What Should Your Attorney Do for You and Your Gestational Carrier?

1 in 8, or 7.4 million women have had to seek help for their infertility during their lifetime.

Sometimes, intended parents choose to utilize a gestational carrier (GC), also known as a surrogate. It is estimated that more than 35,000 children have been born by surrogates. Whether you are an unmarried or married intended parent struggling with infertility or other family formation issues, it is important that you have competent experienced legal representation when using a GC. One important indicator of competency is to determine if the attorney you are considering is a  Fellow of AAARTA (The American Academy of Assisted Reproductive Technology Attorneys) or the American Bar Association’s Legal Professional Group for Assisted Reproductive Technology Law. You should speak with ART counsel before you are formally matched with a GC. Discuss your legal costs in detail and some of the many legal issues related to surrogacy, such as the financial consideration to be paid to your GC. Request a written fee quote from your attorney before you sign the fee agreement.

As an intended parent, your attorney will counsel you regarding the applicable surrogacy law. The surrogacy laws in Colorado are friendly. In other states such as Michigan and New York, they are unfriendly. Also, you should if possible hire legal counsel who has health insurance expertise and experience, and is able to advise you if the gestational carrier’s health insurance policy will cover her maternity expenses as a GC. Most ART attorneys do not have this experience. Regardless, you should be referred to an experienced insurance professional who can evaluate your GC’s health insurance policy.

If your GC’s health insurance policy does not cover her maternity expenses, then you should work with your attorney to consider the purchase of insurance coverage from a broker who specializes in ART insurance products. Your attorney should work with you on a flat or fixed fee basis. Your attorney’s fees will be fixed and you avoid the risk of expensive legal costs if your case results in many hours of billable time. There can be exceptions to this for international cases. Typically, the intended parents’ attorney will draft the GC contract. On occasion, legal counsel for the GC will do the drafting.   Regardless, the drafting attorney should be licensed in the state whose law will govern the surrogacy contract. This is customarily the state in which the surrogate resides and where the baby will be born.

The use of a professional escrow manager will help ensure that the GC is paid on time and efficiently. ART counsel should discuss this issue with his/her clients, whether the GC or Intended Parents. A sufficiently funded and professionally managed escrow account will protect all parties. Relying on the intended parents’ word they will pay is risky but many GCs proceed this way. It is risky not because the intended parents will intentionally not pay the GC. It is risky because the intended parents could die, become disabled, lose their employment, suffer an IRS tax lien or other misfortune which will result in the GC not being paid.

Bed rest is often a big issue. If the GC is medically ordered to bed rest by her physician, how will her lost wages and child care costs be paid by the intended parents? Normally there is a cap on lost wages and child care? Does the GC have disability insurance and will it cover lost wages due to her pregnancy and if so how much and for how long.  Child care expenses can be significant if the GC does not have a strong family support system. A GC’s hospitalization if lengthy can result in costly child care expenses. Lost wages can also be significant including wages lost by the GC’s husband caused by medically ordered bed rest.

In non-agency cases, the intended parents’ attorney may be asked to help manage the surrogacy process. Competent ART agencies are invaluable in facilitating the surrogacy process. However, many intended parents locate a GC without agency assistance to avoid paying expensive agency fees. Also, some intended parents will use close friends and relatives as their GC. Known as a compassionate or non fee surrogacy, legal counsel should still be retained.

ART counsel should counsel his/her clients regarding abortion and selective reduction issues and ensure they are carefully covered in the contract. Both the GC and the Intended Parents should have similar ethical views to avoid future problems.

The Intended Parents’ parental rights is a critical issue. Their legal counsel will advise them regarding their parental rights and what formal legal action is necessary to protect these rights. In Colorado, a pre-birth parentage action should be filed in district court by week 20 of the GC’s pregnancy. This will formalize the intended parents’ parental rights.

If a significant legal problem develops, the Courts may look at the parties differently if they are not represented by counsel. The intended parents may waive legal counsel if the clinic approves this, but it is not advisable. Many fertility centers insist that all parties have independent legal counsel. The GC and her husband should always be represented, in fact, some states’ laws mandate this.

The surrogacy contract is complex and technical. A contract dealing with the creation of human life should never be taken lightly. Partnering with a competent and compassionate attorney, specializing in ART law will help to ensure a smoother process while building your family.

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