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By Fred Silberberg
Surrogacy affords the opportunity of a dream-made-true for prospective LGBT parents, enabling you to welcome a child into the world who is truly your own and continue the miracle of your family lines. The hard part, however, is reaching that point.
Surrogacy’s path-to-parenthood is infamously complicated, posing an intimidating and often overwhelming obstacle to intended parents. Quite justifiably, surrogacy’s daunting process is enough to spur many parents to rule it out altogether as a potential alternative parenting option.
But it doesn’t have to be this way. An understanding of surrogacy’s legal structure and its step-by-step process can help make the process more manageable for LGBT parents, and allow you to realize the joy which surrogacy can bring.
Depending upon your needs, the 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 whom you can trust and depend on. You should conduct an extensive screening process, as there are details concerning medical and pregnancy history, insurance, and family health information which need to be addressed from the very beginning. To help make the search process more manageable, a surrogacy agency can help you to engage with candidates who have been through a proper screening. 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. Be aware of the fact that not all women willing to be surrogates are willing to do so for gay individuals or couples. In this regard, an agency can be of great help. Those agencies that work with gay families have already screened these women out. Finding the right connection early on will help to protect you and ensure a smooth process.
Most important to ensuring your proper protection, however, is the legal agreement you execute. 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, ranging from criminal penalty to full protection of those parties engaged in surrogacy agreements. 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 which is complicated, unclear, and, to some extent, unpredictable. Depending upon where you live and where you plan to conduct your surrogacy agreement, you’ll need to plan your approach accordingly. Here’s a basic breakdown of surrogacy on a state-by-state level:
State Statutes and/or Case Law Protects and Upholds Surrogacy Agreements
Arkansas, California, Connecticut, Illinois, Iowa, Maryland, Massachusetts, North Dakota, New Jersey New Mexico, Ohio, Pennsylvania, South Carolina, Tennessee, West Virginia
State Statutes and/or Case Law Renders Surrogacy Agreements Questionable
Alaska, Arizona, Colorado, Delaware, Florida, Georgia, Hawaii, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New York, North Carolina, Oklahoma, Oregon, Rhode Island, South Dakota, Texas, Vermont, Utah, Virginia, Washington, Wisconsin, Wyoming
Statute Prohibits Surrogacy Agreements, Imposes Criminal Penalty
Although a surrogacy contract may seem rather simple, a properly drafted surrogacy agreement is a complex and detailed document. The contract covers a range of matters and it needs to properly address each individual consideration, which go far beyond mere terms of compensation. The agreement must address, for instance, what happens if multiple embryos are implanted and they all take, whether the parents can eliminate some embryos to avoid multiple births, what happens if the surrogate suffers medical complications, what measures the surrogate must take to maintain a healthy pregnancy, whether there will be a waiver of the surrogate's rights to health care confidentiality relating to the pregnancy, and what happens if insurance is denied, to name a few points.
Once you’ve reached a legal agreement which protects you and your child, which you understand thoroughly, and one which creates a sound framework to move forward, the fertilization and implantation medical processes begin. For LGBT parents, it’s important to find medical professionals who are supportive of your decision. Whether explicit or implicit, if you perceive a sense of judgment or questioning from your medical professionals, it’s best to look elsewhere. There’s neither need nor room for added stress and tension during surrogacy’s process, so be sure to surround yourself with a team that offers nothing but support.
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 which supports a healthy child. Sadly, many parents often 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, CA.
© Fred Silberberg, 2012