Tips and Things to Know for Gestational Surrogates

THIS IS ONE OF MY PET PEEVES.

I cannot tell you the number of times I have had a consult with a gestational surrogate who informed me that her prior attorney didn’t review the draft of the GSA with her. For example, one GS told me that she received the draft via email with a “please let me know if you have any questions” comment in the body of the email. That was it! OMG! IMHO, that is legal malpractice. I review the GSA with my clients (whether IP or GS) in detail. Sometimes line by line if I can tell that the person with whom I am speaking is completely lost. I get it, GSA’s (especially those in NY) can be overwhelmingly long agreements and it can be easy to get lost in the legal speak.

A Word to the Wise: Plan/Expect to spend at least one (1) hour reviewing your agreement with your attorney. Read it before your scheduled review time (please try if you can because it really helps), and highlight anything that doesn’t make sense to you, anything you don’t understand, appears incorrect based on your conversations with your agency or your IPs (yes, we attorneys do make mistakes occasionally) etc. I have worked with Gestational Surrogates who could not find time in their workday for their review. To ensure we went over everything, we broke the contract review into smaller blocks of time over a few days so we could get to everything. Not every attorney will be able to do that, and many can and will do reviews with you in the evening after work or maybe even on a weekend, but please make sure you set aside sufficient time to go over ALL your questions and for your attorney to review the GSA with you in some degree of detail.

Your relationship with your attorney (more below on finding the right attorney to represent you) should be a give and take. Your attorney should have time set aside to answer your questions and they should be able to answer your questions; although there may be times where your attorney may need to go back to the agency to check on something for you. This is a collaborative process, and you should have a good working relationship with your attorney. Do not be afraid or intimidated to ask questions. There is no stupid question except the one you do not ask!!!

I know a lot of agencies hand-off Gestational Surrogate’s to a specific attorney and do not give you the option to pick an attorney you like. In New York, this is a violation of the Child Parent Security Act and the Surrogate’s Bill of Rights. In New York you have to pick your own attorney, provided that the attorney is experienced in third-party assisted reproduction law. But guess what, by law throughout the United States, you are entitled to choose your own attorney. Just because someone else is paying your legal fees does not mean you have to accept the lawyer someone tells you to work with. So, let’s say your agency or your IPs give you the name of one person to represent you. Set up an introductory call with that attorney and talk to them before you officially agree to work with them. If, when speaking with that attorney you feel under-valued, rushed, or even intimidated (or you get any negative vibe from them), that attorney may not be the right attorney for you. Carrying someone’s baby is a big deal and there are serious legal issues to be addressed. You want an attorney you feel will go to bat for you when needed, and someone who will explain things to you. If the first attorney you speak with doesn’t feel right (trust your gut), then ask for another name. If you get pushback on using another attorney, I think that is a flag and you should start paying close attention to the process of working with your agency or your IPs. If you need to find the name of someone on your own try going to the Academy of Adoption and Assisted Reproduction Attorney’s (sometimes referred to as the “Quad A”) map, search in your state (make sure you select an ART attorney and not an adoption attorney) and speak to someone else. New York also has a group of attorneys (made up of Quad A attorneys), for those of you who are cycling in New York. But the emphasis here is on speaking with your attorney before agreeing to work with them to make sure you are a good fit. Whether it is your first agreement and surrogacy journey or your fourth, you want and need to have a good working relationship with your legal counsel.

A Word to the Wise: Check to see if your attorney considers their representation of you concluded when you sign the GSA. Some attorneys do not make themselves available to help you with legal issues during your pregnancy. In New York, attorneys representing Gestational Surrogates are required to assist you throughout the surrogacy process (see The New York Surrogate’s Bill of Rights). However, this is not the case across the country and many ART attorneys deem their representation of a Gestational Surrogate concluded when the GSA is signed. If you have a legal issue come up and you need counsel, that can be a problem. Find out ahead of time whether your attorney will continue to be available to you (at the cost of the IP) after you sign your GSA.

Somewhere in your GSA there should be a lengthy list of all of the terms pertaining to your financial arrangement with your IPs. Sometimes these terms are in an exhibit at the back of the GSA, sometimes they are in a section of the contract. REVIEW ALL OF THEM.

A Word to the Wise: Pay special attention to:

Monthly Allowance Provisions. If your agency or your agreement with your IPs provides you with a flat amount per month to cover certain expenses, review what those expenses are with your attorney. Look at any provisions for mileage that might be covered in the monthly allowance (as compared to mileage for long distance appointments), childcare for routine medical appointments, whether prescription or non-prescription medication is covered within the allowance. Understand exactly what is covered and what is NOT covered by that monthly allowance. Every agency has their own policy on Monthly Allowance provisions and oftentimes they are not negotiable; your attorney can help you sort through what to do if there is some kind of issue between what is covered and what your actual expenses might be.

Lost Wages. A lot could be said about gross versus net lost wages and how lost wages are documented. This tip page cannot possibly go into all that detail. But trust me on this, it behooves you to understand what you are getting paid in lost wages, when you are getting paid for lost wages, what documentation you must provide (if any) to receive reimbursement for lost wages, and what to do if you have mandatory paid time off. If you are a nurse, are self-employed, are a teacher, or are a 1099 independent contractor, go over the lost wage provision even more carefully as determining the amount of lost wages and proving that you incurred lost wages might be more difficult for you. Please discuss any tips or commissions you might earn with your attorney. Oftentimes tips comprise the bulk of a GS’s lost wages and need to be included; but that can be tricky for an attorney when drafting language and some agencies have policies excluding tips, commissions and bonuses from lost wage reimbursement. Understand how net lost wages are calculated. If you are getting paid net lost wages try backing out that rate with your attorney so you have a realistic understanding of what you are getting paid. Find out why you are being paid net versus gross lost wages (this may be an agency policy).

Understand When Your Compensation Payments Are Triggered and When They will be Deposited in your Bank Account. Please make sure you discuss with your attorney how and when payments are triggered and when they are released to you. A lot of Gestational Surrogates do not understand that a payment may be triggered when they reach a milestone of pregnancy (for example 10 weeks gestation) but that the payment will not be released and deposited into your bank account until the first of the month following the date that triggered your entitlement to the payment (I know RIGHT???). Other times the payment is triggered on the first day of the tenth gestational week and is due to you within 5 or 7 or 10 or 14 days of that trigger date. If you are going to be depending on your monthly payments during your pregnancy for income, you should know exactly when those payments are getting deposited.

Understand the Medical Processes Involved in Your Journey. Aside from speaking to the IVF Clinic and finding out what is involved in the embryo transfer prep and recovery (like how many monitoring appointments you will attend and the frequency of them), make sure you go over this stuff with your attorney. Although your attorney absolutely cannot provide any medical information or advice, there are practical issues that arise in the context of your GSA. Monitoring appointments might raise issues with your monthly allowance, lost wages, and travel reimbursement provisions. I had one GS client who lived in a remote area and had a two-hour one-way drive to get to her monitoring clinic. Costs incurred in connection with “local monitoring” appointments, including lost wages, was covered by her monthly allowance regardless of how many miles she was going to drive and the fact that she was going to miss significant amounts of time from work (to the point where she feared she might get fired). Go over stuff like that with your attorney! Do you have to travel long-distance to the IVF Clinic for transfer? What gets covered financially if you have to travel long-distance, and are there any contractual provisions that dictate what you do and when you do it related to that travel (what happens if you miss your flight or if there are weather delays)?

A Word to the Wise: If this is your first time being a GS you might not know what to expect from the IVF process. What happens if, after an unsuccessful cycle or a miscarriage you realize that you don’t want to do another transfer and you want to terminate the GSA? How many transfer attempts are you agreeing to undergo in your GSA and can you terminate before you have undergone all of them? Also, have realistic expectations for your specific match with your IPs. While I am certainly not a reproductive endocrinologist, I have enough experience to help my clients understand that embryos made with donor eggs might be more likely to wind up resulting in a pregnancy on the first embryo transfer than embryos made with your intended parents’ gametes (or not . . . there may be other issues at play for their decision to pursue surrogacy and they have great embryo quality). Understanding whether and to what extent you need to have a heart to heart with the IVF Physician about the chances any individual embryo transfer might or might not result in pregnancy – and I am not talking about the clinic’s success rates, I am talking about specific information relevant to your journey – will help you understand whether committing to three embryo transfers is going to really mean you will have to undergo all three embryo transfers. It will also help you prepare mentally for the journey you are embarking on. When an embryo transfer fails, it fails for ALL of you. It has been my experience that many gestational surrogates do not understand how devastated they will feel when the transfer isn’t successful. It is not just your IPs going through this rollercoaster.

Understand Which Contract Provisions Are Negotiable and Which are Not. I touched on this above, some of the financial terms in your agreement (especially when working with an agency) are not negotiable. But many are. If you are not comfortable with how much you are receiving in compensation for something, or what the terms for payment are . . . ASK your attorney. It might be possible for your attorney to go back to the agency or the IPs attorney and explain your position and see if something can be worked out. Sometimes unique and unforeseen facts arise which warrant major renegotiations, other times we are just stuck with what was agreed to before contracts were started. It is always worth a discussion with your attorney IF you feel something is wrong. But please do not expect to be able to renegotiate your base compensation in the middle of contract negotiations because you found out your compensation is on the lower side compared to other Gestational Surrogates you know. I can tell you from experience that will NOT go over well and could result in your IPs walking away from the match. But you might be able to renegotiate when those payments of base compensation get deposited into your bank account. This is a conversation to have with your attorney; some things can and should be negotiated and you do not have to take everything written in your agreement as proverbial gospel. That said, renegotiating contract terms is a very delicate process and you and your attorney need to have a serious conversation about what you might want to change and why. And whether it is worth trying to change it.

Ideally a Gestational Surrogacy Agreement takes about a month to finalize. But it can take much longer. The contract process for independent matches in New York can seemingly take forever. Be patient and be prepared to hurry up and wait. Your attorney should be able to give you a solid timeline based on their case load, the complexity of the contract, scheduling issues the two of you may face, and their knowledge (if any) of working with the other attorney representing the IPs. Oh yeah, please don’t forget that your IPs may have scheduling issues too which may impact how quickly or how long it takes to finish the GSA!