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FAQ #1: Should I have an anonymous donation or an open donation?
With advances in and prevalence of DNA testing, facial recognition, and AI, anonymity of the parties is not something that can ever be guaranteed in the future.
You may want to consider the interest that any child conceived from the egg donation may have in future contact with the donor.
There could be a compromise between open and closed donation, such as using the Donor Sibling Registry or exchanging anonymous email addresses.
FAQ #2: What egg donors are paid for?
→ Main Compensation
→ Injectable Fee
→ Travel Expenses
→ Other Expenses
FAQ #3: Can Intended Parents write off surrogacy expenses as medical expenses on their taxes?
The IRS ruled that expenses involving egg donation, IVF procedures, and gestational surrogacy incurred by third parties are not eligible for medical expenses.
Only procedures on the taxpayer's body were viewed as deductible medical expenses.
FAQ #4: As an intended parent, what is the limit on lost wages that I have to pay for my surrogate? (Part 1)
Lost wages are paid for a period of time where the surrogate is unable to work during her pregnancy or after delivery.
During the pregnancy there is usually no cap on the amount of lost wages. After delivery there is a cap on the number of weeks.
In most cases,
→ 4-6 weeks post delivery for vaginal delivery
→ 6-8 weeks for c-section
FAQ #4: What are some ways to limit my surrogate’s lost wages? (Part 2)
In some surrogacy contracts, lost wages are limited to net wages (wage after taxes, unemployment and disability deductions) as opposed the gross wages.
Less often, intended parents negotiate a cap on lost wages.
In states where there is disability insurance coverage, the surrogate will be required to apply for disability insurance and her disability payments will reduce her lost wages.
Tip: If lost wages are expected to be large, consider applying for a short-term disability policy well in advance of the journey. A short-term disability policy may require being in effect 10 months or more before pregnancy is covered.
FAQ #5: Can the father of my child be taken off the birth certificate if he agrees not to be a parent?
Public policy favors that children have two parents in their lives. So one parent, even if they have nothing to dow with the child, cannot voluntary lose his parentage status. The mother may have full physical or legal custody, but the child could still stand to inherit or gain social security benefits from a completely absent father.
One way to remove the father is through adoption, where one person is willing to adopt the child and take the place of the father while the other parent remains on the birth certificate.
However, with the costs of the home study procedure, this process can be expensive.
Another way would be to do a parentage action, which would likely require a DNA test for one father to replace another
FAQ #6: When can a surrogacy agreement be terminated?
Most surrogacy contracts will terminate after a year or three embryos transfers and there is no pregnancy.
It depends on the contract but usually the parties may terminate for any reason so long as the surrogate is not pregnant.
The contract can also be terminated if the surrogate is no longer medically cleared.
FAQ #7: In what situations can California law be used in a surrogacy case?
The parties are free to use California law as a matter of choice of law in a contract.
California courts have jurisdiction to determine legal parentage in surrogacy cases if either the intended parents or the surrogate resides in California.
It is also possible to file a parentage action in a county for reasons such as place of embryo transfer, place of birth, and where the contracts are executed.
Not all states accept a surrogacy parentage order from another state. So consult with a knowledgeable ART attorney about what choice of law is best for your situation.
FAQ #8: Does it matter whether I use donor gametes in my surrogacy journey?
In some states like Washington and California, it doesn’t matter. In other states like Illinois you need to have a genetic connection to be recognized as a parent.
FAQ #9: Why is psychological counseling a benefit in a surrogacy agreement?
About 1/7 new mothers, including surrogates, experience postpartum depression. Psychological counseling can be used after birth to help treat postpartum depression.
Counseling and surrogate support groups can also help a surrogate process her feelings during the pregnancy.
Keeping stress low is important for a health pregnancy so counseling and support benefits the intended parents as well.
FAQ #10: How do I afford a surrogacy/egg donation journey?
This is not really a legal question but it is a common question.
→ There are limited number of grants
→ Some people come up with a savings plan
→ Some look for loan (commonly a home equity loan)
→ Legal insurance can also help cover attorney fees
We will be working adding Seedcoach as a free benefit to our ART clients if they need help budgeting.
FAQ #11: Why is an egg donor’s compensation in an egg donation a flat fee and not based on number or quality of eggs retrieved?
The egg donor’s compensation is specifically to compensate her for pain, suffering, and her inconvenience for being a donor.
Since many states prohibit the selling of organs, tissue, or body parts, the donor cannot be compensated based on the number of eggs or quality of eggs retrieved.
FAQ #12: Does a surrogate’s spouse have to be in the surrogacy agreement?
In some states like Illinois, New York, and Washington, a surrogate’s spouse is required by law to a party to the surrogacy agreement.
In other states, the surrogate’s spouse should be a party to the agreement because there may be legal presumptions that a spouse is a parent of a child born in the marriage.
In these states, the surrogate’s spouse should know about the surrogacy arrangement and consent to the arrangement.
Even if the surrogate is getting divorced or has separated for a long time from their spouse, the spouse should know about the surrogacy agreement and consent to give up their rights as a presumed parent.
The parentage of the child is absolutely important, so make sure the surrogate’s spouse consents to the surrogacy arrangement!
FAQ #13: Can the surrogate be on public benefits?
No. The surrogate should not be on public assistance. There are three reasons:
1. Outside of New York, the surrogate cannot use state or federal subsidized health insurance for the surrogacy when the intended parent is able to pay for her maternity care.
2. The surrogate may also become income ineligible for public benefits because of her surrogacy. If she continues to collect benefits when she is not eligible, then this may constitute fraud and all parties could be in trouble.
3. The surrogate should be financially stable, and that means not needing the compensation from surrogacy to cover living expenses. A court may not approve a parentage judgment if the surrogate appears under financial duress and needy.
FAQ #14: Can I adopt my niece or nephew or cousin from another country?
Probably not, if the child doesn’t have a green card.
Even if you can, in most cases, you cannot adopt a child and give them a green card through domestic adoption.
You have to go through certain steps in immigration before you can adopt the child.
FAQ #15: When do I need a lawyer in my surrogacy journey?
For gestational carriers, you will need an independent lawyer before you sign a surrogacy agreement. You will also speak to your lawyer to review any parentage paperwork.
For intended parents, your lawyer will usually be needed for drafting the surrogacy agreement. Some intended parents hire a lawyer earlier to review their agreement with an agency or in independent matches for advice on a surrogate match.
If you’re an intended parent, seeking us out early will let you take advantage of Seedcoach’s financial coaching.
FAQ #16: What’s the maximum number of egg donations a donor can do?
According to the American Society for Reproductive Medicine (ASRM), women may only donate up to six times. This limitation is per egg donor in her lifetime, and not per clinic.
While egg retrieval procedures are usually safe, ASRM considers the possibility of unknown increased risk and consanguinity (to prevent intermarrying of donor conceived children from the same donor).
FAQ #17: What’s the difference between gross lost wages and net lost wages and why do some surrogacy contracts pay the surrogate one or the other?
Most surrogacy contracts have the intended parents responsible for lost wages when the surrogate is on bed rest or unable to work.
The surrogacy contract is supposed to make the surrogate whole, so some intended parents pay the surrogate her net lost wages which is a take home pay after federal and state tax withholdings are taken out. This is replacement of what she would have received.
Some surrogates get their gross lost wages, which means her hourly rate without any deduction for taxes. In these cases, the reasoning is the surrogate will get taxed on her income.
Surrogates should be careful with this term. Be sure to hire an attorney who will discuss each term with you.
FAQ #18: Why is surrogate compensation higher in California than in other states?
The biggest reason is the demand for surrogates in California exceeds the supply. Intended parents in California first seek out California surrogates. Intended parents in Asia also seek out California surrogates because of its reputation and its international airports.
There are other reasons California may be attractive to intended parents: (1) Well-established law that doesn’t restrict surrogacy situations; (2) Paid pregnancy disability leave for surrogates reduces lost wages; (3) Many intended parents' clinics are in CA; and (4) the courts and Vital Records that are experienced with handling any surrogacy situation.
FAQ #19: What happens if the intended parents die during the surrogacy agreement?
It will depend on the contract between the parties.
Usually if the surrogate is not pregnant, the agreement will terminate.
If the surrogate is pregnant, the agreement does not terminate. If the escrow account is properly funded, the surrogate can continue to be compensated and the estate of the intended parent will replace the intended parent.
The intended parent should name a person in their testamentary documents to become the parent or guardian of the child if they pass away. The surrogacy agreement can also name this person but it may not be recognized as a testamentary document.
FAQ #20: What are the steps that can be taken to preserve the privacy of the parties to a surrogacy agreement?
1. The contract should prohibit the parties from sharing confidential information they learned from the arrangement such as medical information.
2. It should also prohibit the parties from revealing the identity of the other party or information which could lead to their identity (such as sharing photos).
3. It should also protect the identity of the child.
4. Any court action including the pre-birth order should be kept confidential and litigation will be sealed and protected by a gag order.
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