FAQ About Surrogacy And Fertility Law

What Is The Legal Process For Surrogacy?

In Ohio, surrogacy is generally a two-phased legal process. In the first phase, the intended parent(s) and gestational carrier (and her spouse, if applicable) negotiate and sign a gestational carrier agreement. This agreement defines in great detail the rights, responsibilities and expectations of all the parties. In the second phase, which begins between 18 and 20 weeks gestation, the parties should secure a court order naming the intended parent(s) the legal parents of the child.

In Illinois, where there is statutory law about surrogacy, surrogacy is generally a single-phased legal process. Like in Ohio, the intended parent(s) and gestational carrier (and her spouse, if applicable) negotiate and sign a gestational carrier agreement that defines in great detail the rights, responsibilities and expectations of all the parties. Provided the agreement also meets the statutory and administrative requirements set forth in Illinois, a second phase parentage action is generally not required.

Does Location Matter?

Yes! In the United States, state law governs surrogacy arrangements. The process for surrogacy and what is permitted (and not permitted!) varies widely from state to state. Ohio and Illinois, where we practice, are surrogacy-friendly states.

Have There Been Recent Advances In Assisted Reproductive Technology?

Over the past few decades, perceptions about surrogacy and assisted reproductive technology have changed for the better. While originally little was known about in vitro fertilization (IVF) and assisted reproductive technologies, these tools have proven repeatedly to be successful alternatives for families who have children by collaborative means.

In-vitro fertilization is the out-of-body fertilization of an egg by a sperm. The resulting embryos are then transferred into an intended parent or surrogate.

The first child born through use of assisted reproductive technology was born in 1978. The doubts surrounding the process generally stemmed from concerns over the technology. As those questions have been fully answered in the years that followed, IVF and collaborative reproduction have become widely accepted.

Laboratories using assisted reproductive technologies continue to improve their methods, but it is still important for intended parents to do their own research as well. They should know the statistics of their selected laboratory or physician, which are usually available online or upon request from the facility. This research will inform intended parents about the success that the lab has had with particular technologies, as well as the success with particular donors and parents grouped by age.

It is now possible to test the embryos for genetic traits prior to transferring that embryo into the surrogate's uterus. This helps alleviate concerns prospective parents may have about the health of their embryo.

If I Use An Egg Donor, Am I Legally Considered The Mother?

In Ohio, no statute sets out the roadmap to establish parentage when the pregnancy is the result of egg donation. However, it is still possible to be named as the mother on the birth certificate, or, if you are a single male, to have only your name on the birth certificate. Most Ohio courts recognize the rights of the Intended Parent using donor gametes. Additionally, statutes and case law that apply to sperm and embryo donations can also be argued to help establish your rights as a parent. In Illinois, at least one parent must be biologically related to the child in order to establish parentage under the statute. If an egg donor is used, to be considered the legal mother, the sperm of your partner must be used.

How Can I Protect Myself And My Family As We Begin The Surrogacy Journey?

There are several steps you can take to keep you and your family safe as you proceed on your surrogacy journey:

Learn all that you can about your surrogate: Perform a thorough background check of your surrogate, including her credit report as well as her criminal, mental health, and medical histories. Meet your surrogate and her family, and make sure your value systems align. Before moving forward with the surrogacy, make sure she (and her partner, as applicable), passes thorough medical and mental health evaluations.

Learn all that you can about your intended parent(s): Perform a thorough background check of your intended parent(s) and make sure the intended parent(s) passes the necessary medical and mental health evaluations. Meet your intended parent(s) and their family, and make sure your value systems align.

Research the matching program: If you plan to use a matching program, or your surrogate/intended parent(s) is working with a matching program, be sure to investigate the agency itself. Review the program's website and research the company's owner and director. Ask for references and look for reviews (Facebook and other professionals in the field can often be good sources) to learn more about past client experiences. Make sure you understand how fees and expenses will be handled.

Hire an experienced attorney: Surrogacy is a big step for your family and your future. With so much at stake, you want trusted and experienced counsel to guide you through your journey. Whether you're an intended parent or surrogate, it is important for you to have your own, independent legal counsel who will draft and negotiate your gestational carrier agreement, seek a birth order, and protect your parental rights.

What About Health Insurance?

One of the most important components of any surrogacy plan is health insurance for the gestational carrier and the child, once born. Medical expenses in the United States can be very high and are generally not covered by the government. Obtaining private health insurance that covers gestational surrogacy or arranging a direct form of payment with the hospital is crucial (in some states, obtaining health insurance is even required). Health insurance may be available through the gestational carrier's workplace, her spouse's workplace, Affordable Care Act plans, or other private plans that are available as primary insurance, as back-up insurance if the primary does not cover, or for complications only. Special considerations apply to potential gestational carriers who receive Medicaid benefits or insurance.