What to Expect When You're in the Legal Stage: Surrogate's Perspective
The legal stage in a surrogacy arrangement is a big milestone and many times the last step in being qualified as a gestational carrier. Usually, it happens after the lengthy medical and psychological clearances have been issued by the IVF clinic and mental health evaluation. While everyone has been to the doctor and understands what mental health professionals do, many people never hire an attorney in their lifetimes. In this guide, we will explore exactly what you should expect during the legal stage from a surrogate’s perspective. Not sure why you need a lawyer? View this FAQ.
Your agency may provide you with a list of attorneys to consider, or you may be left to choose an attorney on your own. There are many things to consider when choosing an attorney, and you can read our article on what you should consider. Once you have selected your attorney and notified your agency or the intended parents if you do not have one:
1. The representation agreement. Once you select your attorney, you will be contacted to sign their representation agreement. This agreement is not to be confused with the surrogacy agreement itself, it will be a short agreement explaining you will be represented by your attorney with reviewing the surrogacy agreement, and possibly the parentage action in the future. If you have a partner who will be on the contract, or are married, they will also be represented by the same attorney. Please provide their email address so both of you can sign the representation agreement electronically. Note that your attorneys fees will be paid for by another party, the intended parents, so much of what the agreement does is explain this arrangement and discuss waiving the conflict of interest if you accept this payment.
2. Gestational Surrogacy Agreement. You will now wait for your attorney to receive the gestational surrogacy agreement (GSA) which is typically drafted by the intended parent’s attorney who must also review it with their clients before sending it to us. Thus, even after medical clearance and signing up with your attorney, you may have to wait a few weeks before you have the GSA. If we represent you, we will send you the agreement along with a calendar link to choose a date and time to schedule a review appointment. When scheduling the review, keep in mind the review may take an hour or more, so be prepared. Your spouse or partner will also need to be available at the same time.
3. Before and During the Review Appointment. Be sure to read the GSA before your review appointment--your attorney will expect you to do so, and you can prepare your questions ahead of time. During the review, we will explain the law in your state and go over the contract paragraph by paragraph (though not word for word) and ensure that the terms match the match sheet and compensation package. During the review, we will make a redline of the changes that we recommend.
4. Approving the First Redline. The initial review isn’t over yet. Usually within a day, the attorney will send you a redline based on changes and requests made during the review. If you have no more questions or changes, respond to your attorney that you approve the redline, and then it will be sent to the intended parent’s attorney. If you do not respond, progress on the contract will be delayed.
5. Signing the Gestational Surrogacy Agreement. After the first redline, there may be a second or additional redlines if the intended parents’ attorney does not accept all the changes. Your attorney will send you any additional redlines and you can discuss if you approve the new changes. Once the final GSA has been approved by all parties, in most cases, you will need to sign with a notary. Your attorney will be able to advise if you are able to use an online web notary or whether you should print out and go to a location that has a notary public. Follow the instructions in the email you are provided. You should scan the entire signed agreement, and if you are not able to, take photographs of the signature and notary pages and send them to your attorney. Sometimes, the attorneys will request that the original GSA be mailed to the intended parents attorney. If you do not receive instructions, keep the original safe in case it is needed.
6. Legal Clearance. After you provide proof you signed the GSA with your attorney, they will send a legal clearance letter to the intended parent’s attorney. This letter will state that you are aware of your rights and have reviewed the contract with an attorney. But this legal clearance is still not the end. It is not until the intended parent’s attorney has both their client’s signed surrogacy agreement and yours that they send the IVF clinic a legal clearance letter stating details about moving forward with the embryo transfer. At this point, you are officially “legally cleared” and can begin your medication in preparation of the embryo transfer.
7. Parentage Order. Your attorney may inform you that they will talk with you again for the parentage order stage. During your pregnancy, before the parentage action, you will typically receive an intake form which you will complete. You can review our blog for what the parentage action entails in different states.
If you are a surrogate who is at the legal stage, you should have an experienced attorney to make sure you understand the contract, that the terms are satisfactory, and your rights are protected. At Tsong Law Group, our experience consists of thousands of successful legal clearances and parental judgments. We are licensed attorneys in California, New York, Illinois, Washington, Arizona, and Oklahoma with recognition as AAAA and ACAL Fellows.
Contact us today to begin your surrogacy journey with confidence on a solid legal footing.
