The legal aspects of surrogacy loom large. For our team at Gifted Journeys, legal analysis begins when we are reviewing a gestational carrier application: does the carrier reside and will she deliver in a surrogacy friendly state? We take no risks with our surrogacy cases as far as the legality of the arrangement and the enforceability of the gestational carrier agreement. We work with some of the finest reproductive law attorneys in the country and, when working with international intended parents, we rely on our network of legal professionals in those countries from which our client come.
Our intended parents and the carriers working with Gifted Journeys will likely first speak with a reproductive law attorney after a match has been confirmed and in anticipation of signing-off on the gestational carrier agreement. But we are speaking to attorneys regularly. Our staff interacts with our legal colleagues at conferences, at meetings and in more informal settings – always focused on being certain that we are making referrals to the best legal minds in our field. Sometimes, intended parents may come to the process with an attorney with whom they have worked before, as long as that attorney is licensed appropriately and is, in fact, skilled and experienced in assisted family building, we are pleased to welcome that attorney to our process. Sometimes, an experienced gestational carrier will want to work with the same attorney she worked with when last signing a gestational carrier agreement, again, as long as the credentials satisfy our requirements, we encourage the carrier to work with someone she feels comfortable with.
Retainers (or agreements signed with a lawyer for anticipated legal services) will be signed following the match and following full medical approval that the surrogacy will commence. The actual work will begin when the clinic is asking for legal clearance, this is when the intended parents, their attorney, the gestational carrier (and her spouse if she is married) and her attorney will roll-up their sleeves and get to drafting and negotiating the contract between the parents and the surrogate. Each of the attorneys will advise their clients on standard provisions in a gestational carrier agreement, will ask many questions about the discretionary matters, will work closely with the agency to understand the terms of the match and the agency’s policies to be sure that the gestational carrier agreement accurately reflects representations made to the parents and to the surrogate during the matching process. The gestational carrier may come to the process with a check-list of provisions she wants to be sure are addressed in the agreement, her attorney will represent and advocate for her as will the parents’ attorney to be sure that the final document is both comprehensive and balanced. The attorneys will oversee the execution of the agreement and will provide to the clinic a letter indicating that the gestational carrier agreement has been signed and that clearance has been issued.
From time-to-time the attorneys may be called on during the early months of the surrogacy if clarification is needed about certain terms of the agreement. While this does not happen frequently, we are confident that the lawyers to whom we make referrals have a long-term commitment to their clients. Typically, the next time the attorney is engaged is when we are addressing parentage orders, pre or post-birth depending on the state law (and related process) relied upon in the gestational carrier agreement. Birth certificates and other parentage matters are addressed, at this time, usually well into an established pregnancy. Often, the attorney will also assist in being certain that the hospital or the birthing center understands that a surrogacy delivery is imminent and that appropriate arrangements are in-place to accommodate a non-traditional birth.
The role of the lawyer in the surrogacy process is an important one, as is the rapport not only our clients and carries have with their respective legal counsel but also the relationships we, at Gifted Journeys, have with our legal colleagues. The risks are significant in assisted family building, our clients and the gestational carriers with which we work have our commitment to minimizing those risks by being certain that only the most highly regarded attorneys are working with us as we journey through.