How a Lawyer Can Guide You Through the Surrogacy Process

Woman with a surrogate mother

Deciding to build your family with the help of a surrogate is a deeply personal decision. As such, it may feel like it can be handled on a personal level. But surrogacy and parenthood involve legal relationships, as well as personal ones. In order to make sure the process is successful for everyone involved, it is essential to have an experienced assisted reproduction technology (ART) attorney guiding you through the process.

When you start the surrogacy process, your mind naturally drifts to a happy conclusion: a healthy infant in the arms of loving, grateful parents; a surrogate filled with joy at having given the gift of life to a family. Ideally, those visions will become a reality, but it’s much more likely with the proper help.

Deciding to Work With a Surrogate

With proper planning, surrogacy can be hugely rewarding for both the surrogate and the intended parents. But it is also a major commitment, emotionally and financially. Financial costs can include compensation paid to the surrogate, her medical expenses, and agency fees if working through an agency. Agency fees typically cover services such as advertising, background checks, screenings, support, and education.

On the emotional side, you are placing one of your dearest hopes—parenthood—in the hands of another person. That can cause all kinds of unexpected emotional issues to crop up, depending on the reasons you are considering surrogacy and whether you have a prior relationship with your surrogate. Working with a surrogacy attorney may not be able to help you avoid those issues, but your attorney can help you anticipate and prepare for them.

Making a Surrogacy Plan

Once you understand what the surrogacy process entails and you have committed to surrogacy as your path toward parenthood, you need to plan for what comes next. A surrogacy plan details how you intend for the process to unfold.

Do you have a surrogate in mind, or will you need to be matched with one? Are you engaging in a compensated surrogacy or a truly compassionate arrangement? Do you know the surrogate or was she introduced to you by an agency? Will you choose to match independently or with an agency, and if so, which one? Will you need donor eggs or sperm, and if so, where will they come from? What are your goals for involvement during the pregnancy? What should happen if it is determined that the baby will be born with birth defects or health issues?

These are some of the questions you will want to explore with your attorney. Knowing what you want, and knowing what to expect, is key to a successful process.

Matching With a Surrogate

Some intended parents approach the surrogacy process with an identified surrogate in mind, often a family member or friend of the family. Others have decided that surrogacy is the way they want to build their family, but need to find the right person to help that happen.

Based on your surrogacy plan, your attorney will offer guidance as to how best to identify and select a prospective surrogate, and how to create a profile for yourself that will present you and your family in the best light to potential surrogates.

Making a Surrogacy Agreement

Once you have matched with a surrogate, the services of your surrogacy attorney really come into play. You are establishing a life-changing relationship, and it is critical to clearly set forth all parties’ rights and responsibilities. A surrogacy agreement should cover:

  • The surrogate’s intention to bear a child for the intended parent(s);
  • Provisions regarding how the surrogate will safeguard her health and that of the pregnancy while also preserving the surrogate’s autonomy over her body;
  • An affirmation of the parental rights of the intended parents on the part of the surrogate and, if necessary, her spouse;
  • An expressed intention on the part of the intended parent(s) to assume all parental rights and responsibilities;
  • Provisions regarding how to proceed in the event of a multiple pregnancy, chromosomal abnormalities or expected birth defects, threats to the surrogate’s health from continuing the pregnancy, or other contingencies;
  • The surrogate’s reimbursement of living expenses, uncovered medical expenses, insurance; and any escrow arrangements;
  • Privacy and social media issues;
  • Whether and how there will be post-birth contact between the parties;
  • What will happen if either party breaches the contract;
  • In the event of a dispute, what state’s laws will govern.

Most parents only go through surrogacy once or twice. But your attorney has worked with many surrogates and intended parents. She is aware of contingencies you may not have even imagined, and will help to prepare an agreement that plans for them while protecting your rights.

Fertilization, Embryo Transfer, Birth, and Beyond

Your surrogacy lawyer can help you navigate any legal issues that arise during the process of bringing your child into the world. Pregnancy can be a tense and emotional time, not only for a surrogate, but for intended parents as well. A well-drafted surrogacy agreement should help avoid conflicts, but if a concern arises, your attorney can act as an intermediary to help address the problem before it ripens into a full-blown dispute.

If you are contemplating using surrogacy to grow your family, or are thinking about becoming a surrogate, understanding the process, as well as your rights and responsibilities, is essential. We invite you to contact Attorney Stephanie M. Brinkley at Brinkley Law Firm to learn more.

Our Attorneys

Stephanie M. Brinkley's Profile Image
Since founding Brinkley Law Firm in 2011, attorney Stephanie Brinkley has helped families grow and expand by navigating them through the legal challenges surrounding Assisted Reproduction Technology (ART) and Adoption. As an attorney who focuses on f… Read More
Christopher D. Kays's Profile Image
Originally from Los Angeles, Christopher Kays moved to Charleston in 2007 when he reported to The Citadel for his knob year to study psychology. As a cadet, Christopher volunteered at the VA hospital and helped establish Leadership Day, The Citadel… Read More

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