In Part One, we followed a series of legal disputes surrounding the gestational carrier McKenna West and Baby Rumi. As we follow the cases, from parentage proceedings in California to the lawsuit West filed in Alaska to challenge the California proceeding, to the emergency proceeding concerning medical care in Texas, and ultimately to West’s application to the U.S. Supreme Court in September 2026, we see how extreme complications can arise from a surrogacy arrangement. While the McKenna West cases offer a rare example of a surrogacy journey that went wrong under multiple factors, for intended parents and surrogates considering a surrogacy arrangement, it touches on a more common question: When entering a surrogacy agreement, how can parties prepare for a meaningful discussion about potential abortion language and understand their options if circumstances change? Finally, is the fear that the surrogate will take the baby and try to raise it as her own realistic? 1. Before the Agreement: Are the Parties Really on the Same Page? The McKenna West case began with a contingency that the parties had already addressed in their agreement: what would happen if the fetus were diagnosed with an abnormality and the intended parents requested an abortion. The surrogacy agreement between West and intended parents Gilkar and Ahmed provides that the gestational carrier shall terminate the pregnancy when the designated physician determines that there is a fetal abnormality and the intended parents request a termination. In April 2026, an ultrasound at approximately 20 weeks revealed that the fetus West was carrying had hypoplastic left heart syndrome (HLHS), a serious congenital heart condition. The intended parents requested that West terminate the pregnancy, pursuant to the surrogacy agreement. West ultimately refused. If we review the surrogacy agreement between West and the intended parents Gilkar and Ahmed, it does not occur to us that West would be blindsided when the intended parents requested that she go through an abortion. Yet, West ultimately decided to not abort, and their disagreement became the starting point for the legal disputes that followed. A typical surrogacy journey offers several opportunities to surface this kind of gap before a pregnancy begins. The match between West and Gilkar and Ahmed was facilitated by a long-established agency. In a typical agency process, a prospective carrier completes a questionnaire at sign-up indicating her preferences regarding termination, so the agency can find suitable matches. A carrier who does not wish to terminate a pregnancy for any abnormality could indicate this on her questionnaire. If the agency accepts “no term” surrogates, as many do, it would match her with intended parents who also would not terminate a pregnancy for any reason other than a threat to the surrogate’s life. There would be another opportunity to discuss preferences at the match stage, where the carrier and intended parents typically meet online to ask each other questions, and the topic of abortion is frequently discussed at this stage. Some agencies also arrange joint counseling sessions with psychotherapists, during which termination preferences may also be discussed. At the legal stage, all the states that have laws permitting surrogacy require the carrier and the intended parents to be represented by separate, independent attorneys before signing the agreement (See, e.g., California Family Code § 7962(b)). The carrier’s attorney reviews the surrogacy agreement with her, explains the terms, and gives her opportunities to negotiate them. In our experience, whether we represent the carrier or the intended parents, it is not unusual for a carrier to negotiate changes to the termination or selective reduction provision at this stage. We do not know exactly what was discussed between the parties in the McKenna West case, but the outcome seems to suggest that something may still be missing in this standardized process from matching to drafting. Signing the same surrogacy agreement does not always mean that the parties have a shared understanding of what terminology means and what actions are to be taken in some of the most difficult scenarios. Gestational carriers and intended parents may be able to answer quickly to questions such as “would you agree to terminate for a fetal abnormality,” but the answer may become less certain when the circumstances are explored in greater detail. Some gestational carriers may be comfortable with termination as long as intended parents request it, while many others may want to decline termination in certain scenarios, such as when the abnormality is a cosmetic abnormality, a correctable birth defect, or a condition where a life can be led, such as Down syndrome. Gestational age may also be a factor that affects some gestational carriers’ willingness for termination. These conversations are necessary before the parties sign. The conversation with the attorneys should also cover the processes, such as what diagnoses are required before a determination can be made, and whether the carrier is entitled to a second opinion. In the event that the gestational carrier’s state of residency does not permit abortion beyond a certain gestational week, is the gestational carrier willing to travel, and who is arranging and paying for such travel? It is also important to note that while gestational carriers can promise to travel to fulfill intended parents' wishes, this may not always be enforceable and needs to be acknowledged beforehand. The same care should be given to selective reduction. Agreement on whether to terminate a pregnancy does not necessarily answer whether the parties would agree to reduce the number of fetuses in a multiple pregnancy, or under what circumstances. In states where abortion is criminalized, the contract may not provide for an abortion outside of the state’s law, and the attorneys will advise accordingly. These conversations can be uncomfortable, particularly when parties are eager to move forward, but it is important to have them at the agreement-drafting stage rather than only when there is an immediate medical crisis. In our experience, it is always worth taking the time to read these provisions carefully, consider how they might apply in practice, and clarify any uncertainty with your attorney during the contract review. If the parties discover that their expectations are incompatible, they can consider whether the agreement should be revised or whether the match is appropriate in the first place. Where those conversations result in a particular understanding, the parties should consider memorializing that understanding clearly in the agreement or related documentation, rather than relying on assumptions about what everyone “understood” at the time of signing. 2. Can Intended Parents Force a Surrogate to Terminate Her Pregnancy? As discussed above, the legal stage is where the parties’ shared understanding is translated into contractual language that defines their respective rights and obligations. However, even careful drafting has limits; it cannot guarantee that every provision will be enforceable as written. The short answer is no. The turn of events in the McKenna West case illustrates an important distinction between what a surrogacy agreement can require as a contractual matter and what the law can compel a person to do with their own body. A surrogacy agreement, like other contracts, can create legally recognizable rights and obligations between the parties and provide evidence of the parties' intentions. However, when it comes to enforcing a termination or selective reduction clause, no court will compel the gestational carrier to terminate the pregnancy, even if the gestational carrier agrees to do so when she signed the agreement. A court order compelling a gestational carrier to terminate a pregnancy would implicate the liberty interest in bodily integrity that is recognized under the Due Process Clause of the Fourteenth Amendment. Dobbs v. Jackson Women’s Health Organization does not change this, as it only addressed whether the Constitution protects a right to obtain an abortion, not whether a court may compel a person to undergo one. Several states, such as California, have constitutions that further protect reproductive freedom and prohibit the state from denying or interfering with an individual's reproductive freedom (see, e.g., Cal. Const., Art. I, § 1.1). In ordinary contract law, a party may seek damages for a breach of contract, but specific performance, a court order requiring a party to do what the contract promised, is a different remedy. Courts generally do not grant it for personal services. Some modern state surrogacy statutes expressly incorporate this principle. For example, the Illinois Gestational Surrogacy Act provides that “specific performance is not a remedy available for breach by a gestational surrogate of provision in the agreement that the gestational surrogate be impregnated, terminate a pregnancy, or submit to medical procedures.” (750 ILCS 47/55) In other words, even where a gestational surrogate has agreed by contract to undergo a particular medical procedure, the intended parents cannot obtain specific performance to force her to do so. Washington provides in RCW 26.26A.715(g) that the surrogacy agreement must permit the gestational carrier to make all health and welfare decisions regarding herself and her pregnancy. These rights apply notwithstanding a surrogacy agreement, and provisions in the agreement to the contrary are void and unenforceable. Under New York’s Child-Parent Security Act’s Surrogates’ Bill of Rights, it is expressly included that a gestational surrogate has the right to make decisions to continue or end the pregnancy and decisions to retain or reduce the number of fetuses or embryos they are carrying (N.Y. Fam. Ct. Act § 581-602). The statute therefore expressly preserves the gestational carrier’s authority over these medical decisions even when the surrogacy agreement provides otherwise. Some other states require similar rules to be written into the content of the surrogacy agreement. Finally, Texas Family Code § 160.754(g) provides that a gestational agreement may not limit the right of the gestational carrier to make decisions to safeguard her health and the health of the embryo. Why termination provisions still matter Nevertheless, this does not make provisions concerning termination or selective reduction meaningless. A termination clause may still define the consequences of a party's failure to follow the agreed course of action. In the McKenna West case, the agreement provided that if the intended parents request termination in writing for a fetal abnormality, as determined by a physician they designate, the carrier agrees to terminate. Her violation of such terms would be a material breach; the intended parents’ financial responsibility to her would then cease, and she must immediately reimburse all money paid to her or on her behalf and is also liable for additional monetary damages for losses beyond that reimbursement, as determined by a court of competent jurisdiction. That is the route the intended parents pursued. Unable to obtain West's compliance with the termination provision, Gilkar and Ahmed reportedly asserted breach-of-contract claims against West and sought more than $100,000 in damages. A termination or selective-reduction provision may not function as a mechanism for physically compelling a medical procedure, but it can define the parties' expectations in advance. It identifies which diagnoses or circumstances are covered, who must be consulted, and what happens if the carrier declines. After the Dobbs decision, it should also address where and by what gestational age a termination could lawfully take place. Additionally, the inclusion of the termination provision also preserves the integrity of the agreement as the foundation of the intended parents' parental rights. A surrogacy agreement allocates obligations of each party and, at the same time, documents the parties' intent as to who the child's parents will be. Under California law, as established by Johnson v. Calvert, 5 Cal. 4th 84 (1993), intent is what determines parentage in gestational surrogacy. If the surrogacy agreement is vague or silent on the scenario of termination, it may be argued by a gestational carrier that by requesting to terminate, the intended parents abandoned their intent to parent, or that her choice to carry the pregnancy to term establishes her own parental rights. A precise termination clause within a surrogacy agreement should reduce this ambiguity. 3. When a Disagreement Happens In a scenario like the McKenna West case, it is understandable that prenatal diagnosis can transform a surrogacy journey into an intensely emotional situation very quickly, and surely, such instances do not necessarily present the same question for every family. The available treatments, gestational age, and recommendations of the treating physicians can all affect how the parties understand their options, as can the intended parents’ wishes and the gestational carrier’s own views. One practical lesson we can learn from the case is that when termination appears likely to become a point of disagreement, it can be especially important not to let the intensity of the situation dictate the next steps. The first step is to identify what the parties disagree about. A dispute that looks like a single question, terminate or not, often contains several. The parties may understand the diagnosis differently, hold different views of the likely prognosis, or agree on the medical facts but disagree about whether termination is appropriate in those circumstances. Each kind of disagreement calls for different help. A disagreement about the diagnosis or prognosis may be narrowed by the treating medical team or a specialist's second opinion, and each side's understanding of its rights and obligations requires its own independent counsel. Where appropriate, the parties should also consider consulting mental-health professionals familiar with the particular pressures of assisted reproduction and pregnancy. If a joint counseling was undertaken in the past, this would be an ideal counselor to request to meet with again. While none of these professionals can guarantee that the parties will ultimately reach the same conclusion, they can help ensure that the parties have a clear understanding of the medical and legal circumstances in making a consequential decision. Time is another important consideration. A prenatal diagnosis may require additional testing or specialist consultation, while the medical options themselves change as the pregnancy progresses, and, after Dobbs, so may the places where some termination options are lawfully available. The medical timeline and the legal timeline therefore run at very different speeds. The parties may need to make time-sensitive decisions before every medical or legal question has been resolved, and they should not assume that a contractual dispute will be decided before the medical decision must be made. Intended parents may reasonably ask whether a carrier's refusal is a breach of the agreement and what remedies are available. Depending on the agreement and the governing law, those remedies may include reimbursement of specified payments or monetary damages for legally recoverable losses, as Gilkar and Ahmed sought in their breach-of-contract claims, and possibly emotional distress damages. But these remedies are not automatic: a party must establish the basis for the relief sought, and any provision on damages or reimbursement must be enforceable under applicable law. Most importantly, a claim for breach is not a request for specific performance. As discussed in Section 2, the law will not order a carrier to undergo an abortion or selective reduction. 4. What is the Chance the Surrogate Claims My Baby As Her Own and What Can Be Done? One common fear realized in the McKenna West case is, will a gestational carrier become bonded to the intended parents’ child and attempt to claim the child as her own? In West’s case, she fled to Texas and tried to claim the child was her own by virtue of her refusal to abort the child, naming the child, and challenging the parentage action in California. First, this is an extreme case which is seldom seen. Normally, the gestational carrier has had children of her own and will be attached to those children rather than the child she is carrying. In West’s case, she apparently has lost custody of her children when she left behind them in Alaska. Second, gestational carriers have undergone a psychological screening prior to the legal stage. This screening should inquire as to whether they would consider themselves the parent of the child they gestate or understand the intended parents are the parents of the child. Third, at the legal stage, their independent attorney will explain to them how the child will not be there child unless it is the result of a breach where they are the genetic mother of the child. Finally, as the West case shows, a parentage judgment can be obtained even without the cooperation of the gestational carrier, in the many states where surrogacy is legally recognized based on the contract, and this judgment arguably will be enforceable whatever state the gestational carrier lives in. Conclusion The McKenna West cases may alarm intended parents and gestational carriers who are just beginning their own journey, but it is worth remembering how rare cases like this are. Most surrogacy journeys offer multiple opportunities for parties to discuss their expectations, ask difficult questions, and build a shared understanding before pregnancy begins, and avoid continuing, or finding a compromise both can accept if they have different beliefs regarding abortion. The practical lesson is to treat termination and selective reduction as substantive issues requiring thoughtful discussion, not just routine contract language. By addressing difficult possibilities early and documenting their understanding clearly, intended parents and gestational carriers can enter an arrangement with greater clarity and confidence. Tsong Law Group specializes in assisted reproduction law across the United States, with attorneys licensed in California, New York, Washington, Arizona, Oklahoma, and Illinois. We help intended parents and gestational carriers navigate every stage of the legal process, from pre-birth orders to parentage judgments. If you're building your family through surrogacy, contact our team to schedule a consultation.

Ralph Tsong holds Australia close to his heart as an Australian native, here meeting with Stephen in 2019 in Melbourne, Australia. We had the opportunity to sit down with Stephen Page, distinguished Australian surrogacy lawyer and author of International Assisted Reproductive Technology, and recently elected Secretary of the Fertility of Australia and New Zealand. In contrast with the US, Australia’s policies on surrogacy are more restrictive and intended parents face challenges whether they pursue surrogacy at home or abroad. We are delighted to share our interview with Stephen and learn more about different surrogacy policies around the world. How did you get into the field of surrogacy and third party reproduction? It happened by accident. Back in 1988, I was working in a suburban office when a woman walked in and told me that she had just had a baby for a couple. It was clear she hadn’t gone through an IVF clinic, so it was a traditional surrogacy. She explained that the couple had paid her $10,000 to have the baby but now wanted to know if she could keep both the money and the child. At that time, Queensland, my home state, had recently passed legislation criminalizing all forms of surrogacy: traditional, gestational, commercial, and altruistic, whether carried out within Queensland or anywhere else in the world by a Queensland resident. By the time this woman came to me, surrogacy had become illegal. I advised her that, since the contract was illegal, she could likely keep both the money and the baby. I explained that, because she was the biological mother, her chances of winning in court were high, and, indeed, two similar cases had ended in favor of the surrogate. However, I also told her that it was unlikely the case would ever go to court, as the courts would probably avoid involvement, concerned that criminal offenses may have been committed. I never did go to court myself, but I’ve often wondered about that child. If he’s still alive, he would be in his twenties or thirties by now. I wonder if he was ever told the truth about how he came into the world. How much has changed in Australia regarding surrogacy since you first started practicing? Back in 1988, Queensland was the only state – and the first in the world – to declare all forms of surrogacy illegal, including surrogacy conducted abroad. I call this the "Queensland disease" because it simply doesn’t work, yet it’s been adopted in New South Wales, the Australian Capital Territory, Hong Kong, and more recently in Ireland. Despite these efforts, the approach remains ineffective. At the time, Australian states were horrified by the idea of surrogacy, and in response, they rushed to pass laws prohibiting it. Two high-profile cases influenced these decisions. One was the "Baby M" case in New Jersey, where a traditional surrogate was allowed to keep the baby. The other case occurred in Melbourne, where a woman gave birth to her sister's child via gestational surrogacy. The mother’s egg was used, and although it was a family arrangement, it still created panic among politicians, leading to widespread anti-surrogacy legislation. By 2005-2006, a Victorian senator, who later became a federal minister, highlighted a loophole that allowed surrogacy to continue in Victoria or New South Wales, which led to intense media coverage. In response, the federal attorney general urged the states to "regularize" surrogacy laws, arguing it was absurd for people to cross state lines to bypass legislation. The result was a consensus allowing altruistic surrogacy while maintaining a ban on commercial surrogacy. Over time, the Southern Territory adopted this stance between 2004 and 2012, and the Northern Territory followed by 2022. Today, surrogacy in Australia must be altruistic, which has led to a significant shortage of surrogates. Since Australians are unwilling to pay surrogates, very few women, unless they have a personal connection to the intended parents or a passion for the concept, are willing to take on the role, given the risks of pregnancy, childbirth, and potential complications. Everyone else involved in the process – lawyers, doctors, embryologists, nurses, judges, and counselors – gets paid, except for the surrogate, who is at the center of it all. This has created a traditional shortage of surrogates in the country. The most recent data from 2021 showed that only 82 children were born via gestational surrogacy in Australia. Unfortunately, we don’t have exact figures for traditional surrogacy, but it's likely around 5-10% of that total. Meanwhile, during the same period, 376 children were born to Australians through overseas surrogacy arrangements, which represents a significant increase from prior years. Before, the highest number of overseas births was 275, recorded at the beginning of the pandemic. This growing gap between domestic and overseas surrogacies reflects the ongoing challenges and complexities of surrogacy laws in Australia. Is it still the case that Australian law prohibits compensating surrogates for their services? When Australians go overseas for surrogacy, the process becomes extremely complex. In six out of eight Australian jurisdictions, they could potentially violate commercial egg donation laws by using overseas egg donors. Additionally, in three jurisdictions—Queensland, New South Wales, and the Australian Capital Territory—people could run afoul of extra-territorial commercial surrogacy laws. In South Australia, Western Australia, and the Northern Territory, there are also long-standing laws concerning commercial surrogacy that could trip them up. This creates what I call a "third ring" of complications. The first ring involves egg donation, the second is surrogacy, and the third pertains to international adoption. If someone engages in overseas adoption, paying for the child or covering the birth mother's expenses, they could potentially commit an offense back in Australia. For surrogacy, some jurisdictions treat adoption as part of the process of becoming a legal parent. This presents risks. For example, in Minnesota, there’s a second-parent adoption option where the biological father is already recognized as the sole parent at the time of the transfer, so no offense is committed under Australian adoption laws. The surrogate isn’t paid during the parental transfer, making the process legally safer. However, in Iowa, the surrogate must give consent, especially when the second parent isn’t the biological parent. Since her consent is required, there’s potential for a violation, as this could be considered payment in exchange for relinquishing parental rights, which might trigger an offense under Australian laws. Is it true that, unlike in the U.S., surrogates in Australia are not compensated and that these surrogacy laws are relatively recent? In Queensland, New South Wales, and Victoria, surrogacy laws were introduced in 2010-2011, but Western Australia, with its population of around 2.5-2.6 million, operates under a different, more restrictive system. Western Australia’s surrogacy laws aim for a "perfect system" with so many checks and balances that, in practice, it becomes nearly impossible for most people to navigate. Currently, only heterosexual couples, single women, and lesbian couples are eligible for surrogacy in Western Australia (WA). However, this leaves out single men, gay couples, and many others in the LGBTQIA+ community. While constitutionally valid, the system excludes about half of the potential market. Despite efforts over the last seven years to change these laws, no progress has been made. Even for those who are eligible, the process is extremely complex. It requires mandatory counseling, a detailed plan about the surrogate’s role after birth, and certification from a doctor. Intended parents must also apply for preconception approval through the state, which includes a mandatory waitlist and a six-month cooling-off period. On top of this, the donor must be someone the parents know and must be a party to the agreement, undergoing counseling and legal advice at the intended parents’ expense. This makes the process expensive and cumbersome, as the intended parents must cover the legal and counseling fees for both the surrogate and the donor. As a result, surrogacy in WA is rare. In 2023, only three children were born through this system, an outlier compared to the typical one per year. Meanwhile, about 20 children born to WA residents were through international surrogacy arrangements. Nationally, in 2023, 376 children were born overseas through surrogacy, compared to 38 born locally in Australia—a staggering 11 to 1 ratio. The "perfect system" in Western Australia, while filled with checks and balances, is ultimately flawed. It excludes half the potential market and is so difficult to navigate that even those who qualify find it nearly impossible to proceed. Consequently, many WA residents opt to go overseas for surrogacy instead. What is the reaction you get when you tell people you are in this field? Generally pretty positive. Most people think this is wonderful, they know about it, and they want to talk about it. But back in 2019, my husband and I had our daughter, she’s five, through surrogacy in Queensland. A journalist phoned me up and wanted to ask about what was new and interesting in the world of surrogacy. I said by disclosure, my husband and I had a baby through surrogacy in Queensland and we had to get this special ruling because there was uncertainty about parentage. He found that interesting and said, okay we are gonna do a story. The next thing you know, the photographer comes around the house, takes pictures of us. The head of the Australian Christian lobby ran a Facebook post mentioning the way of the devil and this little girl is forever being denied her mother. At which point all the trolls came on, and made these very hurtful, homophobic, remarks, it was really, really, really bad. In 2022, Pride was held in Sydney, the three of us marched as part of rainbow families, we had these yellow and pink “love makes a family” t-shirts. There was apparently a record, 500,000 people cheering on that year. And to have 500,000 people cheer on about us being parents and that was such a cathartic experience. Can you tell us about your recent book? The book is International Assisted Reproductive Technology: Well, five lawyers walked into a room in Nashville in 2018 and agreed to write a book which had been requested by the American Bar Family Section about international assisted reproductive technology. The joke is that only the Australian wrote the book. Somehow I became the sole author of the book. It was originally designed to talk about international surrogacy. As I continued, I realized I wanted to talk about other aspects. There’s a chapter just dealing with LGBTQIA+ people and the particular challenges, like dealing with countries that criminalize same sex relationships, and some of the hidden barriers. There is a chapter on finding a lawyer overseas. Australia is the most multicultural country on Earth, according to statistics, apparently 51% of us were either born overseas or their parents were. There’s about a good proportion of Australians, about 10 or 15% of the children who are born in surrogacy destinations. I’ve had a number of couples go to Iran for surrogacy, Sri Lanka, or Bangladesh. You are trying to find a lawyer in those places and oftentimes can be very, very difficult, and I don’t always succeed. It’s designed not to be an academic book that no one will ever read, this is a practical guide. What are some of the biggest difficulties your Australian clients face when pursuing international surrogacy? There are three obvious ones. The first one is cost, and the cost to us at the moment is just out of our control, so that’s a challenge. The second one is where can they go, this is particularly so if you’ve got someone who's single or gay couple. For example, one transgender client transitioned from male to female, so it becomes quite difficult. One place may say that they accept gay couples, but won’t necessarily accept transgender. It’s a nonissue with the U.S. and Canada, but an issue with other places. The third one is the issue of risk, what places are risky. Since COVID pandemic, Canada has been very difficult to access for surrogacy because their agencies are dead and they have a shortage of surrogates. The U.S. has gone up in price considerably. Australian parents go to other destinations, like Mexico, Colombia, and Argentina, but they are riskier. Recently in Argentina where a judge’s father is a good friend of the pope, who is from Argentina, said that all surrogacy should be banned. He made an order that no child through surrogacy, and no child, whether it’s a local or foreigners, could get a birth certificate, or leave Argentina. I had a client trapped in that for 4 months, he eventually managed to get a birth certificate, which says he’s the father, and then says, at the bottom, that there’s no affiliation between the child and him, in other words, he’s not the father. All this for one document. There are other challenges for Australians other than the issue of criminality and making sure to not trip up laws back here. It’s not generally a problem for Australians bringing their children back. Australia in that respect is more open and welcoming in that respect than many countries in Europe, for example. Having traveled the world to attend and speak at conferences, what is your favorite place to be, and are there any locations you would recommend? I’m amazed at where I’ve ended up. I didn’t expect to ever travel to many of the destinations that I have gone to. I’ll start with the least favorite, my least favorite was not because they weren’t welcoming, they were very welcoming, but it was because it was cold. It was Anchorage, Alaska. If you look at most of the airline schedules, they say, well, you fly from Brisbane to LA, then from LA up to Anchorage. I discovered there’s another way which was via Hawaii, so it’s straight across the pacific. I’m in love with Hawaii where it is about 70 degrees, and do the overnight flight. All the Alaskans are going home wearing their Hawaiian shirts, and you’d see flip flops and polo shirts. I thought I was gonna die, it was so cold! It was in the winter going to spring, I thought I had met my doom and gloom. I think the place that stands out to me above all others was Charleston. I spoke in Charleston in 2013, when the mass shooting happened some years later I was very upset about that because it just had an unique character, a lot of charm, that really sets it apart. Is there any truth to the stereotype that Australians are easy going? Oh yeah, I think so, but everyone’s different, Australians are well travelers. We have to be, we are in one of the most isolated places on earth, so we are used to getting on a plane and being on our feet. We have to get on a plane for many areas to go somewhere else. If we need to go to the next city in Australia, we’d typically get on a plane, because they are so far apart. So if you are going on a domestic flight, it is only a matter of time when you are going on an international flight. Do Americans have accents? What stereotypes do you have about Americans? Of course! Everyone has an accent! I think what surprised me when I first came to the U.S. in 2006 attending conferences was that the stereotypes of what was seen on TV about Americans were wrong. Americans were much more polite, demure, and didn’t swear as compared to what I’d seen and had expected. Is Australian slang particularly amusing, especially considering how it can be quite entertaining for those unfamiliar with it? You know, I’m told because of Bluey being the number one show at the moment, the Americans are talking about dunnies, yeah, Australians generally don’t talk about the dunny, you might have someone talking about it, but typically we talk about the toilet or the loo. It was funny hearing it, dunny is the word because of Bluey. Conclusion: We hope you enjoyed our interview with Stephen Page. Whether you’re an intended parent considering surrogacy or egg donation, or someone thinking about becoming a surrogate or egg donor, seeking guidance from a surrogacy lawyer is a crucial first step. At Tsong Law Group, our team of award-winning attorneys are recognized as a Fellow of the Academy of California Adoption-ART Lawyers (ACAL). Licensed in California, New York, Illinois, Washington, Oklahoma, and Arizona, we bring to the table our knowledge of the world of surrogacy law. Reach out to us today for a consultation and let us support you on your journey.

Harmony Gourson, a former surrogate and client of Tsong Law Group, openly shares her surrogacy journey on her online Tik Tok, Facebook, Instagram, and Youtube audience to bring insight into a niche topic. We represented Harmony in her first journey with Chinese Intended Parents. In our latest interview, Harmony shares her first interests in being a surrogate, the challenges with dating, joyful memories, and personal moments that defined her experience. She hopes that she can educate potential surrogates or those unaware of the option with her platform and past experiences. 1. How did you decide to do surrogacy? I always knew that I wanted to be a surrogate since I was younger. I had a teacher who tried to be a surrogate for her friend and I just thought it was the coolest thing that she could help her friend by carrying her baby. That was kind of what first put the idea in my head. When I was about 24, I felt it in my heart to do it. 2. What were you looking for when you chose your agency? I wasn't really looking for a specific agency since I was just looking to be a surrogate. I had just seen my friend do surrogacy so I asked her where she did it. She sent me the agency and that's the agency I went with so I didn't do any research or ask any questions. I applied and got pushed through the process. If I were to do it again now, I would ask when they first became an agency. That's a big question and it might seem a little bit random, but I think it's a good way to look at how many cases they've had, how they've handled them, and how many case managers they have. Your experience will depend if you go with an agency that has 40+ applications a month versus an agency that has maybe five applications a month. 3. Did you kind of know which IPs you wanted to work with? Looking back, I didn't ask any questions. All I knew was I wanted to have a good relationship with them and I wanted my son to meet them. Those were my only two requirements when it came to matching. You can have such a different experience depending on whether you have an agency or independent, whether you have a big or small agency. I had a good experience but a lot of people that I know didn't have the best experience. If I were to do it again, I would want parents who live here so that we can have just a different dynamic. 4. How was it like working with Chinese intended parents? I didn't meet my first IPs until the day that I gave birth, which I thought was crazy. It ended up being fine but I wish that I would have met them prior to in the hospital when I gave birth. My last IPs for the journey that didn't work out, I met up with them and had dinner with them before my transfer. It was a different experience but I don't mind working with any race. I got to experience both a little bit and it was a more like close relationship that we created. When the transfer failed for my second journey, it just broke my heart so there were a lot more emotions even though it didn't end up progressing into a baby. 5. How did surrogacy affect dating? My first journey I was single. People obviously don't really want to date somebody who's pregnant, especially with someone’s baby, so dating while you're actively pregnant is hard. I started dating my now husband and he was really supportive of me. He gave me a lot of support especially after the failed embryo transfer and was always on the same page from the very beginning. He thought that it was so cool that I was able to help people and he understood the whole process. I really just think the biggest thing is if your partner is supportive of you through anything, then I'm sure that they'll be supportive of surrogacy. If you don't know what that process looks like, it's hard to really explain it to a partner. I think it was easier for me because I had already gone through it before, but if you've never gone through it, you're kind of going through it together. If they have a problem with it, then you shouldn't do it, because they might have valid concerns like “I'm not comfortable with you taking that risk” and so that has to be something that you both agree on, especially if you're married. 6. How did you explain to your child your surrogacy journey? So he was almost five and I just waited until I was past the first trimester. I wanted to make sure that it was official before I explained it to him because he was so young and I didn't want to explain a miscarriage. I sat him down and told him, sometimes mommy's really want to be mommy’s but they're not able to so the doctor helps them and mommy’s, like me, carry the baby for them. Now he is almost 11 so if I were to do it again, I would just explain to him in a more mature conversation. I would explain how some people struggle to have babies because of infertility and some people just aren't as fortunate to have that experience so mommies help other mommies have babies. I would say if they are under three, then you wouldn't have to explain it. It was really important for me that he met the baby so it wasn't just like I had a baby and then all the sudden the baby's gone. He got to meet the grandma and family and experience what their dynamic is with the baby and see the baby that I carried. I think that was good closure for him. He wrote on one of his school projects fun facts about you and one of the facts was like my mom had a Chinese baby. It was so funny when he brought home the thing. 7. What are some things you did during your surrogacy pregnancy that differed from your pregnancies? I think the only thing really was traveling. I traveled more during my regular pregnancies than my surrogacy pregnancies. I did travel once with my surrogacy pregnancy to go see my grandma in Utah but that was pretty early in my pregnancy. I didn't travel at all at the end because I have really rough pregnancies with morning sickness, so I'm not really able to do much. 8. Did you intend your posts on surrogacy to go viral? How did it change things for you? How do you approach the more negative comments? I started my YouTube channel in 2014 so I was very young. I started off by doing makeup tutorials and get ready with me for cheer. It was definitely cringe when I look back on some of the videos. I just loved making videos that was just something that I love doing and then I started sharing my surrogacy journey. Because I shared everything, it wasn't really weird because I had already been posting on social media a lot. I started sharing my experience as a surrogate and then my labor and delivery video started to go viral. The labor and delivery video got millions, I wasn't expecting that but it was cool to reach a different audience I guess. It depends on when you ask me this question because I'm human. Obviously I get triggered by things and I’ve definitely responded to the negative comments. I've had to learn to just block and delete and it took me a really long time to get to this point. I still work on it every day when I get a negative comment, but I have to remember this is my platform for me to share my experience so I can talk about whatever I want. People want to come on my page and tell me, X Y and Z I can just block them because it's my page. Conclusion As our conversation with Harmony Gourson comes to an end, it’s clear that her journey as a surrogate was about creating lasting bonds and memories that will stay with her forever. Her openness offers valuable insights into the behind the scenes and rewards of surrogacy. Harmony’s story serves as a reminder of the power of compassion and the extraordinary ways we can support one another. Who we are: Tsong Law Group are surrogacy lawyers licensed in California, New York, Illinois, Washington, Oklahoma, and Arizona. Ralph Tsong is a 3-time Super Lawyer and Fellow of the Academy of California Adoption-ART Lawyers (ACAL). We represent surrogates, intended parents, and donors. Please contact us for a free consultation if you are embarking on a surrogacy or gamete donation journey.

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 an ACAL Fellow. Contact us today to begin your surrogacy journey with confidence on a solid legal footing.

One of the most important decisions intended parents and donors make in an egg donation is the level of openness and the degree of anonymity. Openness refers to future communication. Anonymity means whether the donation is identified or anonymous. This decision affects not only the egg donor and the intended parents, but also the future children resulting from a donation. Some research shows that it may be beneficial for the mental health of donor-conceived children to know more about their donors, and that concealing the donation may result in feelings of shame or mistrust when the donation is discovered. A recent survey also found donors and donor-conceived children prefer contact in the future. Furthermore, as technology increases with better facial recognition software and more prevalent DNA testing, anonymous donations are no longer guaranteed to be anonymous. Nonetheless, known donations can cause fear of uncertainty for intended parents and donor however, as parties may fear intrusive future contact, as popularized in fictional media. At Tsong Law Group, we discuss all options of openness and anonymity with our clients when we prepare an egg donation agreement and draft or review the agreement accordingly. In this article, we discuss the differences in the options you may choose as you move forward. It must be noted that the degree of openness or personal information shared ultimately depends on what both parties are willing to agree to. Anonymous or Closed Donor Arrangement An anonymous or closed donor arrangement is the traditional type of egg donation that was once the only option available to intended parents and compensated egg donors. In an anonymous or closed donation, the intended parents will choose an egg donor while knowing information such as education, age, blood type, and physical characteristics, and the egg donor will know nothing about the intended parents. When it comes to disclosure, both parties will be protected by confidentiality. Neither party will receive identifying nor contact information for each other, and the clinic, agency and attorneys will preserve the anonymity of the parties. The drawbacks for this type of arrangement include that future communication may be unavailable if the child has medical issues that have a genetic component where the donor might be able to assist or vice versa, if the child learns of the donation and wishes to contact the donor, if the donor has curiosity or a desire to know the child in the future, or if the intended parents discover inaccuracies in the donor profile. Note that recent laws in states such as California may allow the donor to communicate with a child that seeks them out when the child is 18. Semi-open Donor Arrangement Considering the drawbacks of an anonymous, closed donor arrangement, the semi-open donor arrangement mitigates some of these drawbacks while minimizing fear of intrusiveness by either party. In this type of donor arrangement, the arrangement remains anonymous. The parties will not receive full names, phone numbers, or other contact information of the other party. When it comes to future communication, there may be an intermediary for future contact such as the agency or attorneys, or a portal such as Donor Sibling Registry where both parties can register and communicate anonymously. Sometimes the parties may choose to exchange anonymous email addresses. Generally, these arrangements require the intended parents to notify the donor of a successful birth including date of birth, and successful pregnancy. The parties are not required to respond to any contact they receive from the other. Choosing this type of donor agreement allows intended parents to have potential future contact with the egg donor. This may also transition to open donation if the parties choose to identify themselves. The potential drawbacks to this arrangement are that there may be additional costs for joining a portal, or the agency or attorneys may not agree to the contact or may charge to facilitate it, and there is no guarantee there will be any response or that the message will even be checked by the other party. Open Donor Arrangement The third type of arrangement, the open donation, is less common in compensated egg donation but is becoming more common and acceptable. In fact, Colorado has passed legislation requiring donations to be open in the future. In this type of arrangement, the parties will be provided with each other’s identifying information including their full names, and phone and/or email addresses. When it comes to communication, it allows the parties to have direct communication potentially throughout the life of a child born via egg donation. However, this arrangement does not guarantee ongoing contact. The egg donation agreement should have a process for one party to request contact cease if contact is no longer required. The contract should also make clear that certain conduct, such as the donor being referred to as a parent or mother, will not be acceptable. If you are planning an egg donation, contact a fertility lawyer who is experienced in egg donation and versed in the different options for openness and anonymity. Attorney Ralph Tsong has been accepted into the Academy of California Adoption-ART Lawyers (ACAL) and can handle your case with ease and efficiency. If you need assistance, contact us now. This article is for informational purposes only and should not be relied upon without additional research or consulting an attorney. This article is not legal advice and does not create an attorney-client relationship with the reader.

What are liens? A lien is defined as a claim of an interest on a property right. Some insurance companies in certain states (among them, Colorado, California, Washington, Oregon, Hawaii, and Idaho), have written “the right to lien” into their insurance policies when it comes to surrogacy arrangements. Insurance liens are normally an insurer’s claim to recover from an injured victim’s award or settlement with the person or company that caused the injury. Because compensated surrogacy contracts involve a payment from intended parents to the gestational surrogate and perhaps because surrogacy is becoming more common and will require medical treatment, insurers have expanded their right to lien to cover a surrogate’s compensation. In California, some insurers limit their lien amount to 1/3 the compensation based on California Civil Code 3040 because the surrogate retained an attorney. However, other insurers will state they have a right to lien the full compensation. What is the procedure for a lien? An insurance policy which has a lien will require the surrogacy contract be mailed to them after signing. The lien comes in the form of a demand from the insurance company (usually a third party on behalf of the insurer) after the birth of the child by the surrogate. The insurance company will send a list of fees which they have paid to the hospital for the delivery. Sometimes they include the fee for maternity care. The surrogate will be responsible under the policy, for paying the lien, however, under a properly drafted surrogacy agreement, the intended parents should be responsible for covering the lien. The lien could be capped at the total compensation of the surrogate, or 1/3 in the case of some liens in California. If the lien is from Kaiser, the amount that the insurance paid for the treatment as Kaiser is the health care provider as well as the insurer may be in dispute. How on earth is this legal? It very well might not be legal. Liens are based on contract principles rather than state law. While 42 states have laws on the books that allow hospitals and physicians to recover from a tort damages award, few states (California being one) have laws that recognize an insurer’s lien. The law that some insurers rely on to lien in California (Civil Code 3040), is meant to be limited to tort claims as under the medical lien statute (Civil Code 3045.1). If it is based only on the insurance policy, the lien would seem questionable as it might discriminate against women (by charging only women more as only women can be surrogates), or for disparately impacting only people who have infertility or are not able to reproduce without a surrogate. In some states like California, arbitrary discrimination is not allowed. In addition, maternity care is considered essential and must be covered under the Affordable Care Act. So why are liens still around? Good question. So far no one to our knowledge has challenged the legality of surrogacy liens. It very well could make a good class action or a complaint to be referred the state civil rights department. Complaints to the insurance commissioner have been less successful. For now, most cases we see, most parties avoid liens by choosing an insurance option that does not have liens. Some people may be ok with a lien if it is through the surrogate’s insurance plan and is still cheaper than buying a new policy and paying the deductible. Others have their lien negotiated down to nuisance levels. However, it seems unfortunate that surrogacy liens continue without a challenge. If you are hit by a surprise or unreasonable lien, we may be able to refer you to someone who can consider your complaint. Conclusion It’s important to hire an attorney who is familiar and can explain insurance liens and what your liability may be as a surrogate or intended parent in the contract. As a Fellow of the Academy of California Adoption-ART Lawyers (ACAL), Tsong Law Group brings extensive expertise to the practice of surrogacy law. Our award-winning lawyers are licensed in California, New York, Illinois, Washington, Oklahoma, and Arizona. For a free consultation in ART law, contact us now. This article is for informational purposes only and should not be relied upon without additional research or consulting an attorney. This article is not legal advice and does not create an attorney-client relationship with the reader.

Introduction It’s widely understood that treatment for infertility such as IVF or artificial insemination and pregnancy expenses are deductible medical expenses under IRS Tax Code section 213. A question intended parents have asked us as their surrogacy lawyer, if infertility and pregnancy treatments are deductible, what about medical expenses or costs incurred in surrogacy or egg donation, as these are also treatments for infertility? What about surrogacy and egg donation costs? The answer whether expenses for third party reproduction can be considered medical expenses and written off on an intended parents’ taxes appears to be “no.” This answer is based off on April 9, 2021 Private Letter Ruling of the Internal Revenue Services (IRS) where a gay male couple requested a ruling to allow them to deduct for costs and fees related to medical expenses directly attributable to one or both of them, for egg retrieval from an egg donor, in vitro fertilization (“IVF”), with a surrogate, childbirth expenses attributable to the surrogate, medical insurance for the surrogate, legal and agency fees related to the egg donation and surrogacy, and any other medical expenses arising from the surrogacy. The 2021 IRS private letter ruling on surrogacy expenses The IRS in its Private Letter Ruling held that costs and fees related to egg donation, IVF procedures, and gestational surrogacy do not qualify as deductible medical expenses. The IRS stated that the costs and fees directly attributable to medical care for diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body of the taxpayer, the taxpayer’s spouse, or taxpayer’s dependent qualify as eligible medical expenses. However, expenses incurred on behalf of third parties (not the spouse or dependent), which occur during egg donation, the IVF procedures, and gestational surrogacy are not incurred for treatment of disease nor are they for the purpose of affecting any structure or function of taxpayers’ bodies. What expenses may still qualify? Only the sperm retrieval and sperm freezing could be deductible since there were for medical care that was actually performed on one of the taxpayers' intended parents for the treatment of a disease. This ruling is in line with previous case law which found that only infertility treatments performed on the body of the person claiming a medical expense (and not a third party such as a donor or surrogate) fall under the definition of medical expense. Conclusion The ruling of the IRS makes clear that it interprets the statute requires a taxpayer to show that the expenses qualify as “medical care” for the taxpayer or his or her spouse or dependent. Unfortunately, this decision seems to treat infertile individuals differently. If a man and woman can have IVF expenses considered medical expenses, should it no longer be a qualified medical expense if the man or woman uses a donor gamete when they perform IVF? It should be noted that a private letter ruling is not precedential, it is a decision only affecting the parties requesting it, so the IRS could be asked in the future and have a different ruling. Likewise, a denial could be appealed to the tax court which might rule differently. Read more about the deductibility of third party reproduction related expenses in our blog on egg donation expenses here. The difference in outcome may surprise you. Why consult a surrogacy lawyer? As you embark on your journey, whether you are considering surrogacy or egg donation as an intended parent, or as a potential surrogate or egg donor, consulting with a surrogacy lawyer is a good place to start. As a Fellow of the Academy of California Adoption-ART Lawyers (ACAL), Tsong Law Group brings extensive expertise to the practice of surrogacy law. Our award-winning lawyers are licensed in California, New York, Illinois, Washington, Oklahoma, and Arizona. For a free consultation in ART law, contact us now.. This article is for informational purposes only and should not be relied upon without additional research or consulting an attorney. This article is not legal advice and does not create an attorney-client relationship with the reader.

In Washington, surrogacy agreements are governed by specific legal requirements to ensure all the rights of parties involved. If you are an intended parent interested in growing your family via surrogacy or becoming a surrogate, you should become familiar with Washington’s requirements. In 2019, Washington enacted one of the best surrogacy laws in the country; making it a popular state for surrogacy. They recognize intended parents as the child’s parents before birth through court documents from a Pre-Birth Order. Their regulates serve as a framework for a clear and ethical surrogacy journey. Requirements of Gestational or Genetic Surrogacy Agreements Firstly, all parties involved like intended parents (IP) and the gestational carrier (GC) along with her spouse if applicable, must be at least 21 years old. The GC should have previously given birth to at least one child or not have entered into two surrogacy agreements that resulted in birth. Washington requires that all parties undergo medical evaluations and mental health consultations to assess physical and psychological suitability to enter the gestational surrogacy agreement (GSA). Both parties will have independent legal counsel with the IPs responsible for covering the costs of the GC’s legal representation. The attorney for the GC will help review the GSA so that all parties fully understand their rights and potential liabilities under the agreement. The surrogate's spouse will be involved in the GSA as mandated by Washington law. This requirement acknowledges the spouse’s legal rights regarding any resulting children. The surrogacy agreement must be executed and signed before a notary public. This procedure ensures the validity and enforceability of the GSA. The GSA needs to disclose IPs’ financial responsibility for covering the medical expenses of the GC and the child. This will include a review of insurance coverage or any necessary purchases of insurance plans. The agreement should also outline medical costs that are not covered by insurance and how the GC can submit surrogacy related costs for reimbursements. Life insurance purchase is necessary before the GC’s embryo transfer. IPs must appoint a designated person to be the alternate parent or guardian to step in if both IPs pass away prior to the birth of the child. Washington law specifically states that the GC must retain the ability to make healthcare decisions regarding herself and the pregnancy, as outlined in Revised Code of Washington (RCA) Ch. 26.26A.715(1)(f). This gives the surrogate autonomy over her medical care throughout the pregnancy. However, Washington law requires a clear outline of circumstances for abortion or selective reduction. The agreement should also include responsibilities of GC to attend all doctor visits, follow proper medical instructions, and comply with any restrictions such as food, travel, and physical. The agreement should also have a clear breakdown of how the GC will be compensated. This will include any potential invasive procedures that GC undergoes like a c-section or loss of an organ. The clear breakdown of compensation is helpful for all parties to understand when certain amounts will be paid, such as if the pregnancy results in a twin pregnancy. Like any GSA, Washington GSAs should also include sections regarding breach or termination of contract. If all requirements are met, a Washington court can enter a prebirth judgment affirming that the intended parents are the legal parents of the child conceived through surrogacy and they will be listed on the birth certificate to be issued. The parentage action will be filed in the county where IPs reside, GC resides, where the child will be born, or where the medical procedures will be performed. With the help of a surrogacy attorney, you can safely complete a successful surrogacy. The attorneys of Tsong Law Group have extensive experience in the niche field of surrogacy law. Based in California, the attorneys of Tsong Law Group are also licensed in Washington, New York, Illinois, Arizona, Oklahoma, and California. They are also a fellow of the Academy of California Adoption-ART Lawyers (ACAL). If you need assistance with your surrogacy agreement, contact us today. This article is for informational purposes only and should not be relied upon without additional research or consulting an attorney. This article is not legal advice and does not create an attorney-client relationship with the reader.

With the compensation egg donors receive usually described in an egg donation contract as payment for pain and suffering, time and inconvenience rather than for the eggs retrieved and donated, you may be wondering if the donor’s compensation from egg donation reportable income on your annual taxes is. The simple answer to this question is yes. In the eyes of the Internal Revenue Services (IRS), egg donation is considered to be compensation for services rendered, thus the payment from an egg donation is considered reportable taxable income. When dealing with the human body, the tax laws can be a tricky subject. Recently in 2015, the United States Tax Court in the case of Perez vs. Commissioner, 144 T.C. 51 (2015) considered a donor’s argument that compensation for pain and suffering paid under an egg donation should be non-taxable. All parties agreed that an egg donation compensation was for the donor’s pain, suffering, time and inconvenience, and not for the actual sale of body parts. Under the US code, damages for pain and suffering, paid in settlements or lawsuits for personal injuries and accidents are non-taxable. However, the tax court determined that the compensation for “pain and suffering” to the donor in an egg donation is unlike the damages in a tort case. Instead, any pain and suffering experienced is on account of a medical procedure which the donor has consented to. Because any physical pain that the donor suffered was a result of performing a service contract for egg retrieval and not for an unwanted invasion against body, the compensation for the egg retrieval falls under the broad definition of income and was not exempt from tax. As a result, the compensation paid to an egg donor represents taxable income. Some egg donor programs provide their donors with a 1099 tax form but if you don’t receive a 1099 form from the program, it is your legal responsibility to report any income you’ve earned from egg donation. Note that not all compensation from egg donation is taxable. You may deduct out of pocket expenses related to going through the process such as your mileage, meals, and travel expenses. If these are paid to you in the form of allowances or reimbursements, this is not part of your income. CONCLUSION There are a lot of things to consider when deciding the compensation for donate eggs, and the taxable status of income should be one of them. It is best to discuss your taxes and income with your tax advisor so that they may properly advise you on your options. As a Fellow of the Academy of California Adoption-ART Lawyers (ACAL), Tsong Law Group brings extensive expertise to the practice of surrogacy law. Our award-winning lawyers are licensed in California, New York, Illinois, Washington, Oklahoma, and Arizona. For a free consultation in ART law, contact us now. This article is for informational purposes only and should not be relied upon without additional research or consulting an attorney. This article is not legal advice and does not create an attorney-client relationship with the reader.

It’s widely understood that treatment for infertility such as IVF or artificial insemination and pregnancy expenses are deductible medical expenses under U.S. Code section 213. A question intended parents have asked us as their surrogacy lawyer, if infertility and pregnancy treatments are deductible, what about medical expenses or costs incurred in surrogacy or egg donation, as these are also treatments for infertility? The 2021 Private Letter Ruling The answer whether expenses for third party reproduction can be considered medical expenses and written off on an intended parents’ taxes appears to be “no.” This answer is based off on April 9, 2021 Private Letter Ruling of the Internal Revenue Services (IRS) where a gay male couple requested a ruling to allow them to deduct for costs and fees related to medical expenses directly attributable to one or both of them, for egg retrieval from an egg donor, in vitro fertilization (“IVF”), with a surrogate, childbirth expenses attributable to the surrogate, medical insurance for the surrogate, legal and agency fees related to the egg donation and surrogacy, and any other medical expenses arising from the surrogacy. The IRS in its Private Letter Ruling held that costs and fees related to egg donation, IVF procedures, and gestational surrogacy do not qualify as deductible medical expenses. The IRS stated that the costs and fees directly attributable to medical care for diagnosis, cure, mitigation, treatment, or prevention of disease, or for the purpose of affecting any structure or function of the body of the taxpayer, the taxpayer’s spouse, or taxpayer’s dependent qualify as eligible medical expenses. However, expenses incurred on behalf of third parties (not the spouse or dependent), which occur during egg donation, the IVF procedures, and gestational surrogacy are not incurred for treatment of disease nor are they for the purpose of affecting any structure or function of taxpayers’ bodies. Only the sperm retrieval and sperm freezing could be deductible since there were for medical care that was actually performed on one of the taxpayers' intended parents for the treatment of a disease. This ruling is in line with previous case law which found that only infertility treatments performed on the body of the person claiming a medical expense (and not a third party such as a donor or surrogate) fall under the definition of medical expense. The 2025 Private Letter Ruling On January 31, 2025, the IRS released a new Private Letter Ruling, this time addressing the question whether a heterosexual married couple with a diagnosis similar to infertility could deduct third party reproduction expenses. The couple had an egg donor and a surrogate and requested a ruling to deduct the egg donor related costs, medical expenses of sperm retrieval, sperm freezing, IVF medical costs, surrogate medical insurance costs, childbirth expenses, legal and agency fees, and other medical expenses arising from surrogacy. The IRS noted that the use of assisted reproductive technology did not directly and literally affect the structure or function of the intended mother’s body but will instead affected the structure or function of the surrogate. It also held that medical expenses were not deductible as they do not meet the basic requirement of U.S. Code section 213(a)(1). Like the 2021 Private Letter Ruling, the IRS found that only the care directly attributable (i.e., sperm retrieval) to the taxpayers was subject to deduction under Section 213. Conclusion The rulings of the IRS make clear that it interprets the IRS tax code to require a taxpayer to show that the expenses qualify as “medical care” for the taxpayer or his or her spouse or dependent. Unfortunately, this decision seems to treat individuals suffering infertility differently. If a man and woman can have IVF expenses considered medical expenses, should it no longer be a qualified medical expense if the man or woman uses a donor gamete when they perform IVF? It should be noted that these private letter rulings are not precedential, the decisions only affect the parties requesting them, so the IRS could be asked in the future and have a different ruling. Likewise, a denial could be appealed to the tax court which might rule differently. Read more about the deductibility of third party reproduction related expenses in our blog on egg donation expenses here. The outcome is strikingly different, and the latest 2025 ruling appears to contradict the ruling. As you embark on your journey, whether you are considering surrogacy or egg donation as an intended parent, or as a potential surrogate or egg donor, consulting with a surrogacy lawyer is a good place to start. As a Fellow of the Academy of California Adoption-ART Lawyers (ACAL), Tsong Law Group brings extensive expertise to the practice of surrogacy law. Our award-winning lawyers are licensed in California, New York, Illinois, Washington, Oklahoma, and Arizona. For a free consultation in ART law, contact us now. This article is for informational purposes only and should not be relied upon without additional research or consulting an attorney. This article is not legal advice and does not create an attorney-client relationship with the reader.