Legal Representation During Your
Surrogacy Process For Gay Couples

by Hilary Neiman, Esq.

The cost for undergoing a surrogacy process is significant, between $35-$45,000 for traditional surrogacy (using the surrogate’s ovum) and between $70,000-$90,000 for gestational surrogacy (using the intended mother’s ovum or donor ovum). Often times, to try to reduce costs, parents will cut corners. One avenue where parents have tried to reduce their fees, is to try and do the legal aspects of the surrogacy process themselves. While this method might work for some, in general it’s a better idea to have legal representation throughout your surrogacy process, both for your own protection and the surrogate’s protection.

A carefully and properly drafted contract is necessary, both so that all parties understand their rights and responsibilities, and also for any parental rights/adoption proceedings. A surrogacy contract should detail each parties’ duties, and all the critical issues involved in the surrogacy process, such as confidentiality, abortion/selective reduction issues, medical/psychological screening, parental rights, contact, compensation, and expectations. Both the parents and the surrogate need to feel comfortable with the contract before moving ahead.

Sometimes, parents will attempt to draft their own contract or use a contract they found on the internet. These contracts are often incomplete and leave out important elements. Further, they do not insure that all the necessary safeguards have been met. This can be extremely detrimental to the parties if any issues arise. For example, in Munoz v. Haro, intended parents and their traditional surrogate, who was non-English speaking, entered into a surrogacy contract.(1) However, the surrogate did not have her own attorney and did not understand the contract. In fact, the surrogate thought she would be able to keep the child upon its birth. The court ruled that although surrogacy contracts are lawful, and the contract would have been valid had there been proper safeguards (such as legal council), in this case, those protections were not met and the contract was therefore unenforceable.

Finally, courts often want to see certain language in the contract in order to grant parental rights to the parents. This is necessary if the parents want to obtain a pre-birth order, or their names on the birth certificate. It is also necessary to protect the intended parents if they separate or divorce during the surrogacy process. In Buzzanca v. Buzzanca, the intended parents used both donor ovum and donor sperm.(2) The parents filed for divorce before the child was born. The intended father claimed that he was not father of the child, since it was not his sperm, and should not have to pay child support. The court ruled that the intended father had to pay child support since he was responsible for bringing the child into the world. The consent that the intended father gave in his surrogacy agreement, gave him the legal responsibilities of fatherhood, which include child support. Had there not been a carefully drafted surrogacy agreement, the court might not have held that the intended father had parental rights and responsibilities.

While there haven’t been very many court cases involving third party reproduction, in those cases that are contested, courts turn to the surrogacy contract to determine rights. It is therefore important that parties take proper legal measures to protect themselves during their surrogacy process, and have an appropriate contract written by an attorney with experience in surrogacy.

Footnotes:

1. Munoz v. Haro No. 572834 (San Diego Super. Ct. 1983)

2. Buzzanca v. Buzzanca 61 Cal. App. 4th 1410

Hilary Neiman of The National Adoption and Surrogacy Center, devotes her practice exclusively to family formation through adoption and assisted reproductive technology, including all aspects of surrogacy, sperm donation, egg donation, and embryo donation. Hilary brings a unique perspective to family creation combining a great deal of knowledge and experience in the area with her warmth, caring, and understanding of the issues involved in surrogacy and adoption. Hilary holds a Masters of Science, a Juris Doctorate, and is currently a candidate for an LLM degree in International Law. She frequently lectures on family building in the gay community.

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