What to Consider when Considering Gestational Surrogacy

More and more couples and individuals who suffer from infertility are turning to gestational carriers to assist them in starting or expanding their families.  Gestational carriers assist not only heterosexual couples, but gay couples, single males and single females.  The intended parent(s) may not be able to carry or conceive a child but the intended mother may produce healthy eggs. In some situations, the intended parent(s) will also need to locate an egg donor. In either case, these eggs will be fertilized outside of the woman’s body and the resulting embryos placed in a gestational carrier.  Most gestational carriers enjoy being pregnant and are emotionally rewarded by the experience of helping the intended parent(s) realize their dreams of becoming parents.  Most carriers are compensated by the intended parent(s) for the service they are providing in addition to the expenses of the pregnancy.

The legal issues regarding utilizing the services of a gestational carrier can vary depending on the individuals involved.  Some of the primary questions intended parent(s) need to ask when embarking on this journey are:

Where does your carrier reside and where does she plan on delivering?

It is imperative that intended parent(s) are fully informed of the laws governing gestational surrogacy in the state where their carrier resides.  One of the most important issues intended parent(s) need to think about when considering a gestational carrier arrangement is the state, and in some instances the county within the state where the delivery of the child would likely take place.  Primarily, you need to be sure that the state in which your potential carrier resides, and plans on delivering, does not have any restrictions or policies which prohibit the compensation of a gestational carrier.  If you contract with a gestational carrier in a state that prohibits this type of arrangement, you will end up with a contract that is unenforceable, not to mention illegal.  However, some states which prohibit compensating a carrier may allow for a non-compensated arrangement. 

The laws governing the issuance of birth certificates vary from state to state as well.  Some states are very favorable to these types of arrangements and allow for intended parent(s) to be declared the child’s legal parents on the original birth certificate.  Most states, however, have restrictions or certain conditions which must be satisfied prior to placing the intended parent(s) on the birth certificate, and, even then, an adoption may be the only way for some parents to obtain full legal custody of their own children.  The use of donated ova, the marital status of the intended parent(s) or the sexual orientation of the intended parent(s) all may affect the ability of the intended parent(s) to obtain a pre-birth parentage order in the state allowing the intended parent(s) to go directly on the child’s birth certificate without an adoption.  Some counties in Pennsylvania will deny the non-genetic mother, in an arrangement utilizing donated ova, a pre-birth declaration of parentage, forcing an adoption by the intended parent(s).  Some states are realizing the antiquity of these laws and things are beginning to change.  In a recent decision from the Pennsylvania Appellate Court, the Court recognized that a gestational carrier with no genetic relationship to the children she carried should not be declared the children’s legal mother when the intended father was seeking a court action to be declared the children’s parent. 

Does the Gestational Carrier carry Medical Insurance?

Medical insurance is very costly and, because of the financial burden already faced by many intended parent(s), can be a significant issue when planning to work with a gestational carrier.  Even if a gestational carrier has insurance, there is still the very real possibility that the coverage may contain an exclusion of benefits for claims made for a pregnancy when the insured is acting as a gestational carrier.  It is imperative that intended parent(s) are fully informed of their gestational carrier’s coverage prior to starting any medical procedures.  The medical bills can be overwhelming if the proper insurance is not in place.  Fortunately there are insurance agencies that will provide coverage for gestational carriers who lack such benefits; however, this coverage can be very costly.  If intended parent(s) are not certain of their gestational carrier’s insurance coverage, it is in their best interests to consult with an attorney or other professional experienced in reviewing insurance policies.  A little money spent now could save thousands later.

Is the Gestational Carrier experienced?

There are many pros and cons to working with an experienced gestational carrier as opposed to working with a first-time gestational carrier.  While a gestational carrier who has been involved in this type of arrangement before has the experience and knowledge of the process, this is often accompanied with higher compensation amounts and additional fees for related pregnancy events.  Such additional fees include, but are not limited to, additional compensation should an amniocentesis be required, a cesarean section be performed, and a host of other medical procedures which may become necessary as the pregnancy develops.  A first time carrier will usually request a lower compensation amount, however, she will not have the experience or knowledge of an experienced carrier.  Intended parent(s) need to consider their particular financial situation when making this decision.  For many hoping to start a family, the costs of infertility treatment can be devastating and, by the time intended parent(s) begin exploring the option of working with a gestational carrier, financial considerations may be of primary concern, thereby making a first time carrier more attractive.

Is the Gestational Carrier married?

If you are considering working with a gestational carrier who is married, it is not just the gestational carrier that you are working with.  The gestational carrier’s husband also plays a role in the intended parent/gestational carrier relationship.  A gestational carrier’s spouse will be obligated to undergo clinical testing and psychological screening prior to the arrangement moving forward.  He will also be needed when the time comes to obtain the birth certificate as his rights, as well as the gestational carrier’s, will need to be terminated.  The support of a gestational carrier’s spouse, or partner, is imperative, not just for the well-being of the gestational carrier, but for the intended parent(s) as well.

Why you Need a Contract.

An intelligently drafted contract between intended parent(s) and their gestational carrier will address all of the above issues and more.  It is of utmost importance that intended parent(s) consult with a qualified attorney who specializes in the field of reproductive law when they find they are ready to contract with a gestational carrier.  A contract serves to protect the interests of all the parties involved.  A professionally drafted contract will clearly state the obligations and responsibilities of each party and must be executed by all the parties involved prior to any medical procedures being commenced.  The gestational carrier and her partner/husband should be represented by independent legal counsel to ensure that they have had the benefit of proper counsel prior to entering into the contract.

If you have decided to pursue a gestational carrier arrangement the first step is finding a gestational carrier with whom you feel comfortable and who is physically and emotionally able to provide this most beautiful gift.  There are many steps along the way once you have found someone to carry your child.  At times it may seem overwhelming, both emotionally and financially, but when the parties are successful, and the intended parent(s) child is brought into this world, it is all worth it.

Melissa B. Brisman specializes exclusively in the field of reproductive law