Legal Consideration for Surrogacy

The decision to use a surrogate can be an exciting and worthwhile journey. Surrogates are compassionate women who carry a pregnancy for intended parents who cannot achieve pregnancy on their own. Intended parents who chose this path must consider surrogacy laws in their state, contractual agreements, insurance coverage, and parentage laws.  Finding a qualified assisted reproductive technology (ART) attorney can help with this process immensely.

 

Guided Fertility ™ interviewed reproductive attorney Amy Demma, Esq. regarding legal considerations for surrogacy. Ms. Demma is a New York licensed attorney in reproductive law and is actively engaged in reproductive advocacy and non-profit services.  She has served as president of the board of directors for RESOLVE and strategic advisor for Fertility Within Reach.  

 

 

1. What legal rights does a surrogate have toward the child?

 

In gestational surrogacy arrangements, the surrogate does not have a genetic connection to the child, as the eggs used to create the embryos were not her eggs. Without a genetic connection, a gestational surrogate has no standing claim to any legal rights, parentage, and other claims, including inheritance, concerning the child.

 

In traditional surrogacy, the surrogate’s eggs are used to achieve the pregnancy; therefore, she has a genetic connection to the child. Traditional surrogacy carries legal risks to the intended parents (and child) relative to the surrogates’ genetics. Many states, like New York, do not allow this type of surrogacy. Some states accommodate traditional surrogacy, and any party considering such an arrangement should seek qualified, competent legal counsel before embarking on their family-building journey.

 

2. When selecting my ART attorney, what criteria should they meet? 

 

While many well-meaning and otherwise skilled “family law” practitioners, such as divorce attorneys, have begun to offer surrogacy services, I see no connection between the two areas of law. After all, divorce attorneys dismantle families while ART attorneys help families come to be.

 

When screening a ART attorney for legal counsel, the following questions should be asked:

 

How long have you been in this specific area of practice?

How many surrogacy cases have you handled?

What professional development organizations are you active in, for how long, and in what capacity?

Can you provide the names of law colleagues who can attest to your competency in this area of law?

Can you provide the clients' names who can attest to their experiences with your practice?

 

 

3. Can attorneys help match a couple/person with a surrogate?

 

New York law prohibits the attorney who is providing legal services (related to the Gestational Surrogacy Agreement) to be engaged in matching. Other states do not restrict the role the attorney can play. The New York legislature took great care to avoid conflicts of interest.

 

Attorneys in New York may run matching programs, but those attorneys cannot provide legal counsel relative to the Gestational Surrogacy Agreement. Other states may not have that same prohibition, but seeking legal counsel unrelated to your matching program is considered best practice.

 

4. What are the best resources to learn about surrogacy laws in my state? 

 

Not all states have surrogacy statutes. Many states allow for surrogacy practices in the absence of a surrogacy ban. A licensed ART attorney should answer all questions of a legal nature. I tell intended parents and surrogacy candidates, to find a ART attorney who does not bill for consultations. If you call an attorney who bills for consults, hang up and contact another attorney.

 

The directory at the Academy of Adoption and Assisted Reproduction Technology Attorneys website vets qualified surrogate attorneys: www.adoptionart.org

 

 

5. Can a surrogate use her medical insurance for doctor visits, screenings, and procedures?

 

Concerning prenatal care, a surrogate may very well have medical insurance that is “surrogacy friendly.” In NY, with some exemptions/exclusions/loopholes, insurance providers must offer maternity care even if the pregnancy is a surrogacy pregnancy. An early-day insurance review of the surrogate’s medical coverage is advised. The surrogate’s insurance may not be relied on for fertility treatments; doing so could be deemed insurance fraud.