How to ask your attorney the right questions about surrogacy

You know that saying “it takes a village to raise a child”? When we’re talking about surrogacy it actually takes a village just to bring your child into the world. You will need a team of people working with you to make your dream come through. A core group is necessary for every gestational surrogacy arrangement. This would be your fertility specialist, your surrogate, a psychologist, an OBGYN or midwife and your attorney.

Why do you need an attorney? Every state is different and has different laws and rules surrounding surrogacy. An attorney is the knowledgeable person who understands these laws and how to work within them. They will write your contract, also known as a gestational surrogacy agreement, and work in your best interest. Your surrogate will have her own attorney working in her best interest as well. The attorney you work with will actually be responsible for preparing and filing the legal parentage documents. This is the paperwork that confirms you are the legal parent of your child. These are some of the most important steps in a surrogacy journey and you want to have a great attorney as part of your team.

You will want to speak with at least 2 or 3 attorneys to get an understanding of the process within the state your surrogate will deliver. You will also want to learn what it will be like to work with them. Here are some questions you should consider when consulting with attorneys about surrogacy

What is your experience with surrogacy arrangements?

Surrogacy is unique and complicated. Your attorney should have ample experience in this area of law. They should be knowledgeable about the state laws, legal parentage process, and how to work with your fertility practice, obgyn, and hospital.

What else will your attorney assist with?

Some attorneys will be able to perform a background and criminal records check on your prospective gestational carrier. Some may offer to review a gestational carrier’s health insurance to see if it can be used. Finding out if her insurance can be used (AKA “surrogacy-friendly”) is an important step. Not all attorneys offer these other services and they may or may not come at an extra cost.

How do you handle disputes over the terms of the contract?

If you reach a wrinkle with your GC and disagree with terms of the contract or need help enforcing a clause, your attorney should be able to help you. Asking this question will help you to get a feel for how your attorney handles these issues throughout a journey.

How have you been able to resolve issues at the vital records/court ordered parentage level or with hospital admin in protecting IPs?

Sometimes surrogacy journeys face some bumps in the road. Having someone who will work for your best interest and who is both knowledgeable about the law is very helpful if you hit a road bump.

What are the costs and payment structure for contract drafting?

You may be charged a set fee for contract drafting and negotiation or an hourly rate. If your attorney charges hourly, ask what about the usual price range or number of hours needed. Either way you may be charged an initial retainer.

What are the additional costs of a pre- or post- birth order (legal parentage)?

Apart from the gestational carrier agreement, an attorney will also help with the legal process to grant you parental rights for your baby. Depending on your state, you may encounter things like the need for 2 attorneys or in-person court appearances. You may be billed for this later in pregnancy or after delivery so it’s another item to budget.

How long will it take to complete contracts?

There’s a lot of hurry up and wait with surrogacy. Legal contracts are generally the last step prior to your gestational carrier starting medication for embryo transfer. How exciting! So yes, who long will this process take?

What are important clauses and fees that we should discuss with a potential surrogate ahead of time?

You likely covered key fees and contract terms when you were matching with your GC. Ask your attorney about additional ones that you should think about and discuss with your GC. The beauty of doing this before the initial contract draft is that you and your GC can come to an agreement. The more you agree on, the less back and forth, which can increase costs, frustration, and time to embryo transfer.

Do you have any specific insights about the laws of this state regarding surrogacy and how they would apply to our situation?

Surrogacy laws are governed by individual states. Are you able to compensate your GC or receive only reimbursement of living expenses or will she have to be altruistic? Do you need to complete a home study and adoption fitness standards? Can you have a legal parentage order if you’re an unmarried couple or gay dads or not genetically related to the embryo? There is a lot that your attorney should be able to unpack for you.

What is the legal parentage process? Will we be able to have our names on our baby’s birth certificate?

The process varies by state, jurisdiction, and individual circumstances like biological connection, use of donor embryos, same-sex parents. Your attorney will advise on if this is a process completed before or after birth and whether additional steps of court appearances or adoption will be necessary for you.

As you can see from these questions, your attorney is going to be a great resource for your surrogacy journey. Having a great attorney will save you a lot of frustrations and anxiety. Surrogacy can already be an emotional rollercoaster without legal issues. Let these questions be your jumping off point as you consult with attorneys and finally pick the right person to work with.