Gestational Surrogacy – in which a woman agrees to carry an embryo to term on behalf of a couple – can be a wonderful way to expand your family. The advances in Assisted Reproductive Technology (ART) that make this possible are incredible! However, as seen in so many celebrity headlines over the past few months, the legal side of the equation hasn’t quite caught up with the medical side. Couples and would-be surrogates embarking on this journey need to pay extra attention to protecting all those involved, in the face of any potential challenges.
Some recommendations on what to consider:
· While some states have statutes that strictly govern the use of surrogacy and agreements, others – such as North Carolina - have no statutory authority. As such one must not only consider where they (as the Intended Parents – “IP’s”) reside but where the gestational surrogate resides as well. Contracts must be drafted to protect both the IP’s and the Surrogate and they must follow any applicable laws in the state where the IP or Surrogate reside.
· Once a Surrogate is determined, the IP’s and the Surrogate would then work closely with their own attorney to draft an Agreement that governs the rights, responsibilities and liabilities of each party, and establishes the rights and legal responsibilities for the child.
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· Other critical options to consider: whose genetic material will be used to create the embryo? For same sex male couples, medical tests may determine who is more viable or if both men are healthy donors, there is always the option to implant two embryos, one from each male donor, and take the gamble on one or both becoming viable and healthy babies. For same sex female couples, again medical tests may determine whom is the best carrier. Parties can also consider one to carry and the other female to donate the egg.
· What happens if you opt to freeze remaining healthy embryos and the parties later separate and/or divorce? Are the embryos property? Who gets possession of the embryos? There is case law evolving as couples divorce and then battle it out over the remaining embryos. Of late, most courts are ruling in favor of the party whose desire it is to not procreate – but that may change over time and depending on the facts and circumstances.
· Does the state you live in allow for the IP’s to have a pre-birth Order? Once the Surrogate reaches viability, typically 26 weeks, some states will then issue a pre-birth order to the IP’s. The pre-birth order would allow the IP’s names to be listed as the legal parents on the birth certificate once the child is born.
All of these options should be considered when thinking about using a Surrogate. While the path may vary, and while you may hit a few bumps or a fork in the road, if you proceed with caution and obtain legal advice from an attorney experienced in ART, the journey should be a smooth one – and the end result will be nothing short of a miracle.
Founded in 2008 by Nicole H. Sodoma, Sodoma Law is primarily a Family Law practice based in Charlotte, NC. with concentration in the areas of separation divorce, child custody, child support, alimony, equitable distribution, prenuptial and post nuptial agreements, surrogacy, and parenting plans for non-traditional families. Sodoma Law also handles estate planning, business law and appeals. The main office is located at 211 East Boulevard in Dilworth’s historic Walter Brem House. For more information, call 704-442-0000 and check out www.sodomalaw.com.