Gestational Surrogacy and Carrier Information
Surrogacy law is a growing and evolving area with complex legal issues. If you are considering a surrogacy, you need qualified legal counsel. We can protect your rights, and anticipate and address potential problems by drafting Surrogacy Agreements, Gestational Carrier Agreements, and reviewing Agreements drafted by other attorneys on behalf of a Carrier/Surrogate.
We cannot represent both parties to an Agreement and cannot meet with or advise both Carrier/Surrogate and Intended Parents who will be parties to the same Agreement. We can make the process as seamless as possible by advising you regarding the law and provide other practical advice based on our experience in family law.
In every surrogacy arrangement, each party should have separate legal representation because the Carrier/Surrogate and the Intended Parents have very different perspectives which must be taken into account by the attorney representing each party. Most commonly the attorney for the Intended Parents will prepare the Agreement according to the specific facts of the case while the attorney for the Carrier/Surrogate reviews the Agreement with her and her husband/partner and answers questions regarding the legal and financial process.
What is Surrogacy?
Surrogacy is most commonly a paid legal arrangement in which a woman agrees to become pregnant, by a means of assisted reproductive technologies for the purpose of giving birth to the child of another person or couple (Intended Parents). There are two types of surrogacy. The first is gestational, in which a woman becomes pregnant by means of an embryo transfer, and therefore does not have a genetic link to the child. The embryo is created by in-vitro fertilization, using eggs and sperm from the Intended Parents or donors on their behalf. This is the most common and contemporary form of surrogacy.
A less frequently used method of surrogacy involves the artificial insemination of a woman who contracts to be a traditional surrogate. These are handled similarly to an adoption. Because the surrogate is also a genetic parent, there are additional significant legal and emotional ramifications, and there is more risk attached to this type of surrogacy. While it is appropriate in some circumstances, it should be approached with a great deal of care.
Why Are Surrogacy Agreements and Gestational Carrier Agreements Necessary?
An Agreement is extremely important in the event of any dispute between the Carrier/Surrogate and the Intended Parents regarding the child or children conceived. It demonstrates as clearly as possible what the parties intended regarding the child or children and who is has legal and financial responsibility for the child or children. Additionally, an Agreement should specify each party’s responsibilities, obligations, rights, and understandings in order to minimize misunderstandings. An Agreement sets forth the financial responsibilities of Intended Parents details how the financial obligations will be fulfilled. An Agreement establishes that Intended Parents are legally and financially responsible for the child regardless of his/her health. An Agreement typically also specifies that all parties to the Agreement are to be medically screened in order to protect the health of the Carrier/Surrogate and the child or children.
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