Frequently Asked Questions About Surrogacy

What is a Gestational Carrier Agreement?

A Gestational Carrier Agreement is a written agreement entered into by the intended parent(s), a gestational carrier/surrogate and her spouse/partner, if applicable, which is an important tool for setting forth the parties’ rights and obligations throughout their arrangement.

Why do I need a contract with my gestational carrier/surrogate?

It is important to outline and define the rights and responsibilities of the parties involved in the surrogacy arrangement. Additionally, the Gestational Carrier Agreement will clearly state that the gestational carrier/surrogate does not intend on parenting any resulting child(ren) and does not wish to have physical or legal custody of any resulting child(ren).

Do my gestational carrier/surrogate and I need separate legal representation for the Gestational Carrier Agreement?

Yes, it is in your best interests and your gestational carrier’s/surrogate’s best interests to be represented by two separate independent attorneys knowledgeable in surrogacy law.

What topics are covered in a Gestational Carrier Agreement?

The Gestational Carrier Agreement will outline a variety of topics, including but not limited to: how many embryos will be transferred during the embryo transfer procedure; agreement about communication between the parties during the pregnancy; setting forth the amount of involvement the intended parents may have with regard to medical decisions and freedom to speak with the treating physicians; setting forth conduct restrictions (i.e., diet, dangerous activities, travel, medications); abortion and selective reduction preferences; and insurance coverage and financial provisions.

Do all states have the same laws regarding surrogacy?

No. There is no federal law regarding surrogacy. Therefore, each state has different laws regarding surrogacy. Some states have laws governing surrogacy arrangements, but some states do not.

What law will govern the Gestational Carrier Agreement?

This answer will depend on where the parties live. However, most commonly, the state where the gestational carrier/surrogate lives will be the governing jurisdiction for the contract. This state most often will be the state where the intended parents’ parental rights will be established.

Do I have to work with an attorney in a certain state for the Gestational Carrier Agreement?

No. In most states (excluding New York and Oklahoma), it is not required that you work with an attorney in the gestational carrier’s/surrogate’s state for the Gestational Carrier Agreement. However, it is important to work with an attorney who is knowledgeable and experienced in drafting and negotiating contracts using that state’s law.

How long does the Gestational Carrier Agreement take to finalize?

On average, it takes about 5-7 weeks to draft, negotiate and finalize the contract.

Does the Gestational Carrier Agreement need to be signed prior to embryo transfer?

Yes, the Gestational Carrier Agreement will need to be signed by all parties prior to the gestational surrogate/carrier starting injectable medication for an embryo transfer.

Can a gestational carrier/surrogate choose to keep the baby?

This is why it is important to have a Gestational Carrier Agreement that clearly states that the gestational carrier/surrogate does not intend to have parental rights to the child. Additionally, it is important that parents work with attorneys to obtain a parentage order, usually through a court proceeding, that terminates any rights of the gestational carrier/surrogate (and her husband, if she is married) and establishes the parents’ parental rights.

Am I automatically the legal parent of the child?

No. Intended parents in a surrogacy arrangement will need to go through a process (usually in the courts but some states have administrative processes) to establish their parental rights to the child born via gestational carrier/surrogate. The parentage process looks to establish the parental rights of the intended parents and terminate any rights the surrogate (and the surrogate’s spouse, if she is married) may be presumed to have under the law. The process generally begins once the gestational carrier/surrogate is in the second trimester. While it is not mandatory to work with an attorney in the gestational carrier’s/surrogate’s state for the Gestational Carrier Agreement, it is important to work with an attorney in the state where the parentage order will be obtained for the parentage process. The Law Office of Melissa L. Torto, LLC, can provide referrals and recommendations for this portion of the process.

Once a referral is made, the parentage attorney will go over the next steps and gather information for drafting the parentage documents. Once the documents are drafted and signed, they are filed with a court with proper jurisdiction. In some states, attorneys are allowed to file the documentation before the birth and obtain a “pre-birth order.” This pre-birth order is then sent to the delivering hospital ahead of the birth. In other states, state law requires that the attorney file for the parentage order after the birth and obtain a “post-birth order.” In those instances, a health care proxy or power of attorney is sent to the delivering hospital, so you can make medical decisions for the child and take custody of the child upon birth.

What happens if I choose not to get a parentage order?

The gestational carrier/surrogate will be recognized as the legal parent of the child, and her name will be placed on the birth certificate.

Is the parentage process the same as an adoption?

No, establishing the intended parents’ parental rights via a surrogacy is a different process than a typical adoption.

Do I need to attend a hearing?

This will depend on the state where the parentage order is being obtained. Additionally, it may also vary county by county and judge by judge.

What is an Egg Donor Agreement?

An Egg Donor Agreement is a written agreement entered into by intended parent(s), an egg donor and her spouse, if applicable, which is an important tool for setting forth the parties’ rights and obligations throughout their arrangement.

Why do I need a contract with my egg donor?

It is important to outline and define the rights and responsibilities of the parties involved (typically the intended parent(s), the egg donor and spouse, if married) in the agreement (“Egg Donor Agreement”). Additionally, the Egg Donor Agreement will clearly state that the egg donor does not intend on parenting any resulting child(ren) and does not wish to have physical or legal custody of any resulting child(ren).

Do my egg donor and I need separate legal representation for the contract?

Yes, it is in your best interests and your egg donor’s best interests to be represented by two separate independent attorneys knowledgeable in egg donation law.

What topics are covered in an Egg Donor Agreement?

The Egg Donor Agreement will outline a variety of topics, including but not limited to an agreement that the donor is not a parent of any resulting child and that she will not have any rights to any egg(s) retrieved or embryo(s) created from the donation. Additionally, the Egg Donor Agreement will outline the financial components for the arrangement.

Do all states have the same laws regarding egg donation?

No; there are no federal laws regarding egg donor. Therefore, each state has different laws regarding egg donation.

What law will govern the Egg Donor Agreement?

This answer will depend on where the parties live and where the fertility center is located.

Do I have to work with an attorney in a certain state for the Gestational Carrier Agreement?

No. However, it is important to work with an attorney who is knowledgeable and experienced in drafting and negotiating Egg Donation Agreements.

How long does the Egg Donor Agreement take to finalize?

On average, it takes about 3-4 weeks to draft, negotiate and finalize the contract.

Does the Egg Donor Agreement need to be signed prior to an egg retrieval?

Yes, the Egg Donor Agreement will need to be signed by all parties prior to the egg donor starting injectable medication for an egg retrieval.

Can the egg donor assert parental rights over a child born from a donation?

Highly unlikely as the agreement shows that the intent of all parties was that the egg donor will not be a legal parent.

Is it possible for our child/us to meet the egg donor in the future?

Yes, but it would be something you or your donor would need to mutually agree to.

What is an Embryo Donation Agreement?

After pursuing IVF, some people have unused embryo(s). Rather than discard them or donate them to research, it is legal to donate them to help others build their own families.

In most cases, it is required that people enter into embryo donation agreements to document the transfer of ownership of the embryo(s). The Parties are the people who currently have legal ownership of the embryo(s) (“embryo donors”) and the recipient(s) of the donated embryo(s) (“embryo recipients.”)

Embryo donation agreements must contain language that the embryo donors are not the parents of the child. The parties must be all in agreement that the embryo donors should not be entitled to access or custody of the child, and that they should not be financially responsible for supporting the child.