Introduction to Surrogacy

What is Surrogacy?

• Surrogacy [noun] is an arrangement where a woman carries an embryo for another person.  
• A surrogate [noun] is the women who becomes pregnant for another.
• A surrogate is sometimes referred to as "surrogate mother", "gestational mother", "birth mother" and "gestational carrier." 

Traditional vs. Gestational Surrogacy?

• In traditional surrogacy the surrogate's own egg is used.  She is biologically related to the baby. 
• Traditional surrogacy is sometimes referred to as "partial surrogacy."
• In gestational surrogacy the surrogate has no biological relationship with the baby.
• Gestational surrogacy is sometimes referred to as "full surrogacy."

Who needs to consider Surrogacy?

• The female partner does not have a uterus that can support pregnancy.
• The female partner has a medical condition that makes her unfit to carry a pregnancy or it poses a risk to her life.
• The female partner has a history of implantation failures.
• Single or homosexual couples.

What is a Surrogacy Contract?

A surrogacy contract is a legally binding written contract between the intended parents and the surrogate.  The contract defines each party's rights and responsibilities before, during, and after the surrogacy journey. 

Intended parents have their own counsel and the surrogate has her own independent counsel.  All parties work together to create the contract.

The contract contains:

• Financial: Including base compensation, additional expenses, and a payment schedule
• Risks & Contingencies: Medical and situational risks associated with pregnancy including termination, loss of reproduction function, etc.
• Surrogate Responsibilities: Stipulations around sexual activity, drug and alcohol use, diet, etc.
• Additional agreements: Clauses specifying who can attend medical appointments, what information can be shared and to whom etc.
• Much more!

What is an escrow account?

An escrow account is an account owned by an independent party that holds funds while all parties to a contract perform their obligations.

In a surrogacy agreement, a specialized escrow company [or attorney] holds the funds of the intended parents in trust and disperses them to the surrogate [and others] at the times and amounts specified in the escrow contract.  

The escrow company ensures that both the intended parents and surrogate are performing their agreed upon duties before money is dispersed from the trust account.

What is a pre-birth or post-birth order?

A pre-birth or post-birth order is a document that establishes the intended parent(s) as the legal parents of the baby that will be born.  Depending on which state the baby will be delivered in determines the type of document that is filed with the state.  The intended parents' lawyer works with the state, county, and hospital during the second trimester and the documents are prepared at least two months before birth.