We asked Lesa Slaughter, a former Intended parent and Fertility Lawyer about the steps to Surrogacy Success in America and she shared some tips with us.
As a former intended parent and now mother of twins born through surrogacy allow me to tell you that selecting a surrogate is awkward, emotional and at times, overwhelming. The anxiety I felt was similar to a blind date – and then some. The good news is that if you become armed with a little understanding of the process, what to look for, ask, and expect, the process can become manageable, and your journey into parenthood through surrogacy and the relationship you have with your surrogate may provide you with one of the most unique experiences and relationships you will ever have.
Step 1. How Do I find My Surrogate?
Generally, there are two ways in which an intended parent or intended parents find surrogates. The first, and more common way is through a surrogate agency. The second method is finding the surrogate yourself, also known as independent arrangement.
While there are several differences between these two types of matches, the primary one is that with an agency many items are pre- negotiated and orchestrated for you, from the surrogate’s background check to medical exams just to name a few. An agency’s ideal goal is to leave you with little to worry about other than the pending birth. Another advantage with an agency is that they typically step in to help resolve or smooth over misunderstandings or unmet expectations, between you and your surrogate, a process that can be awkward for either party to do directly with the other.
The agency route isn’t inexpensive, so make sure you have an understanding of what you are paying for. Any reputable agency will have clear and definitive responses to just about any question you may have regarding the topics of finances, schedules, legalities, medical care and insurance matters as they relate to surrogacy and what their agency does/does not provide. Some questions to ask when looking for an agency are: Do you do background checks and home visits on all your surrogates? How many surrogacies through birth does the agency have on average, per year? How many Intended Parents are currently waiting to be matched? Where do you find your surrogates? What happens if our surrogate doesn’t become pregnant, what is the cost of re-matching us to a new surrogate?
If going independent is your preferred method, start by speaking with family and friends. Sometimes, family members are willing to be surrogates for their relatives. This has its benefits and challenges, but may help you feel better about the surrogacy process if you are working with someone you know and trust. Something to keep in mind when considering candidates is finding one who has already given birth to at least one child of her own, and is actively engaged in raising that child. Many agencies have this qualification to avoid unexpected physical and emotional reactions.
If a friend or family member isn’t an option, finding a match through other methods is typically free or extremely inexpensive. Surrogacy classifieds, found on surrogacy message boards or even newspapers, are often free or inexpensive and reproductive centers are also able to help match surrogates and families for a price that is much less than an agency fee.
Remember, an independent arrangement typically means that both parties have quite a bit more work to do on their own and have to resolve any disputes or misunderstandings without the help of a surrogacy experienced third party. If you decide to try the independent route think through and discuss all your wants and expectations regarding her conduct during the pregnancy, from communication frequency, diet, exercise, her support network, and on how each will handle disagreements, like pre-natal care or conduct during pregnancy be resolved, just to name a few.
Step 2. What do I ask a potential Surrogate?
First, take the time to interview as many potential candidates as possible. A good match depends on a range and variety of factors, from plain old chemistry to communications styles. Communicating openly with the person who will carry your baby is an absolute must for a successful experience. There should be few, if any surprises along the way. Some surrogates want to be very involved with their intended parents or parent – others do not. If the surrogate is experienced surrogate, ask what she liked least and best about working with her last intended parents? Discuss openly and frankly your desires and feelings regarding multiples, and/or possible termination of the pregnancy or reduction. Talk how involved you will be – will you be going with her to pre-natal visits or if distance doesn’t make that possible, what would you like? What kind of pre-natal tests will you want her to undergo? Will she be calling you every week? Will she meet your family, or you hers? How will her husband or partner be involved? How does she plan on involving her children with the process? Ask about why she became a surrogate and what she likes best and least about the experience.
Lastly, don’t be afraid to ask for what you would like. For me, it was having our surrogate living as organically and eating as nutritionally as possible during pregnancy. That meant asking our surrogate if she was willing to postpone any home improvement projects until after the birth, modifying her diet and providing her with the book, The Complete Organic Pregnancy by Donal and Zissu, which she embraced.
Step 3. You found Your Surrogate…. Now What?
The first step is to have your fertility doctor review your surrogate’s medical records to make sure she is physically healthy and capable of carrying and delivering your baby. If your arrangement is independent, you and the surrogate will need to do a large part of this leg work whereas an agency will coordinate to bulk of this process for you. After the surrogate’s medical records are reviewed, assuming the surrogate is qualified for surrogacy by the physician, he or she will then issue something referred to as “medical clearance.”
Next, request a mental health evaluation from a qualified therapist
knowledgeable and experienced in working with surrogates. You want to make sure your surrogate will be able to give the baby to you after birth without any trauma or regrets. After speaking with the surrogate, the therapist will then issue a report on his or her findings and if positive, he or she will issue what is referred to as “psychological clearance.”
Once your surrogate has both the medical and psychological clearance it’s time to hire an attorney to prepare your surrogacy contract. An obvious point but sometimes overlooked one is never, ever send any payments to a surrogate before signing a surrogacy agreement.
The attorney you select should be experienced and actively practicing third party reproductive law, accessible and sensitive to your needs, knowledgeable on the laws that apply to your facts and particular issues. An example is international intended parents who may have immigration issues to navigate when bringing the child back to their home country. Also key is an attorney understands their job goes beyond just the contract and includes protecting and facilitating your relationship with the surrogate. This is not the time to hire a friend or relative simply because they are an attorney or will give you a deal. Surrogacy involves matters of health, life, death, and substantial sums of money – retaining counsel experienced in surrogacy can’t be stressed enough.
Both you and the surrogate should have separate, independent counsel: one attorney to represent the intended parents and one to represent the surrogate and her family. It is important that each party have an attorney who is looking out for that party’s interests, independently of the other parties, and who will explain the contract or the consequences of the court parentage proceedings, to that party from his or her unique perspective.
Once you have selected your attorney, he or she now has two main legal tasks. First, is drawing up a written agreement between you, as the intended parent or parents and surrogate. Typically, the attorney for the intended parent or parents drafts the contract, which should include among other items, a detailed description of the parties’ obligations, the costs, conduct, rights, risks, liabilities and limitations including obligations of the parties under the worst case scenarios.
You and your attorney will then review the contract and once approved by you, it is then sent to the attorney for the surrogate and her family. She and her counsel then review the agreement and provide any feedback or requested changes to your attorney. Once the parties have agreed on all the terms, the contract is finalized and then signed. The attorney for the intended parents, once he or she receives the signatures of each party, then issues a letter called “legal clearance” to the fertility specialist stating that the contract has been agreed upon and signed, allowing the fertility specialist to begin scheduling and preparing for the embryo transfer.
The second legal task occurs after the surrogate pregnancy is achieved, and starts at around 15 to 20 weeks of gestation. That is to establish the intended parents as the legal parents of any child or children born as a result of the surrogacy, typically done by filing legal documents and obtaining a judgment of maternity and paternity from the court.
If you follow these steps, you will have successfully navigated your way to start the process of being a parent or parents through gestational surrogacy. Regarding the sleepless night ahead, diapers, bottles and more…. for that you will blissfully be on your own.