Guest Post by Chrissy Hanisco, Esq.
For almost 40 years gestational surrogacy has provided a medically safe way for individuals who cannot carry a pregnancy to have a baby. However, the process is also complex, expensive, and full of potential pitfalls. Hopeful parents have an overwhelming amount of information to navigate, which makes it challenging to even know where to begin. Fortunately, there are many excellent resources available, and a good starting place is reviewing the offerings of a non-profit educational organization such as Resolve New England (RNE).
The first thing to understand is that there are different types of surrogacy. The first distinction is how pregnancy is achieved. In gestational surrogacy, pregnancy is medically achieved without using the surrogate’s own eggs, but those of the intended parent or other donor. This type of surrogate typically is known as a gestational carrier or gestational surrogate.
In traditional or genetic surrogacy, pregnancy is achieved without sexual intercourse but using the surrogate’s own egg(s). Since her own eggs are used, she is legally the birth parent when the child is born and in most states an adoption would be required. The laws regarding both gestational and genetic surrogacy vary from state to state and in some states, surrogacy is even illegal. It is critical to know the law where the surrogate resides before deciding whether to embark on either type of surrogacy.
Two additional distinctions in surrogacy are altruistic versus commercial surrogacy, as well as agency versus private surrogacy. Both of these relate to costs and greatly impact the total cost to the intended parent(s). An altruistic surrogacy versus commercial surrogacy addresses whether the surrogate is paid for their time, effort, discomfort and risk. A surrogate who agrees to an altruistic surrogate is not compensated and most often is also a private surrogate, typically a family member or friend. This can save thousands of dollars, but is not without cost. The surrogate is still reimbursed for any pregnancy-related expenses, legal representation throughout the process, and may also require health insurance, compensation for lost wages, child care, or other related expenses.
Commercial surrogacy refers to a surrogate who is paid for their time, effort, discomfort, and risk. With “base compensation,” a salary is paid to the surrogate over the course of the pregnancy. There is some geographic variation, however the average base tends to be between $35,000 to $50,000. In addition, there are often contingent fees that are paid to compensate for additional time, risk, and/or recovery. Some examples of contingency fees include the procedure for the transfer of the embryo to the surrogate’s uterus, an invasive procedure during the pregnancy, or a Cesarean delivery.
For those who do not have a family member or friend available to assist them, the decision to use an agency or privately match with a surrogate needs to be considered. An agency will assist with finding a surrogate and managing the process from match through delivery, versus privately matching.
The majority of businesses providing matching services and support will only work with gestational surrogates, not genetic surrogates. The agency’s fee often is broken into two or more payments and may be non-refundable. In addition to comparing fees between agencies, it’s important to know what that fee covers. Some considerations to think about when comparing agencies include how they screen potential surrogates (medical records review, background checks, mental health evaluations, medical evaluation, etc.), as well as how they match surrogates and intended parents. In addition to agencies that assist with matching and support, there are also consulting agencies that will help you find an agency and surrogate by leveraging their network of agencies. This can be particularly helpful when a person may be looking for certain attributes in a gestational surrogate that are harder to find, and thus may result in matching quicker.
Private matches (often referred to as “going indy” for independent) can be cost effective but require much more effort as the intended parent(s) will need to do their own search and vetting of candidates, as well as manage the entire process once a match has been made. Some agencies do offer match support at a reduced fee for private matches.
There are also important legal considerations to consider when choosing a surrogate as the law in the state where the surrogate will deliver the baby is typically the law that will govern obtaining legal parentage. These laws can vary depending on the marital status of the intended parent(s) and on the intended parent’s genetic connection to the baby. When matching with a surrogate, it is important to consult with an attorney to know what will be necessary to become the legal parent(s) of the child(ren). Retaining an attorney early in the process can help in understanding the law around parentage, reviewing and comparing agency agreements, and ultimately, once matched with the surrogate, negotiating and drafting the surrogacy agreement between the intended parent(s) and the surrogate. Once the surrogate is pregnant, an attorney will also handle the paperwork necessary for the intended parent(s) to become the legal parent(s). It is critical that both parties have independent representation throughout the process, with the intended parent(s) covering the legal fees of the surrogate, and that both attorneys have experience in assisted reproductive technology law.
Having a child through surrogacy can be a very rewarding experience, and although there are never guarantees, for many it is the only way to have a child after battling infertility, medical complications, or other family building challenges.
While this blog is only the beginning of things to consider, we invite you to join the RNE community on Wednesday Sept. 29th at 7:30p for an open conversation about family building through gestational surrogacy.
This free, virtual event is open to all at any stage of the gestational surrogacy process from decision-making to pre/post-cycle to parenting. Facilitated by a parent through gestational surrogacy and an attorney who specializes in surrogacy and other family building law, this conversation offers an opportunity for those on this particular path to parenthood to reflect, receive support, and share expertise and insights.
RNE has many resources that can assist in those building their family through surrogacy. Please visit our Professional Directory for assistance with locating attorneys, mental health professionals, surrogacy agencies and other family building professionals.
SAVE THE DATE: RNE’s 28th Annual Family Building Conference will be held on Saturday, November 13, and will be fully virtual. More information will be available soon!
Chrissy Hanisco is the Vice Chair of the Board of Resolve New England. She first joined RNE in 2011, following her infertility diagnosis, and regularly attended her local peer support group. Chrissy credits RNE with getting her through the dark times and is committed to supporting others on their journeys. Her personal journey also led her to leave her decade plus career as a public defender, and for the past six years she has primarily practiced adoption and assisted reproductive technology law. She also serves on the New Hampshire Bar Association’s Board of Governors, as Governor at Large, Vice President of Capital Region Mothers of Multiples and leads a peer support group for RNE. Chrissy is a 1993 graduate of Saint Anselm College in Manchester, NH and earned her law degree in 2000 from New York Law School in New York City, NY.