Ask An Expert: Atty. Eliseo Arebalos Answers Legal Questions on Surrogacy

Growing Generation Interview Atty. Eliseo Arebalos

Atty. Eliseo Arebalos, Chief Legal Analyst and the Chief Operating Officer of International Reproductive Law Group, answers some of the most asked legal questions in surrogacy. He also works as a member of the Policy Advisory Committee of Family Equality Council, driving legislative change in the state and federal level on various family-building related topics which includes surrogacy and egg donation.

During this conversation, our legal expert answers the following questions.

What legal questions should I ask when vetting a surrogacy agency?

The agency’s depth and experience are factors to consider, as is where the agency is located.  Some states require the agency to be licensed in their home state.  If that is the case, you may want to ask if the agency is licensed with the appropriate state government agency, compliant with the relevant state’s laws, and whether any complaints were filed. Additionally, you may want to ask whether the other professionals involved in your surrogacy journey (e.g., IVF clinic and law firm) are independent third parties.

Can a surrogate decide to keep a baby?

The answer is generally no; however, it’s important for your legal counsel to confirm the surrogate you will potentially be paired with is a legally viable match given the particulars of your journey.  Your counsel should also be able to call out any legal risks or oddities.

What is a surrogate contract? 

The surrogate contract seeks to memorialize the terms previously agreed to between you and the surrogate. Some of these terms will include the number of embryos to be transferred, vaccine requirements, reduction/abortion decisions, compensation, the law of the state that will govern the surrogate contract, etc.

What laws should one watch out for when planning for surrogacy?

There are a number of factors to consider – marital status, whether you are a same-sex couple or a heterosexual couple, citizenships that you may hold that you would like to pass on to your child, where the IVF physician is located, the state (and county in some cases) where the surrogate is located, and genetic connections.  This is an individualized process, and the legal component is just as individualized.

What are some legal considerations before starting a family through surrogacy?

Surrogacy statutes and case law generally address traditional family structures (i.e., a man and woman using their own genetics).  The suggested approach is that you consult with your legal counsel at the beginning of your surrogacy journey so that you understand how the particulars of your case may impact the states that are viable for you from a legal perspective.

How do I protect my parental rights and have my name placed on the birth certificate?

The suggested approach is that you consult with your legal counsel regarding a potential surrogate match so that you understand how the particulars of your case may impact the states that are viable for you from a legal perspective.

What laws protect families built on surrogacy?

Approximately twenty states have statutes governing surrogacy arrangements, including determination of parentage. Twenty-six states have case law holding that surrogacy contracts are enforceable (i.e., determining parentage is based on the discretion of the court where the surrogate delivers). 

Does the surrogacy agency provide legal resources or can intended parents choose their own legal services? What are some things to look for when choosing your own legal service for surrogacy?

It is more common for legal resources to be provided by a third party.  It is quite common for agencies to suggest intended parents work with a particular law firm, as that firm is familiar with the surrogacy agency’s program. That said, intended parents are free to choose their own legal service provider.  Should intended parents choose another legal service provider, that legal service provider should be well-versed in this area of law.

How are future contacts with egg donors or surrogates negotiated?

From a donor perspective, the contract will generally specify what, if any, future contact will be had.  The contact may continue to be via a third-party intermediary, such as Donor Sibling Registry, or it may be direct contact.  From a surrogate perspective, the contract will generally contemplate that you and the surrogate will have direct contact until such time as one side or the other decides otherwise.  In any event, the surrogate will generally not be allowed to have direct contact with the child without your consent.

What are some legal loopholes intended parents, especially same sex parents, have to watch out for?

Your marital status could be impactful, as could be where you reside, where the embryo transfer will take place, if there is potential to move to another state, and the genetic connections (if any) exist. The surrogacy journey will be customized to the specifics of your case. There is no such thing as a one-size-fits-all all approach in surrogacy.  This is your journey, and it will be customized to meet all your needs.

Are there questions you get asked that we have not discussed?

The most frequent question is whether a surrogate wants to keep the baby, and the answer is no; surrogates have their own families and lives.  Surrogates want to assist you in creating your family, not to add to their own. Your surrogacy journey will be based on trust and the more you trust the process, surrogate, and the agency, the easier your journey will be.