Surrogacy can be complicated and confusing. It can also raise many legal questions for first-time surrogates who want to protect themselves, their families and their intended parents before jumping into this life-changing process.
If you are considering carrying a baby for someone else, there are several legal complexities involved. A surrogacy lawyer is necessary to protect the rights of all involved, not to mention fully understanding the legal process of surrogacy before even beginning.
So, where do you start as a prospective surrogate? The first thing to do is to contact a local surrogacy attorney, who can answer your questions based on your personal situation and state laws. However, in the meantime, find some general answers to a few of your legal questions below:
1. Can I be a surrogate in my state?
In most states in the U.S., surrogacy is legal. However, each state has different legislation regarding who can be a surrogate or intended parent, whether a surrogate can be related to the baby she carries, how much compensation can be paid and more. Before deciding to become a surrogate, it’s important that you understand the laws in your state, as they are the laws that will shape your intended parents’ surrogacy journey, too. If you live in a state (like New York or New Jersey) where surrogacy contracts are unenforceable, most intended parents will not be comfortable working with you.
Always contact a local surrogacy attorney for more information about surrogacy in your state. Most professionals will provide a free consultation, and your legal costs will always be covered by the intended parents you choose to work with.
2. Can I get paid for being a surrogate?
The answer to this question will depend upon the laws of your state. Some states completely outlaw surrogate compensation, while others allow for a surrogate to receive payment for her services.
If the laws of your state allow for it, you can receive compensation to be a surrogate. This compensation is usually paid out monthly once a pregnancy is confirmed and can vary in amount depending on your experience, where you live and more. Keep in mind that your intended parents will also cover any of your medical or pregnancy expenses. Surrogacy will always be completely free for women like you.
3. How do I make sure I’m not responsible for the baby after birth?
When you are the one giving birth to a baby, you may think you are automatically deemed the mother of the child. However, surrogacy professionals across the country have created a legal process that ensures you will not be held responsible for a child you give birth to via surrogacy.
Most surrogacies today are gestational, which means a surrogate is not genetically related to the baby she carries. Instead, the child is genetically related to the intended parents (or a gamete donor, if necessary). A surrogacy attorney documents this relationship in a pre-birth parentage order, which a court enforces to give the intended parents automatic parental rights to their child.
The availability of a pre- or post-birth parentage order will depend upon the laws of your state, but one thing is for sure: You will not be responsible for the baby after you give birth.
If you are a traditional surrogate (meaning your eggs were used in the IVF process), you may need to take additional legal steps to relinquish your maternal rights. A pre-birth order may not be possible; you may instead need to sign relinquishment papers after the baby is born. In some states, this process is treated like an adoption, which can come with other legal considerations.
Remember, your surrogacy attorney will work with you and your intended parents to ensure the proper parental rights are established at the time of birth.
4. How can I protect my family in case something goes wrong?
Like any big medical commitment, surrogacy is not a decision to make lightly. When you become a surrogate, you will be giving your time, energy and body to help another family for a year or more — and you will be subjecting yourself to certain medical risks along the way. It’s important that you protect yourself and your family in case you are incapacitated in one way or another.
This is where your surrogacy contract comes in. Your surrogacy attorney will make sure that your rights are protected, and he or she will also take into account any potential liabilities of the process. Your contract will address those risks and liabilities and set out the steps to take if they do occur. You will have a say in making sure that the proper financial protections are in place if something unexpected occurs.
5. Why do we need a lawyer to draft a surrogacy contract?
In addition to laying out potential risks and liabilities, a surrogacy contract is essentially a list of all the legal guidelines, expectations and responsibilities involved in your surrogacy journey. Without a proper surrogacy contract, there is a great deal of legal risk in being a surrogate. You must work with a surrogacy attorney to create a surrogacy contract.
Only surrogacy attorneys understand all of the nuances involved in surrogacy, and only they can properly list and address those aspects in a legal contract. While you can find surrogacy contracts online, these contracts cannot address all of the personal circumstances of your own surrogacy — leaving you and your intended parents vulnerable. There is no “one-size-fits-all” when it comes to such an important legal document, especially when surrogacy laws in the U.S. vary so widely by state.
6. Why do the intended parents and I have to have separate lawyers?
Your personal surrogacy goals and dreams are likely different from your intended parents’, so it’s important that you both have separate legal representation. This way, you can ensure that your needs and wants are being properly protected, without interference from those of the intended parents.
For example, your surrogacy attorney will help you advocate for the best surrogate compensation for your situation — without also trying to reduce the expenses of the intended parents, as he or she would if representing them simultaneously. Remember, your legal services will always be free to you when you become a surrogate.
7. Whose health insurance will I use for the surrogate pregnancy?
The answer to this question will depend upon your personal health insurance policy. Some insurance carriers will cover surrogate’s medical expenses, while others have a “surrogacy exclusion” written into the policy.
If your health insurance does not cover or is not conducive to the coverage of surrogacy, the intended parents will purchase an additional insurance policy to cover your medical expenses. You will not be required to pay for this insurance or for your medical expenses, and the details of your insurance coverage will be determined long before you begin. At American Surrogacy, surrogacy specialists will evaluate your insurance upon your application to our agency. If you need an additional insurance policy, this will be obtained as part of the surrogacy contract phase.
Have more questions for a surrogacy attorney or questions about the surrogacy process in general? Contact our surrogacy specialists at 1-800-875-BABY(2229) to learn more or receive a referral to a trusted lawyer in your area.