Surrogacy, egg donation, and embryo donation each require careful legal planning. Taking the right steps in the right order can protect everyone involved and reduce the risk of problems later. Attorney Melissa Torto of the Law Office of Melissa L. Torto, LLC, helps intended parents, surrogates, and donors throughout Massachusetts prepare for each stage of surrogacy and donation. The checklists below outline common legal steps.
Surrogacy Checklist for Intended Parents
Under the Massachusetts Parentage Act, a gestational surrogacy agreement must meet certain requirements to be valid. Before any embryo transfer, intended parents should:
- Confirm the surrogate is at least 21 years old and has previously given birth
- Make sure the surrogate has completed a medical evaluation and an independent mental health consultation
- Complete their own mental health consultation
- Confirm that each side has its own attorney
- Sign a written surrogacy agreement before any medical procedures, other than evaluations, take place
- Set up an escrow account for the surrogate’s compensation and expenses
- Review health insurance coverage with an insurance professional who understands surrogacy
- Discuss whether to seek a judgment of parentage before or after birth
A Massachusetts court can issue a judgment of parentage before, on, or after the child’s birth.
Key Provisions in a Surrogacy Agreement
A surrogacy agreement should address provisions such as:
- Compensation and reimbursement of expenses
- Medical decision-making during the pregnancy
- Plans for complications or multiple pregnancies
- Confidentiality and privacy protections
- Each party’s obligations if someone withdraws from the arrangement
Egg Donation Checklist
Whether the donor is anonymous or known, intended parents should:
- Sign a written egg donation agreement before the egg retrieval
- Confirm that the donor relinquishes any parental rights
- Address expectations about future contact
- Include confidentiality and privacy provisions
- Confirm how any remaining eggs or embryos will be used
It is also important that both sides of independent legal counsel. Even when the donor is a friend or family member, the donor should also have separate legal counsel review the agreement. Under Massachusetts law, a donor who provides eggs for assisted reproduction is generally not a parent of the resulting child.
Embryo Donation Checklist
Embryo donation involves both the donating family and the receiving family. Before the transfer, both families should:
- Sign a written embryo donation agreement
- Confirm that both embryo donors consent to the donation, and that there is nothing prohibiting them from donating to third parties (i.e. if the embryo donors used a gamete donor(s) to create their embryos, there may be provisions preventing them from donating the embryos to third parties for procreation).
- Address any expectations about future contact between the families
- Include confidentiality provisions
- Complete the fertility clinic’s consent forms and screening requirements
Steps After the Birth
Legal planning continues after your child arrives. Common steps include:
- Confirming the birth certificate lists the intended parents
- Obtaining a Social Security number
- Addressing passport or citizenship issues if another country is involved
- Updating estate plans with an estate planning attorney
Because the firm does not handle estate planning, Melissa can provide referrals to attorneys who do.
Talk With a Massachusetts Surrogacy and Donation Lawyer
These checklists cover common steps, but every arrangement is different. Call 617-812-9974 or contact Melissa online to schedule a consultation.