When my husband and I decided to start a family, getting pregnant wasn’t a problem. I was relieved because we’ve all heard stories about people who try and try and try, then… nothing.
I’ve had friends who needed help from doctors and expensive treatments to get pregnant. But sometimes, even that doesn’t work. Many times that’s when people turn to surrogacy. We saw Giuliana Rancic go through the process from start to finish on E! News and Kim Kardashian has even considered it. Many same sex couples who want to have babies use a surrogate to complete their family as well.
While surrogates can act as angels on Earth, we’ve all seen a Lifetime movie that makes you think twice. That’s why it’s important to consider a few key elements, including laws from state to state. I mean, having someone carry your growing child is a big deal so you want to need to be sure all your t’s are crossed and i’s are dotted.
In her book The American Bar Association’s Guide to Assisted Reproduction: Techniques, Legal Issues, and Pathways to Success, Florida attorney Marla Neufeld, who co-authored the book with attorney Jeffrey Kasky has advice for anything thinking of using a surrogate.
Neufeld is an expert - not just because she’s a lawyer with a book on the topic, but she has actually lived this herself.
Consider your state law
A handful of states, considered to be surrogacy-friendly states, have specific laws permitting surrogacy, but each state varies greatly in the limitations. For example, some states have no controlling law and in others it is a crime to compensate a surrogate. (That surprised me!)
Locate your surrogate
A reproductive lawyer or doctor should be able to recommend a reputable agency that can match you with an ideal surrogate. Family or friends could be another option to act as a surrogate. (I think Kim Kardashian has offers from both of her sisters Kourtney and Khloe.)
One of the many benefits of an agency is that you don’t have to talk money or discuss sensitive matters that arise during this process directly with your surrogate. Some states have legal requirements for the qualifications of a surrogate, like age for example, but there are many practical considerations to consider like whether the potential surrogate has her own children and experienced an uncomplicated birth, lives in a stable and healthy environment with supporting family/friends, and is free of any relevant or significant criminal history.
Remember how I mentioned Lifetime movie horror stories? This is why you want to ensure the surrogate is emotionally in agreement with the intended parents when it comes to issues like the termination or selective reduction of the pregnancy in the event that too many embryos implant or if there is a mental, physical, genetic or congenital defect, deformity, or disability with the child. The intended parents cannot force a surrogate to terminate or not terminate a pregnancy. I’ve seen stories like this play out in the news, so it’s important to be prepared and be on the same page.
Establish a relationship with a credible reproductive clinic and doctor
It is important to confirm the fertility clinic you visit with works with surrogates, as surrogacy requires specific federal guidelines, and not all fertility clinics offer this service to their patients.
Based on the location of the surrogate, you may need to select a second fertility clinic, closer to the surrogate, to monitor her during the process to circumvent travel for routine appointments.
Make sure you have the proper legal documentation in place
For reasons already mentioned, this is a big one. Many states require a contract between the parties be in place before the surrogate starts medical treatment. The intended parents and the surrogate should be represented by separate attorneys and the contract should detail the surrogate’s obligations through treatment, pregnancy, birth and beyond. How many embryo transfers will she do? How many embryos will be transferred at a time? Once the baby is born, what level of contact will she have with the baby?
Before or after the child is born, the procedures making sure the surrogate’s name is not on the birth certificate and placing the intended parents’ names on the birth certificate is a matter of state law. Intended parents need to consult with an experienced reproductive attorney at the beginning of the process so they understand the procedures and risks, if any, based on that particular state’s laws and regulations on surrogacy.
For international parents using a surrogate in the United States, one must discuss immigration issues to ensure that the child, who is be issued a birth certificate in the state of birth, is able to reenter the international intended parents’ home country and obtain citizenship, as each country has different regulations and procedures for this process.
Losing or even having to fight for your child is the worst nightmare a parent can face. If the legal rights to a child are not clear, the courts will create them as best they can to protect that child.