07/12/2012

Fred Silberberg

The surrogate parent’s path is infamously complicated, posing an intimidating and often overwhelming obstacle that is enough to spur many parents to rule it out altogether. But it doesn’t have to be this way.

Surrogacy offers couples and individuals hoping to become parents, but facing the burdens of infertility or other health issues, the chance at a dream come true. It enables you to welcome a child into the world who is truly your own, and continue the miracle of your family lines.

But the surrogate parent’s path is infamously complicated, posing an intimidating and often overwhelming obstacle that is enough to spur many parents to rule it out altogether.

It doesn’t have to be this way. Understanding surrogacy’s legal structure and step-by-step process can help make it less daunting and more manageable.

1. Find your donor.

Your first step is to find and connect with a surrogate, egg donor or sperm donor. Given the nature of the relationship and all that’s at stake, you need to be careful and deliberate in conducting your search. Surrogacy is rife with schemes and fraud, but you can help to protect yourself by finding a surrogate, egg donor or sperm donor you can trust and depend on.

You should conduct an intensive screening process, as there are details concerning medical and pregnancy history, insurance, and family health information that need to be addressed from the very beginning. A surrogacy agency can help you engage with candidates who have been through a proper screening, making the search process more manageable. If you choose to pursue the search on your own, be judicious and maintain your standards – even if it means extra time and, more likely than not, frustration. Finding the right connection early on will help to protect you and ensure a smooth process.

2. Establish a solid agreement.

The legal agreement you execute is crucial. This is where surrogacy can turn into a painful headache for many parents. In the U.S., there is no federal regulation dictating the legality of surrogacy on a national level. Surrogacy is governed at the state level and laws and regulations can vary widely from state to state. To complicate things further, a state’s statutes and its relevant case law often seem to oppose one another in matters regarding surrogacy, meaning that what is written has been bent, stretched or outright contradicted in actual practice. The result is a patchwork, state-by-state legal atmosphere that is complicated, unclear and, to some extent, unpredictable.

California has served as one of the most stable and favorable states in which to execute and complete a surrogacy agreement. The state has a strong base of case law that upholds surrogacy agreements and grants legal custody to intended parents. Thankfully, this means that the legal integrity of your surrogacy agreement in California hinges primarily upon the effectiveness of the agreement itself – not on external variables and uncertainties that are beyond your control.

Although a surrogacy contract may seem simple, a properly drafted surrogacy agreement is a complex and detailed document. The contract covers a range of matters that go far beyond mere terms of compensation, and it needs to properly address each individual consideration. These include:

• What happens if multiple embryos are implanted and they all take? Can the parents eliminate some embryos to avoid multiple births?

• What happens if the surrogate suffers medical complications?

• What measures must the surrogate to maintain a healthy pregnancy?

• Will there be a waiver of the surrogate’s rights to health care confidentiality relating to the pregnancy, and what happens if insurance is denied?

3. Follow the pregnancy.

Once you’ve reached a legal agreement that protects you and your child, that you understand thoroughly, and that creates a sound framework to move forward, the fertilization and implantation medical processes begin.

From here, your role moves into a supervisory one – staying on top of your surrogate to ensure they are keeping all medical appointments and leading a lifestyle that supports a healthy child. Sadly, many parents disappear at this stage and show up again after delivery. You should make every effort to keep in close contact with your surrogate throughout the pregnancy and provide support in any way you can.

Remember, you’re trusting your surrogate with your own child, and it’s in everyone’s best interest to work in an environment of support and trust. When choosing your surrogate, you should ask to what extent they’ll want you involved during the pregnancy term, and be sure you’re on the same page in knowing what level of contact and support is desired throughout the pregnancy. In addition, many parents choose to continue their relationship with their surrogate after birth. Some do not wish to. This expectation should also be made clear prior to signing a contract.

Taking proper measures at the beginning of surrogacy’s process can help to ensure that your journey will go smoothly. Further, doing so will free you from the stress and distraction of surrogacy’s process and allow you to focus on what’s truly important: preparing to welcome a new child into the world with love, warmth and care.

Fred Silberberg is a Certified Family Law Specialist and Founder of Future Family Starter, a full-service surrogacy consultancy and legal practice in Beverly Hills.