Writer: Candace O’Brien, Attorney at Law

During my years of representing intended parents and surrogates, one issue I have occasionally seen, particularly in independent match situations and sometimes in agency match situations, is when Intended Parents and Surrogates realize after attorneys have been hired and the contract drafted, they disagree on fundamental issues. For example, intended parents and their surrogate discover that they don’t agree on termination of pregnancy issues. It is important to note that by the time lawyers are hired, there have been many costs incurred for screening to include medical and psychological screening, and perhaps travel costs and reimbursements for lost wages and childcare. These costs can add up to thousands of dollars. Attorney fees are thousands, so this is not the time to find out that there are fundamental disagreements between intended parents and surrogates.

The following is a list that intended parents and surrogates should review with each other during the initial phases of matching. If intended parents are working with an agency, these issues should have been addressed by the agency before introductions. If intended parents and surrogates are matching independently, this becomes particularly critical.

  • Does the surrogate live in a state that allows her to act as a surrogate?
  • Compensation to include base compensation; monthly non- accountable fee; start of medications fee; transfer fee; invasive procedures fees; c-section fee; selective reduction fee; loss of reproductive organs.
  • Reimbursements to include lost wages, extraordinary childcare expenses for surrogacy related appointments and doctor ordered bed rest; health insurance;
  • Under what circumstances would the surrogate not want to terminate a pregnancy or selectively reduce or will she leave all such decisions up to the intended parents? This is a very important discussion. If a surrogate feels strongly that she could not terminate her pregnancy, this could be a strong indication that even if she agrees, if she is asked to do it, she may not be able to comply;
  • Does the surrogate have appropriate health insurance coverage that does not exclude the surrogate’s pregnancy if she is a surrogate? If not, insurance options are limited either by open enrollment under the Affordable Care Act which is tenuous or by costs of about $27,000 for surrogacy-specific insurance; 

There may be other issues that are particular to the situation and each person, and these should be discussed early on. There is almost always some negotiation and back and forth during contracting, but there should not be any big surprises.

About Candace O’Brien, Attorney at Law

Candace O’Brien attended Michigan State University and Thomas M. Cooley Law School in Lansing Michigan and has been a member of the Illinois Bar since 1992. Candace is passionate about assisting those on their journey to parenthood regardless of race, religion, sexual orientation or marital status. She has been helping form families for over 20 years in the fields of international adoption and surrogacy.

Assisted reproductive technology, including surrogacy and egg donation, offer those in search of becoming parents a real path forward, whether as a treatment option for infertility or simply an option that offers the best solutions for that particular individual or couple.

Candace brings to the table her significant background, experience, passion, and knowledge to help ensure a successful and smooth journey to parenthood. Candace has helped hundreds of couples and individuals in their journey to parenthood.

The Law Office of Candace O’Brien