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FAQ #41: What is the purpose of the advance directive section in a surrogacy agreement?
The advance healthcare directive in a surrogacy agreement addresses scenarios where the surrogate faces life threatening conditions during pregnancy.
It allows intended parents to request life sustaining measures to ensure the child can be delivered even if the surrogate experiences a life threatening condition.
A typical section will state that when the Gestational Carrier is at a point of viability in her pregnancy and the treating physician believes placing the Gestational Carrier on life support is necessary for the child’s health, the Gestational Carrier and her spouse will agree to keep her on life support to continue gestation.
This section in the agreement will typically assign the uncovered medical expenses to the intended parents. Some provisions will have the surrogate prepare an advance directive ahead of time. As rare as this event may be, it’s an important section to go over in your contract review.
FAQ #42: What are some red flags for intended parents who seek out independent journeys?
1. A surrogate who is in another country. In most cases this is a hard to stop.
2. A surrogate who has been rejected by agencies. Agencies are knowledgeable about what is required for a surrogate to pass medical screening. If a surrogate applied with agencies and has been rejected, it is likely they will be rejected by your clinic.
3. When it sounds too good to be true. Surrogates are in high demand and there’s enough information about compensation for a surrogate to know the market rate. While surrogates give discounts to family members and friends, beware of the unknown candidate who offers to do it for free or well below market.
FAQ #43: What are red flags for a gestational carriers pursuing an independent surrogacy journey?
1. Micro-managing intended parents. If your intended parents show signs that they will micromanage your pregnancy, then they would benefit having an agency or agent so you don’t have to deal with them directly.
2. Inability to agree on the compensation. It’s important to have your compensation package set before the contract is drafted. If you aren’t able to agree with your intended parents on the compensation package or it is changed at the last minute, this is a red flag.
3. Intended parents who won’t set up an escrow account, won’t adequately fund escrow, or won’t keep escrow open long enough. Escrow accounts protect the surrogate by making sure the money is there to pay your compensation and expenses. Your lawyer should advise you on how much should be in the escrow account and how long it should stay open. If intended parents have trouble paying for it, it’s problematic.
FAQ #44: What should I be looking for in an IVF doctor?
1. People look at the pregnancy and live birth success rates on SART. The Society for Assisted Reproductive Technology is the primary organization dedicated to setting and maintaining standards of the highest level of care for individuals seeking IVF and other ART procedures.
2. People consider location because they may need to create embryos at the clinic. Consider how restrictive they are when it comes to surrogacy, whether their candidate will be disqualified here as opposed to at another clinic.
3. People should consider if they have someone on the team dedicated to the third party reproduction.
FAQ #45: Why does the surrogate usually get a housekeeping or childcare allowance?
Some intended parents might wonder, “Why are these in her compensation package?”
The purpose of the housekeeping and childcare allowances are so the surrogate does not need to be active doing housekeeping or childcare when she has a pregnancy-related disability. If she is forced to do these things, she might deliver the child prematurely, or suffer a miscarriage.
So in a way, this benefit helps the intended parents by giving the surrogate a benefit to not to push herself past her limits. Also, many IVF clinics do not allow children to be present, so a surrogate may need childcare to attend IVF appointments.
FAQ #46: How do we calculate lost wages if the surrogate has her own business or if she gets tipped?
There are a few ways to do it. One would be looking at her tax returns to seeing her reported income for the year and calculating a daily or hourly wage.
A second way could be looking at bank statements to see how much income is deposited as not all income may be reported to the IRS.
A third way could be self-reported income, but typically this may be capped at minimum wage or a reasonable rate.
A fourth way could be the cost of hiring a helper to assist her with her tasks. For example, a day care business owner could hire a helper to do her duties of watching children.
FAQ #47: What happens to remaining and unused embryos?
→ Fertility patients have four options for embryos they no longer need.
→ They can donate the embryo to another couple with an embryo donation contract.
→ They can donate it to science for medical research.
→ They can dispose and destroy the embryos.
→ Lastly, fertility patients can choose to keep the embryo frozen where it can remain frozen for years.
There is often an annual fee to keep embryos frozen.
FAQ #48: What is the purpose of the travel restrictions in surrogacy agreements?
No international travel.
Two reasons:
1. Most likely a parentage judgment won’t be effective outside the US. For example, in Mexico, the surrogate would automatically appear on the birth certificate.
2. Not too long ago, intended parents also had to worry about Zika virus transmission which caused birth defects.
Travel by plane. Travel by air may be dangerous for the pregnancy in the first trimester, and also in the third trimester.
There shall be no travel outside the state after x weeks and no travel outside 100 miles from the hospital after x weeks. This prevents the surrogate from having an early birth in a state unfriendly to surrogacy or where the parentage order is not recognized. Also medical expenses may be higher if an emergency birth happens while traveling.
FAQ #49: Is there a limit to the number of times I can be a surrogate?
In the US there is usually no limit on the number of times a woman can be a surrogate except in Washington, which requires a surrogate to not more than two successful surrogacy deliveries. This law may be intended to prevent someone from making a lifetime career out of surrogacy.
Many agencies limit a surrogate to 6 births and 2 prior c-sections.
FAQ #50: Why am I not allowed to clean up my cat’s litter box as a surrogate?
A surrogate should avoid cleaning their cat's litter box whenever possible because cats can carry toxoplasmosis, which can be harmful to the baby.
Cats can catch toxoplasmosis by eating rodents or other small animals and it comes out in their feces, so it can spread to people who touch a soiled litter box.
To prevent infection, keep your cat indoors and have someone else clean the litter box.
FAQ #51: What can or can’t I share on my surrogacy journey?
What you can say to others about your surrogacy journey will depend on your specific contract.
Most contracts will have a section on confidentiality.
Our standard clause prohibits revealing information which could identify the other party, such as their name, photo, and where they are located.
Generally, parties are able to communicate about their surrogacy experience, post and tell others they are in a surrogacy journey, or post photos of their pregnancy.
The terms of the contract, such as compensation, may also be confidential.
Be sure to read the confidentiality sections as yours may differ from ours and it will also be up to negotiation.
FAQ #52: Do I need to notarize my signature on the surrogacy agreement?
Some states require notarization of the surrogacy agreement.
These include California, New York, Washington (though witnesses are possible).
Sometimes international intended parents may need to have a notarized surrogacy agreement, so even if the law doesn’t require it, the parties may still notarize.
Finally, sometimes notarizing is a good idea to prevent disputes about whether someone signed the contract.
FAQ #53: How do I notarize the contract?
You can print it out and go to a public notary. Your local mailbox store, UPS and Fedex Kinkos often have notary, printing and scanning services.
If your lawyer say it’s ok, you can also use an online notary.
Some websites like notarize.com will notarize at any time, although you do need a social security number.
If you are not from the US, you may need a special web notary that your attorney can arrange, or you can go to a US consulate or embassy to have the international equivalent done.
FAQ #54: What happens if a surrogate loses her job during the journey? Is she still entitled to lost wages?
If a surrogate loses her job during the journey, she will not be entitled to lost wages.
If she gets a new job and does not have the paystubs required, she will also not qualify for lost wages.
If a surrogate loses employment, she should apply for unemployment insurance.
In California, Unemployment insurance lasts up to 26 weeks and replaces up to 60% of her previous wages.
The surrogate should also notify the intended parents and agency if her insurance will be terminated with the job loss.
The parties can decide whether to continue the insurance under COBRA.
If an employer terminates a surrogate because of her pregnancy, it could be illegal discrimination.
FAQ #55: What should I look for in an escrow company for my reproductive journey?
→ FINANCIAL STABILITY
Select a financially stable escrow provider with a strong team with financial and professional experience to manage transactions and disbursements.
→ TRANSPARENCY
Ensure the escrow company has a way that you can access the balance and disbursement requests so errors and unauthorized transactions can be caught quickly.
→ REPUTATION
Seek recommendations from professionals or from former clients to confirm the reliability of your potential escrow company.
→ PROTECTION
Ensure the escrow company has adequate bonds to cover against cyber-attacks, theft, and errors to cover potential losses.
FAQ #56: Why do I see surrogates holding french fries for their transfer day posts?
Surrogates holding french fries for their transfer day posts is a playful trend that has emerged on social media.
The idea behind this is based on a humorous correlation between eating fries and embryo implantation. Although there are no scientific evidence, some posts suggest that the level of salt in fries could potentially support embryo implantation.
It's a fun way for surrogates and those involved in IVF journeys to share their experiences, fostering a positive and supportive community around this significant moment in their lives.
FAQ #57: Why does a donor get a companion to travel with her in the contract?
The companion that the donor chooses assists the donor on the day of the retrieval by accompanying her to the procedure where she will be under anesthesia.
It is not safe for the donor to travel back to her hotel alone after the retrieval.
In addition, the donor will offer companionship and support during the retrieval trip, helping ensure her safety as she will be in a new city.
FAQ #58: Why does a donor or surrogacy agreement have a conflict of interest section?
In nearly all surrogacy and donation agreements, the intended parents will pay for the donor or surrogate’s representation for the contract.
This is because the donor or surrogate shouldn’t pay out of pocket for their attorney.
It does create a potential conflict of interest with their attorney when the other party pays for them.
However, the various state bars allow this conflict of interest to be waived if the party is made aware of the arrangement, the risks, and knowingly agrees to proceed.
This why there is a conflict of interest section in nearly every donor or surrogacy agreement.
FAQ #59: How do I calculate the number of weeks I am pregnant based on embryo transfer date?
Normally, your first week of pregnancy starts on the day of your last period.
Your first week of pregnancy after an embryo transfer is 2 weeks from the date of the embryo transfer and a number of days equal to the age of the embryo.
This is because the embryo transfer date is similar what would naturally be your ovulation date which is typically two weeks after your last period.
But the embryo is already a few days old so this counts towards the number of days you are pregnant.
FAQ #60: Should my surrogacy or gamete donation lawyer be located near me?
You do not need to choose your lawyer based on where you live.
Your appointment to review the contract will be by video or by phone call, not in person.
You will not need to go to the lawyer’s office to read or sign documents.
You can sign our representation agreement electronically, and sometimes the contracts can be signed electronically.
For contracts that need an in-person notary, you can go to any notary public to sign.
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