SURROGACY AND A.R.T.:
CREATING FAMILIES

SURROGACY

There are many pathways to becoming a parent. For some, surrogacy is an option to consider. In a surrogacy arrangement, a person or couple makes an agreement with a woman to become pregnant and carry a baby to term for the purpose of creating a family for that person or couple. The woman who carries the pregnancy is called the Surrogate. The person who makes the agreement with the Surrogate is called the Intended Parent, or, if a couple, the Intended Parents.

Types of Surrogacy

There are two types of surrogacy - traditional surrogacy in which the woman who agrees to be a surrogate is inseminated with sperm from an intended male parent or a sperm donor (the IUI procedure), and thus, any child who is conceived is genetically related to the surrogate.  This method is generally not recommended as it can lead to disputes regarding parentage and a child could end up being raised by the intended parents and the surrogate.

The other type of surrogacy is gestational surrogacy in which a woman agrees to be a surrogate via an IVF procedure with embryo created with another woman’s eggs.  Therefore, the surrogate is not genetically related to any child she might carry.

There are usually two legal steps in the surrogacy process. First, an agreement between all parties must be carefully drafted. This agreement will include the Surrogate, her spouse if married, the Intended Parents, and possibly others, if there are additional known genetic donors. Secondly, prior to birth, a court order can be obtained declaring that the Intended Parents are the genetic, and therefore, legal parents of the child to be born, and their names should be on the birth certificate. This is called a “pre-birth order”.

With so many options in the area of assisted reproduction, it is essential that all parties be represented by an attorney with the requisite knowledge and experience. Our firm works with both Surrogates and Intended Parents to review and guide them through the complexities of this process. We also represent Intended Parents in any necessary court proceedings and coordinate with hospitals to ensure that all goes well during delivery and that the Intended Parents are able to take their baby from the hospital.

For more information on surrogacy, or any other assisted reproduction issues, call NicholsonPham and schedule a consultation.

Call: (919) 883-4900

I am a married lesbian.  My wife is willing to carry a child for us and we would like to use my eggs so that I am genetically connected to our child.  Is that medically possible in NC and if so, what are the legal implications?

Yes, this is called “ovum-sharing” and it can be medically done in NC.  There are, however, many legal issues. First, make sure your fertility clinic has forms for your particular situation.  Do not sign any forms stating you are just an egg donor. And although you both can be listed on your child’s birth certificate, there are still some unresolved issues as to whether one or both of you is a legal parent.  We at NicholsonPham recommend that you also do a stepparent adoption to insure that there is no question that both of you should be considered legal parents.

STEPPARENT ADOPTIONS

I am unable to conceive or get pregnant and my husband and I are considering using a surrogate to carry a child for us.  What are some of the issues we should think about and address in a surrogacy agreement?

There are many difficult and complicated issues that should be in every surrogacy agreement.  There should be provisions setting forth all the parties’ intentions as to who shall be the parents, what medical procedures will be used, how many times and over what period of time, what medical and mental health testing shall be done, and restrictions on what the surrogate can and can’t do during a pregnancy.  The harder issues are reaching agreements on abortion circumstances, selective reduction, and what happens if there is a dispute.

Can I use a surrogate in another state or even another country?

Yes, it is possible to contract with a surrogate outside of North Carolina, but only after a thorough investigation has been done to determine the laws of the other state or country.  This often requires working with an attorney in the other state or country. Laws regarding ART and parentage vary greatly and if not done properly, you could end up without parental rights or the ability to bring your child back home.  As a member of the national Academy of Adoption and Assisted Reproduction Attorneys, Sharon Thompson of our firm, can use the many resources of this prestigious organization and its network of national and international attorneys who are experts in ART law, to assist our clients with interstate and national surrogacy cases.