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Lessons Learned the Hard Way:
Preventative Tips from a California Attorney
By: Alison A. Sconyers, Attorney at Law
When people ask me what I do for a living, I get mixed reactions when I state that I am an attorney. Some think that's great; others are unabashedly vocal about hating attorneys. A few people simply take the news in stride (or perhaps they are just better at hiding their real reactions). The next question is always, "What kind of law do you practice?" When I reveal that I practice "kid law" (i.e., adoption, surrogacy, and representation of abused children), the reaction is almost overwhelmingly positive. I say almost, because there are some people who immediately get on their soapbox to tell me how surrogacy is wrong and should be outlawed.For the most part, however, the general public seems to agree with me that my particular area of practice is the most interesting and most emotionally rewarding work available to lawyers. I don't deny that I have had my share of heartbreaks, tense moments, and downright fury when things don't go the way I planned. Yet surrogacy remains endlessly fascinating to me. I am constantly amazed at how each surrogacy relationship is unique, presenting its own set of highs, lows, and challenges.
In spite of this unique quality to each surrogacy arrangement, there are certain basic principles that apply across the board. What I want to share with you through this article are some of the things that I have learned over my years in surrogacy practice. Some of these things I learned the hard way, because things went wrong. Sometimes I learned vicariously when a fellow professional had difficulties. My understanding of other principles evolved when something almost went wrong, and I realized that I got lucky this time, but that I better do something differently to avoid trouble in the future. Please use the principles discussed here as a guide when working with your attorney and the other parties in your surrogacy arrangement.
I. BE COMPLETELY HONEST ABOUT YOUR EXPECTATIONS.
I am addressing this issue first, because it really supersedes all other aspects of the relationship. If you don't trust the other party enough to reveal your honest expectations of the relationship, then you shouldn't be entering into a contract together. Do you expect the surrogate to abstain from all alcohol during pregnancy? Do you expect the couple to be present for all doctor's appointments? Do you believe that abortion is appropriate only if the possible abnormalities are such that the child's quality of life would be affected?
Whatever the hot buttons are for you, get them out on the table. There is nothing worse than finding yourself in the middle of a pregnancy and finding out that you think differently on abortion, on bedrest, on cost reimbursement. If you have thought about an issue, then you need to talk about it, as well. Better to discover irreconcilable differences and walk away, rather than find yourself in a nightmare pregnancy where the parties aren't even speaking to one another. Nine months can be a long, long time! Therefore, I encourage parties to use licensed therapists, who are experienced with surrogacy issues, to assist with recognizing and articulating values. Your values are translated into contractual expectations of the other parties.
I also encourage the parties to think about the contract negotiation period as the honeymoon period. Remember when you were engaged, then newly married? You never fought with one another, you thought your spouse walked on water, and you didn't understand how or why people ever got divorced when marriage was so FABULOUS! Then you had your first fight. It was probably over something small, but you each dug in your heels. As the feelings escalated, you began to wonder what happened to the perfect person that you married. You can't believe how insensitive, how selfish, how wrong this person can be! Eventually, the fight is over, and you go on, but you feel so disillusioned. Your spouse is just a human, not the god or goddess that you thought you knew. Of course, as your marriage survives and matures, you lose the sense of disillusionment, and you embrace the wonderful reality of your human spouse, warts and all.
The surrogacy relationship is so similar to marriage in this way. There will be some tense moments, when you think, "I really don't like this person!" It's important during these times to remember that you probably don't like something that the person did, or a particular value that person espouses. Nevertheless, you can still like one another and have a good relationship. Try entering into the surrogacy relationship knowing that the other parties will not always please you, and acknowledging that THAT'S LIFE! You will save yourself a lot of anguish when that first eruption occurs. This attitude will give you the perspective that you need to get through the disagreement, and to get on with the relationship and all the good things it has to offer to you.
II.WORK WITH COMPETENT, ESTABLISHED PROFESSIONALS WHEN NEGOTIATING YOUR AGREEMENT.
At the very least, this means that your contract should be reviewed by an independent attorney who represents you, and another independent attorney to represent the other side. Both sides should undergo psychological and medical testing, and reveal the results to the other side. You should always used licensed medical professionals familiar with the medical and legal standards for surrogacy.
While this may sound like shameless promotion of attorneys, psychologists, and doctors, I can only assure you that the most messed-up surrogacy cases usually did not start with a solid legal contract, or the parties substantially deviated from standard medical or legal surrogacy practices. Usually, the parties ended up spending far more to fix their problems than they would have spent on preventive advice from attorneys, doctors, and therapists.
For instance, I know one surrogate who is being sued for hospital bills. Her couple took the baby home and promptly declared bankruptcy. Her good credit is being ruined because she did not consult legal counsel about having the funds set aside in a trust account and administered by a third party. I know of another couple who is having difficulties with a surrogate abusing the expense account. Their home-made contract is vague, and therefore capable of the unreasonable interpretation that the surrogate is going by, so they feel trapped.
In yet another case, the parties did a "home insemination" with a paper cup and a syringe. Everyone was devastated when the post-birth paternity tests revealed that the surrogate's boyfriend was the father of the child. If the parties had followed standard medical practices, the doctor probably would have discovered the pre-existing pregnancy before the insemination.
I could go on, but you get the picture. None of these people thought that this could happen to them. All of them had the best intentions. Yet each failed to recognize that the surrogacy business has standards in order to protect everyone. For the most part, lawyers and doctors don't just invent these procedures to make money, but rather to avoid known problems.
Once you have solid legal, medical, and psychological advisors, I believe your contract also should include mandatory counseling for all parties. Trying to get someone to voluntarily submit to counseling when that person is already angry at you can just make matters worse. If the agreement is set up to require counseling at certain intervals, or upon the happening of certain events, you remove the issue of blame and make it much less threatening to say, "Let's call the counselor to work through this."
The bottom line is that surrogacy requires a team of professionals who are familiar with the legal, medical, and psychological issues you are going to face. Some people do it on their own, and it works out fine. However, my experience shows that to be the exception rather than the rule.
III. ESTABLISHING PARENTAGE
Each state has its own laws and policies regarding the issue of which person is the actual parent of the child birthed by a surrogate. In this section, I will be referring to California law, which is fairly clear-cut and pro-surrogacy. To the extent that the laws are different in the jurisdiction where the surrogate will give birth, this section may apply to you only in part, or not at all. Please consult an attorney familiar with your local laws regarding the specifics of your situation.
Many people do not understand the fairly intricate legal procedures (translate: substantial time and cost) which are required pre-birth in order to make sure that the biological parents are named as parents on the child's birth certificate. I have had numerous calls and letters from people who were sure that I was trying to fleece them when I explained this. They truly believed that they could just give the hospital a written statement from the IVF doctor, or the surrogate, or themselves, and that would take care of things. Please do not be fooled into thinking that you can avoid the standard legal procedures, whatever they may be for your jurisdiction. In California, these procedures vary depending on whether the surrogate conceived via artificial insemination (AI), or by in vitro fertilization (IVF). I will address each type separately.
During an IVF pregnancy, the Intended Parents file a legal proceeding which the surrogate (and her husband, if married) join in agreement. The court then issues a Judgment which states that the Intended Parents are the legal parents; that neither the surrogate nor her husband have any legal rights or responsibilities; that the hospital personnel must name the Intended Parents on the birth certificate; and that the Intended Parents are allowed to name the child. Since the hospital personnel only have ten days post-birth to prepare the birth certificate, it is wise to start the legal proceeding during the sixth month of pregnancy, to allow sufficient time for the court to process the paperwork.
AI surrogacy is also known as "traditional surrogacy." In this situation, the surrogate is biologically related to the child. She has parental rights over the child which cannot be relinquished or terminated until the child has been born. However, the biological father also has parental rights, and those rights can be established before birth or a very short time thereafter. In any event, the paternity proceedings can always be started during the pregnancy, even if they are not completed until post-birth. While some AI surrogacy parties forego this step to save on expenses, I have seen several cases where a pre-birth parentage proceeding would have saved money and grief in the long run.
Therefore, it is my recommendation that AI surrogacy agreements should always require the parties to cooperate in a pre-birth paternity proceeding, like the standard pre-birth parentage proceeding that is always done for IVF agreements. In the AI case, the Intended Father would file a paternity case, and the surrogate (and her husband, if married), would join in agreement. If there is pre-birth paternity testing (via amnio or other tests) which confirms that the Intended Father is the biological father, then the court will often render a paternity judgment prior to birth. This allows the Intended Father to be listed on the birth certificate and given immediate legal rights vis-a-vis the child, such as insurance coverage and medical decisions.
This pre-birth proceeding can also be invaluable legal protection for the Intended Father. For instance, I know of a case where the AI surrogate not only changed her mind about giving up the baby, but she also deliberately disappeared from sight during the seventh month of pregnancy. In this situation, if a paternity action had been filed and served on her before she disappeared, then the Intended Father would have been granted the assistance of law enforcement to locate her. He would have had the right to insist that he be named on the birth certificate. He would have been entitled to seek an immediate custody order.
Because this father did not file a pre-birth paternity proceeding, he had no such protection. By not filing until after the child was born, he missed out on the first eight weeks of his child's life, until he was able to get a court date and obtain custody rights. Also, it is my belief that a friendly paternity action, commenced as "standard procedure" before things broke down, might have restrained the surrogate from attempting to run away at all, by emphasizing this father's legal rights to parent this child, and his commitment to do so no matter what.
I was also informed by another surrogacy attorney of a case which would have benefited from pre-birth paternity proceedings. The AI surrogate had duly given birth, relinquished custody, and signed a consent to allow the Intended Mother to complete a step-parent adoption of the child. However, the agency in charge of investigating and approving step-parent adoptions would not accept the parties' sworn statements that the Intended Father was the legal and biological father of the child, since the surrogate was married to another man. The last I heard about the case, the agency was insisting that the parties obtain a court order establishing the Intended Father's legal parentage. Thus, the adoption was delayed and the same amount or even more money was spent correcting the situation.
From the stories that I have told you here, the lesson I would have you learn is to fully investigate the requirements of your jurisdiction before you begin negotiating your contract. To the extent that you are allowed to institute pre-birth parentage proceedings, make it a standard part of your contract that all parties must cooperate to get that done (or at least started) during pregnancy. This eliminates any elements of unfriendliness or other bad feelings that such procedures can cause if they are delayed until the point where something has gone wrong. By setting up the protections in advance, this may also make the potentially breaching party reconsider his or her actions before doing something inappropriate or damaging to the relationship.
IV. HEALTH INSURANCE FOR THE IVF CHILD
Obtaining health insurance for the child newly born of a surrogate can be an interesting legal thicket. Again, I am speaking to California law specifically, but there are some things that should be applicable to everyone.
When a child is born to you, or placed for adoption or legal guardianship with you, federal law requires your medical insurance carrier to accept the child with all pre-existing conditions, as long as you complete enrollment forms and begin paying premiums within thirty days after the birth or placement. The issue in surrogacy is, of course, "Whose insurance company is obligated to cover this child?" The answer is, "It depends!"
If the surrogate is biologically related to the child, her insurance company must automatically cover the child, but she is not legally required to do so if her contract does not require that (hint, hint). The same is true of any Intended Parent who has a biological connection to the child (though you need to prove the biological connection via the proceedings discussed in the prior section). What if the surrogate is implanted with an embryo created from donor egg and sperm? My opinion is that if the court has issued a pre-birth judgment establishing that the Intended Parents are the legal parents, then their insurance must cover the child. If all else fails, then any person named as a parent on the birth certificate has the right to have his or her insurance cover the child.
This gets really complicated when your insurance doesn't "transfer" to the locale where the surrogate is going to give birth. For instance, the insurance of many non-American couples does not cover health care services rendered in California. Some U.S. couples have managed-care plans that only cover "emergency" services rendered out of their regular coverage area. What are they going to do with preemie twins, hospitalized for eight weeks, at an estimated cost of $200,000?
One answer is purchasing a hospitalization policy form a company such as AFLAC. This company writes policies all over the world at very reasonable rates, covering all family members, including newborns. These policies will pay up to $11,000 per hospitalized person, for up to fifteen days of hospitalization. This means that if the couple gets in a car accident on the way to the hospital to witness the delivery, and the surrogate delivers premature triplets, the couple could receive up to $55,000 total cash paid to them if each of the fiver were hospitalized for the maximum number of days.
Obviously, this is a drop in the bucket for couples that have premature babies requiring substantial care. That is why I suggest another item to be included as standard in all surrogacy contracts where insurance is or may be a problem. Essentially, the surrogate agrees that upon request by Intended Parents, she will accept legal guardianship of the child for the purpose of obtaining health insurance coverage. The parents agree to cover all legal fees and increased premiums. The guardianship is filed immediately upon learning of the need for medical coverage. The court is asked to back date the order (also known as nunc pro tunc orders), allowing for total coverage from the moment of birth.
I have successfully used guardianship to obtain coverage for the child on the surrogate's policy, and thereby avoid paying massive medical bills, This is completely legal and involves no fraud on the insurance company. Of course, the Intended Parents could just as easily choose someone else with good insurance to be the legal guardian, such as their own parents, their siblings, etc. However, the surrogate is a logical choice, especially if the parents are already paying for her medical insurance policy, anyway.
CONCLUSION
Obviously I didn't cover all aspects of your surrogacy arrangements. However, these areas are the ones, in my experience, which cause the most difficulties for the parties. More than anything, I hope the material in this article has made you stop, think, and pick up the phone to discuss things with your potential surrogacy partners. Time spent thinking, talking, and working with each other and with experienced professionals will always be an investment that yields high returns. Best wishes to all of you.
January 1997
Copyright 1996. The American Surrogacy Center, Inc.(TASC), Marietta, GAThe information contained in the website may not be published, broadcast, rewritten or otherwise distributed without the prior written authority of The American Surrogacy Center, Inc. If you would like to include this information on your website, you may link to the page directly on our site.
Guest commentary and representations by others do not necessarily reflect the opinions of the principals of TASC, and should furthermore be independently verified.
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