How are Intended Parents and Gestational Surrogates protected legally throughout the process?
Gestational surrogacy is very complex. From egg retrieval to donor selection to mental health consultations to embryo transfer to meeting the baby, there’s a lot going on in every step of the process. And the legal process is no exception. If you are doing your first surrogacy, you are probably wondering how you will be protected legally during your journey. Well, let me break it down for you.
1. Insurance Verification
Well, this step is quasi-legal, quasi-insurance. You can have your lawyer do this or use a surrogacy-experienced insurance broker, such as Art Risk Solutions. Bottom line is that you want to know with a high degree of confidence whether your surrogate’s existing health insurance will cover the pregnancy. You are ultimately going to be responsible for the surrogate’s medical bills, so having insurance pay a big chunk of that protects you from unexpected medical expenses. At Bright Futures Families, we take care of this part before the surrogacy contract so that the insurance expectations can be written into the contract.
2. Surrogacy Contract
So that brings us to the surrogacy contract. It can be called many things—legal contract, gestational carrier agreement, legal agreement, surrogacy agreement, and so forth. Some states require that you have a surrogacy contract, and other state laws are silent about it. No matter what state laws says, Bright Futures Families requires this contract to be in place for every one of our matches. We require it to be completed before the surrogate starts taking her transfer medications (even if state law provides a later deadline).
All intended parents and surrogates will meet with their attorneys as part of the contract process (and this is usually a Zoom meeting so a bit easier to fit into your busy schedule). This will give you the chance to negotiate and customize the contract to your situation. You can expect the contract process to take about 2-3 weeks.
3. Court Order for Parentage
A very important follow-up piece to the surrogacy contract is the court order. These can be called different things such as a pre-birth order, PBO, birth order, parentage order, etc. Bottom line is that you will get a court order which designates both intended parents as the legal parents of the child. This puts the intended parents’ names on the birth certificate and keeps the surrogate’s name off the birth certificate.
4. Laws
Last, but not least, a lot of states have laws about surrogacy. Laws can provide a lot of protection to you by granting legal authority to your arrangement. For example, a law can make a gestational carrier contract enforceable, it can allow for the issuance of pre-birth orders, or it can specific what birth certificates look like for surrogacy babies
Some of these laws are statutes, meaning the Legislature approved them and the Governor signed them into law—New Hampshire and Colorado are examples of this. Other laws are based on prior cases being decided in that state—Massachusetts is one example of this. The Bright Futures Families group only operates in states with a favorable legal environment—whether that comes by way of a law on the books or prior decided cases. You should discuss this in more detail with your attorney to understand your particular situation.
Don’t worry, you won’t have to walk this legal path alone. Your attorney is there to provide guidance to you as you make your way through the legal process. To learn more about the legal costs associated with surrogacy, check out our cost estimates. We are also happy to answer any questions you have about how the legal process works, so get in touch.