Surrogacy: What Does The Process Look Like? By Allie Weinstein

As a fertility attorney, I’m typically the last person my clients come to in their long, emotionally wrought path to parenthood. By the time they are in my office (or zoom room, these days), they have been through war: egg retrievals, failed transfers, miscarriages, and other traumas.

Ultimately, they have made the decision to use donor gametes and/or a surrogate and need my legal counsel. 

But what does the surrogacy process look like before and after my clients see me?

Step 1: Make the decision to use a surrogate.

For most heterosexual couples, they didn’t plan on becoming parents through surrogacy.  Making the decision to use a surrogate is often emotionally challenging and difficult.  Mental health professionals can help Intended Parents move from grief to acceptance of this path to parenthood.

Step 2: Got embryo(s)?

Are you lucky enough to have remaining embryos? Do you need to do another retrieval, sigh? Do you need donor gametes or embryos? If so, you’ll need a fertility attorney to have a contract drafted.  It’s a good idea to have your embryo(s) on ice before you match with a surrogate.

Step 3: Am I going to work with a Surrogacy Agency or do this independently? Matching with your Surrogate.

If money isn’t an issue, I highly recommend using a reputable surrogacy agency to guide you through this journey and serve as a middle person between you and your surrogate.  Amongst the handful of things agencies do is screen surrogates and match their clients with surrogates. Sadly, there are more regulations for food trucks than for surrogacy agencies so please be careful when choosing an agency.  I recommend having your agency’s contract reviewed by an attorney BEFORE you sign it.  A fertility law attorney, amongst other things, can make sure your agency isn’t charging you for unnecessary items, that payments are staggered depending on outcome (ie: if a pregnancy achieved), and a limited number of re-matches are included in the price.

If you’re doing this without the help of an agency, you will need to find your surrogate on your own. I’ve seen clients find their surrogate on Facebook groups or have friends or family member’s volunteer.  Be sure to screen your surrogate with a in-home visit, background check, etc. 

I could write an entire article on what makes a good match as it is a complicated and delicate art.  I don’t have the space to do so now, but I will advise you to make sure your and your surrogate’s values align. 

Step 4: Have your surrogate medically screened.

Before you spend non-refundable money on a fertility attorney, let’s make sure your surrogate can medically be your surrogate! Hence, your IVF physician needs to examine her and her medical records and declare she is fit to be a surrogate. 

Step 5: Psychological screening for your surrogate and yourself (and partner, if applicable)

Make sure everyone passes a psychological screening with a credentialed mental health provider.

Step 6: Purchase medical insurance for your surrogate, if necessary.

Some surrogates already have surrogacy friendly insurance. You’ll need to hire an insurance expert to review their policy to find out and to see if the insurer has a right to lien the surrogate’s compensation.  If you need to purchase insurance for your surrogate or future baby, now is a great time to look into options. 

Step 7: Hire a fertility attorney.

It’s really important to hire an attorney expert in this niche field.  Surrogacy contracts are incredibly detailed and nuanced. Often my clients say “I would never think to include that, but I’m so glad it’s in there.”  Without an experienced attorney, important provisions could be left out. This is not the time to have your “best friends cousin’s sister” who is a lawyer draft help you out. 

Further, the code the governs surrogacy is detailed and specific.  If your attorney misses a requirement, you may need a Court Appearance in order to obtain a parentage order (more on this later). This will cause you time, money, and angst. 

A competent fertility attorney will meet with you (and your spouse) to review the contract. Key provisions of the surrogacy contract include, without limitation, parentage provisions (where-in the Intended Parents are contractually and legally the parents of the child to be conceived), the caselaw and code governing surrogacy in the applicable state, benefits and compensation you want to provide surrogate, establishing an escrow account, liability, number of embryos to be transferred per embryo transfer cycle, assumption of risk, a statement re: insurance for the surrogate and payment of her medical expenses, circumstances (if any) when the surrogate would get an abortion, travel restrictions, and diet and behavior restrictions. 

Once your attorney has a draft of the contract you understand and are satisfied with, your surrogate and her spouse (if applicable) will need a separate attorney to review and negotiate it on his/her/their behalf.  California Family Code section 7962 requires each party be represented by separate, independent counsel of their choosing. 

Finally, the parties will agree to the terms of the contract and all parties will need to sign and notarize.  Only then will legal clearance be given the IVF clinic, meaning your Surrogate can then start injectable medications and proceed with the long awaited embryo transfer.

Step 8: Money!

It’s time to fund escrow.  There are numerous independent escrow companies that specialize in escrow for surrogacy arrangements.  I’d use one of these companies as they are familiar with surrogacy contracts.  Most surrogacy agreements I’ve seen require escrow to be funded within 10 days of signing the contract or before starting injectable medication, whichever is earliest.  If it’s a gratuitous arrangement between the Intended Parents and Surrogate (meaning the Surrogate is not being compensated), the escrow requirement can be waived.

Step 9: Pre-Birth Order

There is nothing I love more than getting text, emails, and phone calls from the Intended Parents telling they are pregnant! I remind my clients that once their surrogate is about 12 weeks pregnant, we need to start drafting the pre-birth order.  In California, you can obtain this judgment for parentage while your child is in utero. This is utterly amazing as it’s a court order relating to an unborn child…maybe I’m just a law nerd, but I find this profound.  The pre-birth order declares the Intended Parent(s) as the sole legal parent(s) of the child the Surrogate is pregnant with and that the Intended Parents have all financial and legal obligations for the child. Just as important, it also orders that the Surrogate (and her spouse, if applicable) are NOT the legal parent of the child and has no financial obligations or legal rights for the baby.  Lastly, it orders the birth clerk to put the Intended Parent(s) name on the birth certificate and not the Intended Parent(s).  A certified copy of this Judgment is sent to the birth clerk at the hospital where the birth is expected to occur. My clients (whether the Intended Parents or the Surrogate) are always comforted and happy when I send them these judgments back from the Court. 

Step 10: Enjoy your baby!

It’s been a long road. Kiss that baby for me.