If you are embarking on a surrogacy journey, there are a few key questions you should be asking your ART Attorney while drafting contracts. There are several major milestones that occur in a surrogacy journey. Surrogates tend to look forward to meaningful moments such as heartbeat confirmation and seeing their Intended Parents holding their baby for the first time after delivery. Among these milestones includes obtaining legal clearance with completed contracts, which may come with mixed emotions.
During the process of examining this extremely detailed 60+ page document, it’s only natural to feel intimidated and overwhelmed by the sheer amount of information.
In a surrogacy journey there is always an Assisted Reproductive Technology Attorney assigned to help the surrogate with reviewing her contracts. This legal professional’s role is to protect the surrogate’s interest and ensure she is fairly represented and covered in the event of a dispute with her Intended Parents during her journey.
This brief guide is intended to be used as an overview of common topics that tend to be complex during a surrogacy journey. These five points are a good starting point to open up the conversation between a surrogate and her attorney.
Is the surrogate covered for lost wages if she cannot work either during pregnancy or postpartum?
If a surrogate is unable to work her normal hours during her pregnancy, the Intended Parents are required to pay her lost wages. The surrogate should ensure that her contract accurately reflects the correct hourly compensation rate, and the correct number of hours typically worked in a week.
A surrogate is also entitled to a paid maternity leave after she delivers the baby. A vaginal delivery entitles her to 6 weeks paid maternity leave, while for a c-section she gets 8 weeks paid maternity leave. Should she return to work before the entire 6 or 8 weeks, her maternity leave will end upon her return to work.To receive the lost wages, the Gestational Carrier is expected to be home resting and recovering.
In some cases the surrogate must apply for paid state maternity leave, which is usually only partial compensation. The parents will be responsible to pay her the remaining amount to match her full wages.
How is the surrogate’s compensation paid out throughout the pregnancy? What happens if she delivers early?
It is important that a surrogate has a strong understanding of when and how base compensation is paid out. Typically base compensation payments start the first of the month following heartbeat confirmation. The payment schedule may slightly differ depending on the legal party drafting the contracts, but full transparency and clarity is key. If the surrogate does not deliver a full-term baby, the attorney should clearly explain how she will be compensated in this event.
In the event that a surrogate needs additional legal counseling, is there a budget in escrow put aside to cover her own legal expenses?
As an extra layer of protection for the surrogate, she can request a special budget be put aside in escrow for additional legal assistance expenses. Should there be a dispute between the surrogate and the Intended Parents, she can use this budget to pay for additional legal assistance. At the end of the journey, if this additional budget is never used, it will be returned to the parents when the escrow account is closed.
Does a surrogate need to pay any costs out of pocket during the course of her surrogacy journey?
A surrogate should never be expected to pay for any of the expenses in a journey. If she should have to pay upfront for a cost, the escrow company will reimburse her after she’s provided receipts and proof of payment. The surrogate’s contract should thoroughly explain all the expenses the Intended Parents are responsible for. If there’s specialized maternity services that the surrogate is requesting, then they need to be raised and discussed before contracts are finalized.
Are there any travel restrictions during a surrogate’s journey?
Yes, there’s almost always travel restrictions put in place for the surrogate during a journey, and these will be fully outlined in the legal contracts. If the surrogate has travel plans that will overlap with her journey, she needs to disclose all the details to both her Intended Parents and her attorney. Once everyone has agreed to the terms, the travel plans will be included in the legal contracts.
As a rule of thumb, it is best for surrogates to complete all their travel plans before they start a journey. Once she has entered into legal contracts, international travel is not an option until after delivery. A surrogate may even be limited to travel domestically, particularly once she’s pregnant. Traveling to a state where surrogacy is illegal is typically prohibited, especially past 24 gestational weeks. Because there’s a chance that at 24 weeks there’s a viable fetus, the surrogate must stay within states where the Intended Parent’s parental rights are recognized by the local government. Towards the end of the pregnancy, as the due date approaches, the surrogate will most likely be restricted to stay within 50 miles of the delivery hospital. All of the exact details will be outlined in the legal contracts, and should be discussed between the surrogate and her attorney.
These are just a few of the many topics to be discussed between a surrogate and her attorney. The majority of the time, the Intended Parent’s attorney will be the ones drafting both the Gestational Carrier Agreement (and parentage documents later on). After the initial drafting, the surrogate will review with her attorney. During the reviewing of the contracts, she should feel comfortable voicing any concerns and feel that she is fully covered in an event that may transpire during the course of a journey.
Thanks to our friends at US Surrogacy LLC for their insight on how to work with your attorney during your surrogacy contract.