The legality of surrogacy in the USA is widely talked about and is very much a burning topic for debate. It doesn’t help that its legality varies per state.
For anyone who is interested to give surrogacy a shot, it is critical to know the laws per state. This is helpful for both the surrogate and intended parents to study the basics and the legalities surrounding this procedure.
The Basic Elements of Surrogacy Agreements
A legal professional with a comprehensive background and experience on Surrogacy laws will play a crucial part when creating the agreement with the surrogate. It is also ideal to have independent or separate lawyers for both parties.
The conditions listed below are important to discuss and must be agreed upon with the surrogate.
- Names of parties involved, namely, the couple and the surrogate.
- Must be of Legal Age.
- Number of tries or attempts.
- The method of achieving surrogate’s pregnancy, like “no sexual intercourse.”
- Agreement to sustain and continue the pregnancy.
- A declaration that the mother cannot conceive a child and sustain a pregnancy.
- Statement of extensive medical and mental condition of the surrogate, as agreed.
- Medical insurance for all parties involved in the placement of the embryo.
- Modern technology or practices involving the placement of the embryo.
- Close monitoring and checking of surrogate’s activities as well as medication ingested.
- Agreement on regular prenatal medical care.
- Restriction on surrogate’s activities that may be considered dangerous to the pregnancy and the birthing process.
- Parental rights of the woman acting as the surrogate.
- The presence of the couple during birth.
- Legal or physical custody of the surrogate and the couple once the child is delivered.
- Financial considerations before, during, and after pregnancy.
- Confidentiality terms and conditions
The items above somewhat covers much of what is good to know, but it would be better to take note of other variables of conditions that is unexpected. One must be one step ahead to avoid having conflicting interests.
The surrogate’s compensation is truly one of the many concerns to expect when deciding to go for surrogacy. This answers the dilemma on how much a surrogate gets paid for her services.
Remember that whatever compensation a traditional or gestational surrogate gets, it is important to know that they are not an employee. Disqualification comes into play even if the surrogate does it for free, meaning, she is still not qualified under the definition of employee-employer relationship.
Gestational or Traditional Surrogacy
Traditional Surrogacy is the procedure wherein the surrogate goes through artificial insemination or invitro fertilization (IVF) by combining the eggs of the surrogate with the sperm of the donor. In this case, the surrogate has a genetic link to the child, which could be very risky because of the said genetic link.
Gestational Surrogacy on the other hand, is the procedure wherein the surrogate carries the pregnancy and delivers the child from an already fertilized embryo. The egg and sperm are from the couples who got the services of a surrogate. In this case, the surrogate serves only as a carrier for the child, and there is no genetic link involved.
Legal Matters Post-Birth Adoption
There are still a lot of items to check prior to or after the child’s birth. In many states, legal courts allow the intended parent’s name directly indicated on the child’s birth certificate. In other states, the surrogate’s name is the one placed on the birth documents, which can be amended in the future when the order for the intended parent’s come and be listed.
Some states allow pre-birth order but under certain circumstances. The main point is to know and understand the laws of each state in terms of surrogacy.