Surrogacy Abroad – The Latest Wave?

India is rapidly becoming a major player in the surrogacy business, for better or for worse. Many developed nations have outlawed commercial surrogacy as immoral, or they prohibit it for certain groups (homosexuals or single people). Therefore, individuals and couples seeking to grow their families through surrogacy are often forced to look elsewhere. India is becoming a favored destination for these families, since commercial surrogacy is legal, and a surrogate can be paid what seems a very small sum to the intended parents, but a fortune for the surrogate, thanks to differences in the standard of living and exchange rates.

Much has been made of the fate of the German couple who used an Indian surrogate to bear their twins, only to have the German government deny the children citizenship, and the Indian government do the same. But couples from Australia, France and other parts of Europe are turning to India over the United States for cost savings. Over the next couple of posts, we’re going to cover some of the drawbacks to using a surrogate in India (or anywhere outside the United States) to grow your family.

To whet your appetite, start here: a 60 minutes piece about an Australian couple turning to India for their gestational surrogacy. Watch it and comment below. We’d love to hear your thoughts.

Family Formation Law Offices has been in the family building business for nearly thirty years. Whether you are seeking to build your family through adoption, or third-party assisted reproduction, we have the skills and resources to help you. Call 1-800-877-1880 today for your free 15 minute consultation.

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Washington State Legislature Considering Gestational Surrogacy Bill

Washington State currently has a ban on paid gestational surrogacy arrangements. But that may change very soon. According to the Seattle Times, a bill has passed the State House, 59-39, allowing women to be paid to serve as gestational surrogates.

If it becomes law, the bill debated last Monday would set up a detailed system for entering into surrogacy contracts. The bill is now being considered by Washington State’s Senate.

Under the bill, House Bill 2793, surrogates would have to be at least 21 and have previously given birth to a child. Additional requirements include obtaining medical coverage for the pregnancy and immediately after birth, passing mental and physical examinations, and signing a written consent form. Intended parents also would have to meet certain requirements, including a mental health evaluation and an affidavit from a doctor attesting to a medical need for surrogacy.

Gay and lesbian couples would not need a medical affidavit. The measure also would give state-registered domestic partners access to the Uniform Parentage Act, a law regulating child support and custody.

California intended parents are very lucky, as you can see by this news article. California intended parents have long had the ability to obtain pre-birth judgments declaring them the legal parents of the children. While surrogacy is unregulated in California, there are many excellent programs run by experienced practitioners and attorneys, who can advise you on the best way to create your family. Family Formation Law Offices encourages you to visit our website to learn about using gestational surrogacy to build your family, including the costs, timeframe, and what to expect.

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Building Your Family – Embryo Donation

Embryo donation is the newest method of assisted reproduction and one we will be hearing about much more in upcoming times as people become familiar with the idea. Embryos are plentiful and donation is being popularized by the U.S. government. Typically donors of embryos are those men and/or women who have completed their families via IVF and who have remaining frozen embryos. Rather than donating these for scientific research or letting them be destroyed, they seek special families (defined here as single, married, gay or straight), who want children and who will receive these embryos and gestate them to term.

For the recipient family, this may be the family building solution they are seeking. The family does not have to spend the time and money and agony of creating embryos. Full medical information on the gamete donors is available; the recipients can negotiate the donation contract, which when executed will be upheld (Buzzanca). The Recipient will have control over the prenatal environment, and with very rare exceptions, the resulting child(ren) will not be the subject of a court battle. As in adoption*, the children born will not be genetically connected to the intended parents, but they will be full siblings of the donors’ children. The risk here is not that the birth parents will change their mind, but that the embryos will not implant well.

As in other IVF procedures, clinical implantation of the embryos is necessary and the recipient must be medically prepared for receipt. And as in other IVF procedures where there is donor genetic material, there must be a written consent of all the parties. (CA Penal Code 367G). Here, this would be in the form of an embryo donor contract or agreement. The embryo donor contract spells out the details and intentions of the parties. Contract provisions provide that the recipients are the intended parents and they will be deemed the parents of the child(ren) born of this donation without regard to physical condition or number. There is usually a recitation that the donor wishes no parental relationship or responsibility with respect to any child born of the donated embryo and has no responsibility if the embryos are blighted or don’t thaw well. Often there is a visitation provision which underscores the genetic ties between the children of both families.

Section 367G of the CA Penal Code raises the question that if the embryos were composed of donated gametes, does the original donor have to sign a consent to the donation of those embryos? Experts are divided. If the original consent to donation is a blanket consent, it may not be legally necessary. However, the better practice, both from a legal and a social responsibility standpoint, is to have the original donor sign a document indicating her/his knowledge of the (redonation) embryo recipient.

Again, because genetic material is not usually sold, the money that changes hands is very limited. Sometimes the recipients/intended parents will help defray the cost of storage fees. Medical costs of the embryo creation are borne by the donors; costs of the implant procedures are borne by the intended parents. If a search organization or an embryo donation program is utilized, these costs are also borne by the intended parents.

Family Formation Law Offices offers cost-effective, flat fee reviews of contracts in embryo donations. Both the donor parents and the recipient parents need to be represented by counsel. We offer a free 15 minute phone consultation to discuss your legal needs in an embryo donation agreement. Call or email us today to arrange your appointment.

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*One embryo donation program, Snowflake, located in Orange County, CA arranges the embryo donations as though they were adoptions. The recipient family must undergo a homestudy with all the rigors of interviews, references, fingerprint and medical clearances with an educational component of raising a child not biologically related. The donating family must receive counseling and fill out complete medical histories on the embryos. If the parties wish ongoing contact agreements, these are worked out with the parties by the agency. Then papers are signed.

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