Part 2 – 10 Things You Must Know To Ensure a Successful Pregnancy With A Gestational Surrogate

Did you miss Part 1?

4. THE GESTATIONAL SURROGATE IS IN AGREEMENT WITH YOU ABOUT THE AMOUNT OF CONTACT YOU WILL SHARE DURING THE PREGNANCY. Do lay your expectations out so you and your surrogate can come to agreement. The surrogacies which have gone sideways most often do so because of unmet expectations. Will you go to every doctor appointment or only the landmark appointments? Will you communicate by visits, by phone, by email or by third persons? Will visits be planned or drop in? How often do you want to be in contact? Is the surrogate wanting lots of contact or little? Would she prefer emails to telephone calls? Is there a certain time of day that contact is easier, i.e. after dinner?

5. THE GESTATIONAL SURROGATE IS IN AGREEMENT WITH YOU ABOUT THE TYPE OF CONTACT YOU WILL SHARE DURING THE PREGNANCY. One surrogacy I worked on came to crisis when the surrogate said she couldn’t stand being interrogated about what she had eaten each day. The intended mother wanted to be a part of the process and was asking the questions to “try on” the pregnancy. The intended mother was not able to see how her questions could be considered controlling and/or intrusive until the Surrogate told her that she had whiskey and donuts for breakfast. After gasping for breath, ultimately she was able to relax and trust that the surrogate would nourish herself appropriately. It’s important to remember that the surrogate is a responsible adult who may make different decisions than the intended parents, but if the contract is adhered to the life style choices are the surrogates’ decisions. Do build in a safety net, so, if a question or request by either party feels intrusive, the other party may have a middle man to contact.

6. THE GESTATIONAL SURROGATE IS IN AGREEMENT WITH YOU ABOUT THE ASPECTS OF ABORTION AND OR SELECTIVE REDUCTION. You need to discuss if either abortion or selective reduction will be utilized and under what conditions. It is also very important to note that under Roe v. Wade, a U.S. Supreme Court Decision, no one can make a pregnant woman get an abortion. So, even if this is in the contract, the surrogate can be held in breach of contract, but you will not be able to legally compel her to act. Therefore BE SURE TO FIND SOMEONE WHO SHARES YOUR VIEWS. I strongly recommend not working with anyone who doesn’t agree with you from the very beginning, because experience shows that even if someone changes their mind to accommodate you, they may well revert back to their originally held positions.

Tomorrow: the conclusion. In the meantime, you can visit our website to learn more about becoming a gestational surrogate or using one to build your family.

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Part 1 – 10 Things You Must Know To Ensure a Successful Pregnancy With A Gestational Surrogate

On a rainy day, I sometimes rifle through our in-house archives for some timeless pieces on family formation. So starting today, Family Formation Law is bringing you a series of pieces on growing your family.

1. THE GESTATIONAL SURROGATE REALLY CARES ABOUT CHILDREN AND ENJOYS BEING PREGNANT. The motivation of the gestational surrogate makes a significant difference in her attitude about the pregnancy, and hence the prenatal environment for the child. For example, one study has shown that women who are stressed or depressed during the pregnancy tend to birth children who are more colicky as infants and introverted throughout life. As to the risk of exposing a child to unhealthy substances, as a carrier indicated, “my children have opened her heart so much that I can’t image doing anything which could potentially harm or abuse any child.”

2. THE GESTATIONAL SURROGATE’S SIGNIFICANT OTHER IS IN AGREEMENT WITH THE SURROGACY PROCESS. Nothing sabotages a surrogacy faster than a non-supportive significant other. Supportive is ideal; neutral is satisfactory. However, if the significant other is opposed to the surrogacy, I strongly suggest you do not go forward. For this reason, we mandate that the gestational surrogate and her significant other both be screened by a psychologist.

3. THE GESTATIONAL SURROGATE UNDERSTANDS THAT SOME PREGNANCIES NEED MEDICATIONS IN INJECTION FORM. Many of the potential surrogates we interview don’t know about the extra medical interventions necessary in an assisted reproduction pregnancy. Make certain that your carrier understands what is involved prior to investing heart and money. There are a great many web sites (e.g.www.ASRM.org) which will provide excellent initial information. Only when there is comprehension of what is involved should you continue.

Want to know more? Parts 2 and 3 will be up next week! In the meantime, you can visit our website to learn more about becoming a gestational surrogate or using one to build your family. Don’t forget we offer a free consultation to discuss your needs. Have a great weekend!

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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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California Assembly Member Introduce Bill to Regulate Surrogacy Business

On February 19, 2010, Assembly Member Bradford introduced a bill into the California legislature designed to regulate the practice of so called “surrogacy practitioners,” AB 2426. You can track its status here.

Surrogacy practitioners, as defined by the bill, are persons or organizations that engage in either (1) advertising for the purpose of soliciting parties to an assisted reproduction agreement or acting as an intermediary between the parties to an assisted reproduction agreement; or (2) charging a fee or other valuable consideration for services rendered relating to an assisted reproduction arrangement.

We’ve already covered how to choose an assisted reproduction program in some detail on this blog. One of the problems we’ve identified in this field is a lack of regulation. Unfortunately, several surrogacy agencies have closed their doors in recent months, and in so doing, took the money intended parents had placed with them to pay medical bills, the surrogate’s monthly expenses and her compensation. These parents were left with no recourse, since these agencies are not licensed or otherwise regulated by the state. Now, there are a few surrogacy programs run by attorneys, and we strongly recommend that families considering surrogacy work with an attorney owned and operated program, because the attorney has a license on the line, and you, the consumer, have recourse through the State Bar if the attorney commits malpractice.

The other part of the bill regulates how a non-attorney surrogacy practitioner handles client funds. The legislation would require the practitioner to deposit the client funds into either an independent bonded escrow depository, or a trust account maintained by an attorney. It further requires that client funds can only be withdrawn only by agreement between the surrogacy practitioner and the intended legal parent identified in the assisted reproduction arrangement.

This bill has only just been introduced into the legislature, and its going to take some time to work its way through the legislature. It will likely undergo some refinements between now and when its signed into law, whenever that may be. However, Family Formation Law Offices is pleased that the legislature is aware of the problems out there, and at least considering legislation. We will keep you informed of any updates!

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The Risks of Using a Surrogate’s Personal Health Insurance In Lieu of a Surrogate Specific Maternity Policy

In order to lessen the costs of a surrogacy, many Intended Parents seek to work with a surrogate who has her own health insurance. Some surrogacy agencies are presenting this as a viable means of cost control. The idea is that the surrogate’s policy provides maternity coverage, and a pregnancy is a pregnancy, regardless of how or why it came about. Right? NO! NO! NO! WRONG! WRONG! WRONG!

Major medical insurance companies have taken the position that surrogacy is a profit making or third party liability activity. In this event, the insurance companies are not obligated to pay any claims arising out of this activity. Even if claims are not initially denied, the insurance company can still seek to recover medical expenses paid on the surrogate’s behalf from the surrogate’s compensation. The insurer may proceed against the surrogate for two to four years after the contract is filled.

And, even if the policy does not contain a specific statement excluding paid surrogacy, the insurance company may still find a way to deny claims submitted as part of the surrogacy. Sometimes they claim its fraud in the inducement, (a legal term of art) based on misrepresentation in the application process. SO BEWARE!

You may choose a surrogate with an employer provided policy that doesn’t exclude paid surrogacy, but her employer may change policies to one that does exclude paid surrogacy, or she could lose her job. You also don’t want to use government funded health programs such as Medi-Cal or AIM, because to do so may be considered fraud. A surrogate can be banned from receiving public assistance in the future, and can be forced to pay all of the claims herself.

For the surrogate, the risk is obvious. The insurance policy is in her name, and she is contractually obligated to abide by its terms. If the insurer pursues a claim against the surrogate for breach of contract, she could end up owing far more than the compensation she received, and indeed, could wind up with her credit destroyed or in bankruptcy.

Again you might be saying, how likely is it that the insurer will pursue recovery from the surrogate two or three years down the road? The risk is too great!. Should this happen, you, as the Intended Parent, could then be sued by your surrogate. Your surrogate contract typically identifies the Intended Parents as parties who will make up the difference between bills and insurance coverage. In this case, the Intended Parents would be responsible for 100% of the medical bills.

The bottom line is while there is a substantial initial expense associated with purchasing a surrogate maternity policy, the cost to you is relatively small when compared to the huge financial risk you are taking by choosing to rely on a surrogate’s personal health insurance policy. You may save money upfront, but there is a considerable chance that you will be asked to cover the costs long after the surrogacy arrangement is complete and there will likely be damages, penalties and attorney fees involved at that point.

At Family Formation Law Offices we keep abreast of the latest developments in this area, and we are constantly looking for ways to keep costs down, without exposing our Intended Parents or our Surrogates to unnecessary risk. In our opinion, the financial security of your family is too important for you to expose yourselves to the risk of not carrying a surrogate maternity policy.

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Things to Look For in an Assisted Reproduction Program, Part 3

Over the last two days, we’ve covered several tips and hints for you, the Intended Parent, to use when selecting a program for creating your family. Today, the final installment of this series.

5. Fee Agreements: Review and understand the fee agreements. Who is the client of the program? What duty or service is the agency going to provide, to whom and when? This should be clearly spelled out in your initial fee agreement. Money issues (see below) should be spelled out. Are refund provisions clearly spelled out?

6. Money Issues: Are the funds you give the agency for the fees and the Gestational Carrier’s compensation insured? How and by whom? Are there measurable time frames for when duties will be performed, with payments made as services are rendered? What assurances do you have that there will be money to repay you if there is a refund due? What assurances do you have that the money will be available to pay the Gestational Carrier? Does the program place funds in an escrow/trust account for the Gestational Carrier? Who is administrating this escrow account? Is the program amenable to having an attorney or escrow agency disburse funds with clear escrow instructions signed by both you and the agency? What happens to this money if there is a disagreement as to whether funds should be released?

7. Accessibility: Does the program return phone calls or e-mails, and, if so, when? Look to your own experiences, as well as that of the referrals. When your program coordinator is away from the office, is another knowledgeable coordinator on hand to answer your specific questions and concerns? Should you have an emergency, how do you reach a program administrator after hours?

8. Personalities: Are the personnel of the agency pleasant people who help you to feel at ease? Your relationship may well extend over a year’s time, before, during and after the pregnancy. It should be clear that the program will provide you with competent, thoughtful and caring service, and that the personnel are committed to working diligently on your behalf. If you feel uneasy with the personnel of this program, it may be your intuition suggesting you go elsewhere.

Conclusion: You, the Intended Parents, are going to spend a considerable sum of money as you embark on a gestational surrogacy. Consider the amount of time you invest in researching a car or home before you purchase it – don’t you owe it to yourselves to spend an equally significant amount of time researching the best program to create your family?

Please do not hesitate to call or email us if you have questions or comments!

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Things to Look For in an Assisted Reproduction Program, Part 2

This is a continuation of yesterday’s blog on how to find a reputable surrogacy agency. Today’s tip is entirely devoted checking out the agency’s competence, professionalism and expertise

4. Competence, Professionalism and Expertise: Find out who the principals are. Is the program director experienced, educated, knowledgeable and competent? What is the program/program director’s familiarity with assisted reproduction, from both a people base and a legal base? Do they have a license on the line or any investment in clean dealings? Does the program/program director have anything to lose if they breach their fee agreement or provide less than adequate services? Are they looking out for your best interest? How have they addressed the major risk issues such as insurance?(Next week we will discuss the insurance risk issues).

In the field of surrogacy and assisted reproduction, most of the agencies are, in fact, unlicensed and unregulated. There are no regulations, educational requirements, or bonds required prior to someone opening a surrogacy agency. For this reason we urge you to use consumer savvy. We recognize that your investment is in heart, soul and money; before you invest, you as the consumer owe it to yourself to consider what expertise the agency really offers and what recourse you will have if something goes wrong.

Family Formation Law Offices is attorney owned and operated. We carry malpractice insurance, and we are licensed by the State Bar of California. We stay abreast of changes, problems, and issues in the field. We take continued education courses and in fact we have often been presenters and expert witnesses. We provide our clients with attorney client protections and honor our fiduciary duty to them. And if you compare our complete program costs with the services of other programs (including hiring outside attorneys who provide your legal work), you will find our prices more than comparable.

Family Formation Law Offices is AV rated. What you ask, is AV rated? Martindale Hubbell is the premier attorney ranking service. You can learn more at Martindale Hubbell’s website. In a nutshell, Martindale-Hubbell Peer Review Ratings reflect a combination of achieving a Very High General Ethical Standards rating and a Legal Ability numerical rating. An AV® certification mark is a significant rating accomplishment – a testament to the fact that a lawyer’s peers rank him or her at the highest level of professional excellence.

So avoid the stress, the heartache and high legal bills and/or the scramble to put things together yourself. Don’t repeat the mistakes of that couple from Michigan featured in the New York Times over the weekend. Do-it-yourself or non-attorney operations can cause extreme heartache. Don’t take that chance!

Check back tomorrow for the conclusion of our series of tips on what to look for when choosing your assisted reproduction program.

As always, questions or comments are welcome!

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Things to Look for in an Assisted Reproduction Program, Part 1

The assisted reproduction field is still relatively new and largely unregulated. Over the past several weeks, news has filtered out about surrogacy agencies not returning calls, closing their doors, and absconding with clients’ money. Clients are left with little or no recourse. And unfortunately, some of these clients already have surrogates who are pregnant and are expecting payment.

What’s to be done? Litigation is costly, in terms of money (court costs and attorney fees), time and heart. And assuming you prevail, the defendant may be judgment proof and have no funds to reimburse you. In this field, like so many others, an ounce of prevention is worth a pound of cure. So do homework and do “due diligence” first.

This rest of this week we will cover different ways you, as a consumer and intended parent, can protect yourself and your dreams. Don’t trust just anyone to help you create your family! You want to ensure yourselves the best possible chances of success.

Here are some hints as to how you can check out and compare surrogate programs.

1. Physical Plant: Is there a real brick and mortar office or just a post office box or e-mail address? Check the USPS.gov site to verify that the address is given is authentic. It is important to find a program which will still be in business or which at least can be physically found if there is a difficulty. Ask if you can come meet in person. Beware of those companies which only list an email address or post office box or say they never meet with clients.

2. Longevity: How long has this agency or company been in business? How many assisted reproduction matters has the program worked with? Will they give you references? What professionals have they worked with? What Fertility Centers? Do call the referrals, including professionals and fertility centers, and listen to what they have to say.

3. Program Warnings: Check with the local Better Business Bureau to see if there are complaints against the program. While having no complaints is not indicative of either a good or bad program, complaints filed do give you some information. Check with Surrogate Mothers Online to see if there are warnings posted about the organization or any of its members from other surrogates. Additionally, ask if the program or program director has ever been sued. If yes, look at they type of suit. Does it involve fraud or ethics? (Do another internet search for court filings.) You can use www.Pacer.org to see if the principals have ever filed for bankruptcy. And you can Google the program and director and see what you can find.

Check back tomorrow for more tips on what to look for when choosing your assisted reproduction program.

As always, questions or comments are welcome!

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