What surrogates and parents can talk through before the lawyer visit

By Monique Shebbeare

Most intended parents and surrogates talk through a lot of issues before they make the decision to embark on the surrogacy process together, and long before either goes to a lawyer about drawing up the Surrogacy Agreement.

In some ways, a Surrogacy Agreement is a communication tool. Putting everyone’s intentions in black and white, in a legal document, clarifies what is important to both the intended parents and surrogates and highlights any areas that still need to be discussed. The agreement also deals with several important “what if” scenarios.

Here are some things intended parents and their surrogates can talk about before going to see their lawyers:

  • INSURANCE – I know, it may seem odd to start with insurance, but insurance takes time to apply for, and if the surrogate is pregnant before the insurance is in place then the pregnancy itself is normally excluded, which defeats the purpose of insurance in a surrogacy. Consider getting this process underway months before any embryo transfers will be done. Long term disability, critical illness and/or long term care insurance, and life insurance can protect the financial security of the surrogate and her family if there are any significant health problems during the pregnancy or birth. It will hopefully never be called upon, but it gives everyone peace of mind.
  • PARENTAGE – Usually, the intending parent(s) are the only legal parents, but in BC the surrogate can also be a parent if they all agree in writing before the child is conceived.
  • EXPENSES – What expenses of the surrogate will the intended parents cover? I n Canada, it is illegal to pay a surrogate for being a surrogate, but intended parents can reimburse her expenses. The intended parents cover all clinic costs directly, and reimburse the surrogate for any out-of-pocket expenses she incurs that she would not have had but for the surrogacy. These are usually listed in the Surrogacy Agreement, and sometimes the agreement puts a cap on the amount. Health Canada may also have restrictions and requirements at the time the Surrogacy Agreement is made (check out http://www.hc-sc.gc.ca/dhp-mps/brgtherap/legislation/reprod/surrogacy-substitution-eng.php) . Some typical expenses include:
    • Prescriptions and all other medical costs
    • Transportation, meals, and accommodation for appointments and the birth
    • Cost of a private hospital room
    • Fees for a doula or other caregivers
    • Maternity clothing
    • Loss of income for appointments, or if a doctor says the surrogate requires bedrest
    • Extra childcare costs the surrogate has for her own children because of the surrogacy
    • Note that costs like rent or her children’s usual childcare, that the surrogate has anyway, are not reimbursable
  • SOURCE OF EMBRYOS or GAMETES – Will the intending parent(s) own sperm and/or eggs (ova) be used to create the embryos? Will an egg donor, sperm donor or embryo donor be involved? Will the surrogate’s own eggs be used (traditional surrogacy)? If any known donors are involved, including a surrogate donating her own eggs, it is critical to also have a written donor agreement that is clear about the use of the donated gametes.
  • EMBRYO TRANSFER – Will single embryo transfer be used, or will more than one embryo be transferred?
  • PRE-NATAL GENETIC SCREENING – Will any genetic testing be done for conditions such as Down’s syndrome, trisomy 18 and other conditions? If the screen shows a strong likelihood of a condition, what will be done? Some people don’t test, as they know they would not want to terminate a pregnancy for this reason. Others know they want the screening and that they would request a termination in certain situations. It is really important that surrogates and intended parents be on the same page about this issue. Ultimately, as it is the surrogate’s body, she makes the final decision. The Surrogacy Agreement needs to deal with the possibility that the intended parents would request a termination, and the surrogate may refuse.
  • MULTIPLES – If there are multiples, either as a result of transfer of more than one embryo or division of an embryo, will there be a selective reduction (termination)? Or only a termination if a serious health risk to the surrogate develops?
  • HEALTHY PREGNANCY – What do you want to say about pregnancy behavior and prenatal care? Can the surrogate choose whether to have a midwife, obstetrician or family physician for prenatal care and the birth? Many agreement say that the surrogate will eat a follow her care provider’s advice, eat a healthy diet, take only medications recommended by her care provider, not smoke tobacco or marijuana, not drink alcohol, etc. It can also deal with food restrictions, not dieting etc. With the current Zika scare, many agreements also say that the surrogate and her spouse won’t travel to countries where there is a Zika outbreak.
  • BIRTH – Where will the birth take place, and can the intended parents be present? Often, the surrogate is given the choice about where. Sometimes intended parents want to ensure it will be at a hospital rather than a home birth.
  • BREASTFEEDING and BREAST MILK – Many agreements make it clear the baby will be bottle fed from birth by the intended parents. In some cases, the surrogate may be willing to provide breast milk for a period of time. Some hospitals now have breast milk banks.
  • FUTURE DISCLOSURE TO THE CHILD, CONTACT AND INFORMATION SHARING – How do the intended parents and surrogate see information sharing happen with the child? Do they plan to tell the child from the beginning, or will they leave this up to the intended parents to decide in the future? Do they plan to have ongoing contact with the surrogate (she may be a close friend or family member where contact is inherent in the relationship – even if the intended parents are ultimately the decision-makers about the type and amount of contact)? Do the intended parents and surrogate plan to share information with each other in future? It is difficult to be very specific, as the future cannot be predicted, but it helps to know whether your current intentions are on the same page
  • PRIVACY and INFORMATION SHARING WITH THE WORLD – What are the intended parents and the surrogate’s plans for privacy and information sharing with their families, friends, communities and on social media? This can really differ. Some people plan to have a high level of privacy; some plan to be open about the experience of surrogacy but private about identities; and some plan to be completely open about everything including identities even on social media.