By Eric Harvey, J.D. | Legally reviewed by Aviana Cooper, Esq. | Last reviewed July 28, 2023
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Surrogacy is an assisted reproductive technology that provides an option for individuals or couples who are struggling with infertility. It also provides a path to parenthood for LGBTQ+ couples. Advances in reproductive methods, such as in vitro fertilization (IVF) or artificial insemination, provide alternatives for the creation and implantation of an embryo for pregnancy.
A surrogate agrees to become pregnant for the purpose of giving the child to another individual or couple. Parties to a surrogate arrangement typically enter into a surrogacy contract/agreement which details the terms of the process, including costs. Once you make the decision to use donor sperm, egg donors, or a surrogate to start your family, it can be an exciting time for everyone.
However, fertility and surrogacy laws can be extremely complicated. Whether you're a same-sex couple, another couple in the LGBTQ+ community, or a heterosexual couple, working with a family law attorney in a surrogacy is always a good idea.
Most attorneys advise against entering into a donation or surrogacy agreement without first consulting a lawyer. Here are 10 reasons to seek legal advice before signing on the dotted line.
A lawyer experienced in working with prospective parents and surrogates can discuss with you, right at the outset, what you can expect in terms of timeline and costs. They can also help you anticipate any legal issues that could arise. They can answer any legal questions you may have before beginning the process. Intended parents will benefit tremendously from working with a licensed family law attorney.
It's almost impossible to remain objective in selecting a surrogate mother or surrogate person on your own. It's always hard to do this because the decision is so fraught with emotion.
When it comes to choosing a surrogate, it's important that you approach the process with objectivity. It is only from such a viewpoint that a surrogacy arrangement can be effectively drafted. Surrogacy attorneys know the legal process of commissioning a surrogate pregnancy inside and out. They can be a rational voice when things get challenging.
An attorney experienced in working with prospective parents and surrogates has established contacts and relationships that can expedite the process of locating potential candidates. Assisted reproduction can require a great deal of networking. Family law attorneys experienced with surrogacy will have contacts with whom you'd likely benefit from working.
A surrogacy law expert and their staff have the experience and the skills required to conduct appropriate reference and background checks on potential surrogates. Whether it's any legal issue that could arise around egg donation or a parentage-related claim by the biological mother, family law attorneys can help you navigate any difficult surrogacy-related legal issue. They can do so during the pregnancy. They can also do so after the child's birth.
Attorneys experienced in surrogacy law have also established professional contacts who can conduct the necessary medical and psychological screening of potential candidates. It's difficult to find a surrogate or a gestational carrier. Family law attorneys can help with that, as well.
Once a candidate is located, your attorney is better able to address the sensitive subject of money with the surrogate. An experienced lawyer knows what charges are customary. They will be much less likely than you to feel pressured to agree to inappropriate sums. The process of surrogacy, from those associated with using fertility clinics to those related to the gestational surrogate's medical expenses, can be very expensive. A lawyer can help you manage these expenses. They can help you make wise choices with your money.
Your attorney can help you set up the type of relationship that best suits you and the surrogate, regarding the degree of contact and involvement during the pregnancy. The legal parents may want the biological mother not to have contact with the child after the birth. Parental rights can be a difficult issue to navigate after the child's birth. The birth mother may want to dispute the custody of the child. An attorney can help manage such situations as well as others.
With an attorney, you have an intermediary to help resolve any disagreements that arise between you and the surrogate during the pregnancy. If a dispute related to parentage arises, an attorney can certainly assist with that, as well. A lawyer can help with pre-birth orders and post-birth legal situations.
Whether it's traditional surrogacy or any of the other types of surrogacy, it's a good idea to work with a family law attorney. They can help with all legal issues that can arise during surrogacy. Even in situations where there might be a dispute over the validity of the birth certificate or when some unforeseen legal situation arises during an embryo transfer, an attorney can help.
An attorney can help draft an enforceable surrogacy contract that addresses the important issues and the contingencies that could arise before, during, and after the pregnancy. They can ensure the contract meets all the requirements under the surrogacy laws in your state.
Whether it's related to the gestational carrier's reproductive health care or to providing proper disclaimers to all the parties, it's important that an attorney draft an effective gestational surrogacy contract. Such a contract can specify that the intended mother, intended father, or intended parents take full custody of the child after birth. This is typically the arrangement people choose.
It can also specify things like:
It's important to have a well-drafted surrogacy agreement in place. It can provide very important protection against many negative legal situations.
With an attorney on your side, you stand the best chance of achieving your objective — having a child. The resulting child's future could be impacted by any difficult legal circumstances that might arise if you weren't careful early in the surrogacy.
Surrogacy laws can be complex. A skilled legal professional can help draft an enforceable surrogacy contract that addresses the important issues. The contract also can address contingencies that could arise before and during the pregnancy as well as after the birth of the child. An experienced family law attorney can help explain your state's rules.
Contact a qualified family law attorney to make sure your rights are protected.
Get tailored family law advice and ask a lawyer questions. Many attorneys offer free consultations.