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FAQ #21: When can the escrow or trust account be closed in a surrogacy case?
The amount of time the escrow stays open will be a term in the contract between the parties. In cases where there is a birth, the escrow usually stays open 6-12 months after the birth.
This is because it can take months after a birth for the insurance company to process the bills, and the uncovered amount will be the responsibility of the intended parents to pay.
The escrow can be open longer if there is a dispute with the insurance company or there is a lien by the insurance company.
It is in the surrogate’s interest to try to keep the escrow open as long as there could still be bills outstanding.
Some contracts extend to escrow closing in the event of complications before or after delivery so it does not close before the insurance has processed all outstanding services.
FAQ #22: How much should intended parents deposit in the escrow account in a surrogacy journey?
If the parties are working with an agency, the agency usually will provide the amount.
If it’s not provided, one rule of thumb is around $20,000 more than the base compensation.
However, this amount may vary depending on if there are expected lost wages for the surrogate, as well as if the escrow pays for the insurance.
Some intended parents are reluctant to put in the full amount until the surrogate is confirmed pregnant.
So there may be multiple deposits, one at the time of legal clearance and one at the time of a pregnancy confirmation.
FAQ #23: What are things I should be looking into when I review an agency agreement?
When reviewing an agency agreement, it's essential to consider various aspects. When selecting an agency, you'll be presented with a contract that outlines the terms of your partnership.
Here are some key factors to keep in mind:
1. Agency Fee: The agency fee is a critical consideration. You should determine when it's due and whether it's refundable. Some agencies charge at the match confirmation stage, while others collect it beforehand.
2. Rematch Fees: Be aware of potential rematch fees. The reasons for these fees can vary significantly.
3. Duration of the Contract: Some agencies may charge a fee to extend their services beyond a certain period. This timeframe should be reasonable to avoid excessive costs.
4. Services Provided: Pay close attention to the scope of services covered by the agreement and what isn't included.
FAQ #24: What advice do you have for surrogates regarding intended parents who want to transfer multiple embryos per transfer?
We are not medical professionals, and we cannot provide medical advice, however, we can advise our surrogates the following:
1. If the contract does not specify the number of embryos to be transferred, we suggest amending the agreement to clearly define the maximum number of embryos to be transferred. This helps eliminate any surprises or pressure on the day of the transfer.
2. It is important for surrogates who have not experienced a multiple pregnancy to consult with the IVF Physician about the associated risks before agreeing to a multiple embryo transfer.
3. Surrogates should ensure they are adequately compensated for carrying twins or multiples, understanding that the multiple fee is typically smaller than the singleton fee.
4. Paying attention to the dates related to a "full term" delivery, where all compensation vests, is crucial. These dates may need to be adjusted if the surrogate is carrying multiples, as the gestational period could be shorter.
FAQ #25: How much does a surrogacy journey in the US cost?
Here are some facts about journeys in the US from a recent poll of intended parents conducted by SEEDS.
The average cost for a surrogacy journey 2021-2023 was $161,000, and intended parents budgeted $131,000 on average.
60% paid more than $150,000, while only 27% of intended parents budgeted that amount
Average surrogate compensation increased from $45,000 to $50,000 from 2019 to 2023. This number expected to increase in 2023 and onward.
73% of intended parents who completed a journey reported that the financial burden was a barrier to surrogacy.
If you are starting a surrogacy journey, consider working with us so you can take advantage of our Seedcoach benefit and gain valuable financial coaching to help you budget and find grants, benefits and fundraising opportunities.
FAQ #26: What if the surrogate wants to keep the baby?
In California, surrogates would typically lose in court if they attempt to win and keep the baby.
This outcome is based on the 1993 California Supreme Court case, Johnson v. Calvert, which dictates that courts should uphold the intent of the parties at the time they signed the surrogacy agreement.
If a surrogate is determined to keep the baby and a judgment of parentage is in place, the hospital is likely to recognize the intended parents as legal parents, resulting in the child being taken away.
In most cases, this judgment is obtained well before the surrogate's birth, and if the surrogate changes her mind afterward, the judgment specifies that the intended parents should take immediate custody of the child.
FAQ #27: Can an attorney for the egg donor or surrogate really represent them properly if their attorneys fees are paid for by intended parents?
It is customary for the intended parents to pay for the donor’s or surrogate’s lawyer so they are not paying out of pocket for their attorney.
However, the rules of professional responsibility governing attorneys say it may be a conflict of interest when another person pays for the attorney fees of the other party.
This is why your surrogacy or egg donation agreement will acknowledge if attorneys fees are paid for by the intended parents and state that the donor/surrogate acknowledges the potential conflict of interest and waives of the conflict of interest.
The donor/surrogate’s attorney should vigorously represent the donor/surrogate and not disclose any confidential information to intended parents or any other party without consent. The payment of attorneys fees should not influence their representation.
FAQ #28: What happens if the intended parents are not able to attend the birth of the child?
During the covid-19 pandemic, this became a commonplace occurrence for intended parents who were abroad.
Assuming a judgment is in place, a hospital will recognize the intended parents as the parents.
However, the intended parents are not present and have not advised the hospital, the child will be reported as abandoned to child protective services.
The attorney for intended parents can prevent this by preparing a power of attorney giving another person (sometimes someone from the agency) the power to make medical decisions, complete the birth certificate and discharge the baby from the hospital.
Intended Parents should be sure to let their attorney know if they can’t attend the birth so a power of attorney can be prepared.
FAQ #29: What happens if the Intended Parents divorce during a surrogacy journey?
In the event the intended parents divorce or separate and the surrogate is pregnant, the Gestational Surrogacy Agreement will continue as planned.
Most agreements will say the custody rights to the child will be resolved by the agreement of intended parents or by a court of competent jurisdiction.
The gestational carrier and/or her spouse will not have any parental rights or claim to the child if a separation or divorce occurs between the intended parents.
FAQ #30: If intended parents can’t write off surrogacy expenses on their taxes, what if they made the surrogate their employee?
This would be a bad idea.
First, employees have many protections which include workers compensation, anti-discrimination laws including harassment, and wage and hour laws, so it’s difficult to see how you could make a surrogate your employee.
Furthermore, an employee is always able to quit a job but a surrogacy contract cannot be terminated when the surrogate is pregnant.
It’s possible to imagine that requiring IVF, invasive procedures, and childbirth cannot be part of job requirements.
Whatever benefit could possibly be gained from writing off surrogacy expenses would be offset by the dangers of moving surrogacy into employment law.
FAQ #31: Why are intended parents trying to find a surrogate during open enrollment under Affordable Care Act?
Open enrollment, which begins November 1 and ends January 16 in most states, is an important time period for surrogacy journeys.
Many surrogates who have health insurance actually have plans which may be not surrogacy friendly.
Other surrogates may not have health insurance.
Open enrollment is a good opportunity to find and sign up for health insurance that has been reviewed and is surrogacy friendly.
A surrogacy friendly insurance policy can save the intended parents money and limit their exposure for the surrogate’s medical expenses.
If you are looking into surrogacy, be aware of your state’s open enrollment deadlines as it may be the one opportunity to obtain surrogacy friendly insurance.
FAQ #32: Should a surrogate’s boyfriend or partner be on the surrogacy agreement?
It depends on the situation. If the surrogate is engaged or plans to marry the partner, it is likely the partner will be included. If the surrogate is a long term partner living with the partner and/or the father of other children of the surrogate then it is also likely. If none of these situations apply the partner will probably not be included.
The partner is included so the partner will agree to deny any possible parental rights as well as follow certain activity restrictions such as no smoking or practicing abstinence before the embryo transfer.
FAQ #33: How long does a gamete donation agreement take?
The time starts after the representation agreement is signed, we have information from the agency, and the donor is medically cleared. We try to have a gamete donation contract drafted within a week's time.
We send our calendar to our clients to schedule a review. This can be done the same day, but the client should allow time to read the contract prior to the review.
After the review with our attorneys, the drafted agreement has added changes called a redline which is sent to the client for approval. Once the redline is approved, the contract is sent to the donor's attorney who reviews with the donor. This can take a similar amount of time, but sometimes it is faster than a week.
The donor attorney prepares a redline which the client receives. If all parties agree on the contract, the contract is ready for signing.
Legal clearance can then be issued to the clinic, allowing the donation to take place.
FAQ #34: How long does it take for the legal process in surrogacy?
The first step usually takes 1-2 weeks to draft the surrogacy agreement.
After that, we expect to hear back from the gestational carrier's attorney in about a week.
Following this, we enter a phase of negotiating and finalizing the agreement, which involves some back-and-forth communication.
It's important to note that in some states, documents need to be signed in the presence of a notary public.
This extra step may add some time to the overall process, as coordinating schedules and getting documents notarized can introduce some variability in how long it takes.
FAQ #35: Do I need an escrow account for surrogacy?
California law requires that if there is an agent or agency assisting with the match, an escrow account or trust account is required. New York also requires an escrow account if the surrogate is compensated. Other states may also require escrow.
In California, the trust account may not be held by the agent or agency, but by a bonded and licensed escrow company or an attorney.
It is a good idea to have an escrow account when the surrogate is compensated. Disputes over nonpayment are one of the biggest reasons the parties go to court.
FAQ #36: Can intended parents force their surrogate to terminate her pregnancy?
No. Intended parents cannot force their surrogate to have an abortion as it is a violation of the surrogate's bodily autonomy.
The surrogacy agreement will outline what the parties agree to regarding abortion and fetal reduction. The parties may agree that the surrogate will follow the intended parents' decision regarding abortion under certain circumstances while she maintains the right to preserve her own life and health.
If the surrogate breaks the contract, she may liable under the contract, but ultimately the surrogate makes her own bodily decisions.
It is important to go over these sections carefully with your lawyer before signing the contract.
FAQ #37: When should we be looking for a pre-birth order?
Pre-birth order states require a court to grant an order naming the intended parents as parents prior to the surrogate giving birth.
If the surrogate is in a pre-birth order state, the intended parents' attorney typically starts the pre-birth order drafting between 13 and 20 weeks of pregnancy.
The pre-birth order can take a couple months to be prepared, reviewed, signed by all parties, and then granted by the court.
You want to have sufficient time for the pre-birth order to be ready in case there is an early birth.
FAQ #38: What happens if a surrogate has a miscarriage?
When a surrogate is pregnant, she usually receives monthly compensation while pregnant. If she has a miscarriage, the compensation will stop. She does not need to pay it back if the miscarriage was not her fault.
The agreement will describe what happens in the event of a miscarriage. If it is not the surrogate’s fault, she may receive a fee for the miscarriage and for subsequent surgery.
Whether the contract ends or not also depends on the contract. In some contracts, the contract automatically terminate unless the parties agree to continue. In other contracts, a miscarriage does not cause the contract to terminate.
FAQ #39: Will the Alabama Supreme Court judgment recognizing embryos as children affect intended parents?
The Alabama Supreme Court recently held that destroyed frozen embryos are the same in law as deceased children under a wrongful death statute. This decision is only an interpretation of Alabama law, so it does not affect people living or with embryos outside Alabama.
If you do have embryos in Alabama, at least three clinics in Alabama have suspended IVF for the time-being.
The law also only applies to a civil wrongful death law and IVF clinics, however, this expansive reading of the Alabama constitution could be applied to other Alabama laws if embryos are legally treated the same as children's lives.
There are multiple states with similar personhood laws that could follow in Alabama’s footsteps. If you are concerned about the case, talk to your legislature, and join the voices of Resolve and ASRM in requesting change.
FAQ #40: “Why don’t you just adopt?”
This is not a legal question we get, but it is frequently posed to those pursuing surrogacy or gamete donation by friends or family members who may not know better.
From an adoption-ART lawyer's viewpoint, it's not so simple. In the US, there have been no orphanages for generations, and there can be anywhere from 40 to 100+ hopeful adoptive parents for every woman who chooses to place her child for adoption.
International adoption numbers have been decreasing every year as other countries limit adoptions abroad. Fostering is a great act of service but many times does not lead to adoption situations.
The choice of whether to adopt or to pursue third party reproduction has already been considered by everyone pursuing surrogacy or gamete donation. And there is nothing wrong with wanting a biological child or not seeking to adopt.
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