Richard Vaughn is a father to twin boys through surrogacy and egg donation. He’s also founding partner of International Fertility Law Group – one of the world’s leading firms focusing on assisted reproductive technology law. 

We had a very informative conversation – essentially a free 101 from the leading expert to help intended parents get prepared for and protected throughout their surrogacy journey, which you can view here: 

Here are some main takeaways from our Instagram Live for a (very) quick overview of surrogacy law:

First things first

Laws on egg donation and surrogacy vary from state to state. What applies in one state, may not necessarily apply in another.

What to look for when researching surrogacy attorneys

One of the first things to check is where they are licensed – they might be limited in what they can do if, for instance, they’re located in a different state to the surrogate. You should also be looking into their level of experience, who they are affiliated with or if they are a part owner in an agency you’re working with. The latter can still be okay, but if this is the case, see that you’re comfortable with such an arrangement. The important thing is that you make an informed decision.

What is the role of a surrogacy attorney in the surrogacy journey?

At a general level, the surrogacy attorney:

• prepares the surrogacy agreement between the gestational carrier and the intended parents
• goes into court for you to obtain a court order stating that the intended parents are the legal parents
• ensures your name appears on the birth certificate

Experienced surrogacy attorneys also offer the following additional services: 

• guardianship documents 
• estate planning portfolio 
• advanced healthcare directives that need to be signed
• power of attorneys
• drawing up a will

In Richard’s own words, “all intended parents should be thinking of the future”.

Some intended parents also prefer to share the agency agreement with an ART attorney before they sign it. An attorney can also answer any questions and help you address any concerns you may have.

What to include in a surrogacy contract

Despite the work that surrogacy entails, including all the professionals and documents involved, it’s ultimately “a human process, deeply human, very emotional and life-affirming process with real people”. 

Before getting into a contract with your surrogate:

• Ensure that you’ve been properly matched 
• Ensure that the surrogate wants the same relationship as you 
• Both you and the gestational carrier must be on the same page on everything, including on tough issues, such as pregnancy termination in the event of danger to the surrogate’s health or life or in the event of indications of serious genetic disease or significant abnormalities
• Acknowledge risks. There is no way for a surrogate to guarantee what’s going to happen.The surrogate has to acknowledge her own risks, too, and that she’s voluntarily assuming them. 
• Address medical decisions, such as vaccination, especially in this COVID-19 environment. It is the surrogate who gets to make these decisions; the intended parents cannot force the gestational carrier to vaccinate or not vaccinate. Both parties should discuss this prior to the match so there are no disagreements, but ultimately, it’s the surrogate’s decision.

Once contract is signed:

• Parents must meet their agreement obligations – paying compensation and insurance, and covering expenses, including medical expenses after the birth.
• The relationship must be nurtured and based on communication, trust and respect

The surrogacy agreement also addresses the gestational carrier’s conduct during pregnancy, mainly lifestyle restrictions as part of a normal healthy pregnancy. 

Filing the parental order

The law varies from state to state so procedures and timing and the documents needed to confirm someone as a parent also differ. There are two main categories though:

Pre-birth state – the majority of states allow a pre-birth order. Basically, it’s when the attorney obtains a court order signed by a judge during a pregnancy, but this is only effective once the baby is born. Parents become legal parents upon birth.

Post-birth state – in these states, intended parents have to wait until the birth before filing a parental order.

In both cases, you’re presenting to the court an agreed petition, which tells the judge there is no dispute.

Timelines: 

• Regardless of whether it’s a post-birth state or a pre-birth state, it’s important that your attorney gets started early on in the pregnancy to get ready for court.
• In a pre-birth state, attorneys start the process at 14 weeks of pregnancy, and this is a good timeline even for post-birth states. It’s never too early to start collecting the necessary information.
• At around 28 weeks, the attorney talks to the hospital where the birth will occur to start coordinating with them. The hospital is provided with the court order and asked if any additional documentation is needed, so that when the birth does occur, all questions are answered and all documents have been presented. 

Establishing parental rights – LGBTQ+ couples

As the intended parents are the legal parents, in most cases, it is not necessary for the non-genetic parent to do a further adoption. However, there are some exceptions in some states – this is yet another reason why to get a lawyer early on to see which states are more suitable for you. 

International intended parents doing surrogacy in the US

Intended parents who are not US citizens have specific considerations to make. One of the main issues to deal with is to look at your and your partner’s nationality and decide which one you want for your child. Some countries have no position on surrogacy, others are strongly anti-surrogacy. Your attorney will also advise you on how to prepare the birth certificate for the country in question.

Insurance for baby

• For domestic couples in the US –  the baby can be added to your own insurance. 

• For international intended parents –  it’s often the case that the insurance would not cover medical expenses in the US. Options for international newborn policies are somewhat limited so it’s important you research this early on in the process.

New York’s CPSA

The CPSA became law in New York on February 15, 2021 and it legalizes compensated surrogacy for US citizens with a gestational carrier who’s been a New York resident for at least 6 months and a surrogacy attorney licensed in New York. We went into this in more detail during the Instagram Live which you can listen to here. You can also check out our article in collaboration with Richard: Compensated Surrogacy Legal in New York starting on February 15th.

To conclude…

Richard shared that the most common question they get from intended parents is, “What if the gestational carrier changes her mind?”, and from gestational carriers, “Are you sure she’s going to take the baby?” He explains that this question is normal and natural – there are extremely rare cases out there, but these things happen because best practices are ignored and steps skipped. Richard’s advice is – in any surrogacy journey – “Don’t skip steps”.

“Surrogacy is worth everything you go through – all the research, all the stress, all the money, all the time.. It’s absolutely worth it in the end.”

Richard Vaughn, Esq.

If you’re considering becoming a parent using assisted reproductive technology, the team of experienced ART attorneys and paralegals at IFLG can answer all your questions about how to legally protect your family. You can also follow IFLG on Facebook, Instagram, Twitter and YouTube.