professionals may be involved in evaluating her eligibility to become a surrogate based on a variety of criteria. An important aspect of a gestational carrier’s eligibility—aside from medical factors—is her financial stability and the potential economic impact of this life-changing journey. A thorough assessment of the gestational carrier’s financial situation at the outset may help to avoid potential issues down the line after the parties have invested considerable time and financial resources to move forward with a particular match.

Gestational Carrier’s Financial Health and Motivations

It is vital for professionals involved at the inception of a surrogacy journey to understand a gestational carrier’s financial health. This evaluation should ascertain whether a gestational carrier can manage regular monthly expenses with her existing household income. Although an important aspect of surrogacy from a gestational carrier’s perspective is to ensure she is not expending her own resources to support a family’s desire to have a child, her motivations for becoming a gestational carrier should extend beyond the monetary component. Professionals should be wary of financial motivations that supersede the inherent altruistic nature of gestational surrogacy. A journey could start off with glaring warning signs if a gestational carrier is moving forward for the purpose of making ends meet to cover regular monthly expenses, or more concerning yet, to fund a significant future expense such as her own fertility care.

Government Assistance Programs

The American Society for Reproductive Medicine (ASRM) publishes recommendations and guidance for third-party reproductive technology professionals to follow as best practices. ASRM’s Recommendations for Practices Using Gestational Carriers: A Committee Opinion (2022) specifically addresses government assistance programs and the psychological implications to a gestational carrier candidate receiving this type of assistance. Through the psychological evaluation and recommended assessment of coercion, it may be identified that a candidate is financially vulnerable and pursuing surrogacy primarily as a means to make financial ends meet. A candidate who is screened by an agency will likely be disqualified based on this ASRM guidance; however, this issue may not be considered until further in the screening process for an independent journey, leading to wasted time, money, and emotional energy.

Impact on Existing Employment

Understanding a gestational carrier’s occupation and job responsibilities is also crucial. Certain jobs may conflict with standard terms of a GCA’s restricted activities, such as exposure to harmful substances. The possibility of working from home, job security in case of medically advised rest, and the impact on household income are all factors that require careful analysis. Although a well-drafted GCA will address various situations that could implicate lost wage reimbursement for the gestational carrier, certain safeguards may be drafted into the GCA to limit liability to the intended parents, leaving a gestational carrier in a financially vulnerable position should an unexpected situation arise. For example, in the event the gestational carrier is placed on physician-ordered bed rest early in the pregnancy, she may be unable to continue her regular employment. Even if her job is ultimately protected, she may face an extended period of time without regular pay. For this specific scenario, short- or long-term disability policies may play a significant role in protecting financial liability of the parties. Along the same lines, employer-sponsored health insurance, too, is a key aspect for consideration, especially where job changes—for the individual carrying the employer-sponsored benefits—could impact coverage.

Life Insurance and Accidental Death Policies

As lawyers often address the possible worst-case scenarios in surrogacy arrangements as they draft the GCA, life insurance is a topic that should be contemplated. Although a somber topic, it is a matter of foresight and responsibility to ensure the gestational carrier has a policy for life insurance—or equivalent protection such as an accidental death policy—in a sufficient amount to support her family in case of tragedy. A variety of factors may be assessed when determining the appropriate policy for a gestational carrier such as her current income, her family’s regular monthly expenses, the age of her children and their future needs, and other considerations specific to her lifestyle.

Mental Health Support and Counseling

While the intended parents may allocate a budget for mental health counseling as part of the terms of the GCA, it may still be essential to consider whether these funds are capped at a specified dollar amount and if the gestational carrier’s health insurance will cover mental health services to adequately support her throughout the surrogacy journey, including postbirth or other termination of the GCA. Access to necessary support throughout the surrogacy process and continuing through postpartum is central to the gestational carrier’s well-being.

Tax Implications

Although assisted reproductive technology (ART) attorneys generally do not advise on tax issues, they may inform gestational carriers of the importance of consulting with a tax professional to understand how their financial situation may be impacted by any reimbursements received under the terms of the GCA.

Postbirth Considerations

Postbirth, a gestational carrier must ensure that her medical insurance or other financial resources can cover complications which may extend beyond the term stated in the GCA. Additionally, a gestational carrier should have ample opportunity to engage in discussion with a medical professional to understand the potential health risks of pregnancy that could affect her future earning potential.

Payment Disputes Under the GCA

In the event of payment disputes, a gestational carrier may not have the resources to secure legal representation to follow the required legal path to recover amounts owed under the GCA. Provisions for attorney’s fees in the GCA may offer protection and peace of mind in this unexpected situation.

Ultimately, while there are many medical considerations involved in determining the eligibility of a gestational carrier, financial considerations should not be overshadowed. During the process of evaluating eligibility of a gestational carrier as a candidate to be matched with hopeful intended parents, it is necessary to also understand a gestational carrier’s financial health and stability. While the GCA will provide protections for the gestational carrier to ensure she is made whole and will not incur out of pocket expenses, her motivations for becoming a gestational carrier and existing financial situation should be given thoughtful consideration from the outset.

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Sarah E. Wilson

Solo Practitioner

Sarah E. Wilson is an assisted reproductive technology (ART), surrogacy, and adoption attorney with a solo practice dedicated to helping clients grow their families. Sarah’s approach is to provide compassionate, client-focused representation and guidance. Sarah is licensed to practice in Iowa and Colorado.