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.

In Grace Kao’s book My Body, Their Baby: The Ethics of Surrogacy, she tackles the question of what makes surrogacy ethical and consistent with progressive Christianity. Kao, a professor of theology at the Claremont School of Theology, responds to both feminist critiques that surrogacy exploits women and Christian conservative critiques that it violates family and motherhood. She draws from extensive research on surrogacy and personal experience to come up with an argument and framework that gestational surrogacy aligns with both feminist principles of bodily autonomy and Christian values of caring for others. We sat down with Kao to explore how Kao became a surrogate for her friends, how her experience inspired her to research the field and write this book, and discuss her vision for bridging the gap between traditional religious values and modern reproductive choices. In our conversation, she shares insights about developing ethical surrogacy arrangements that protect all parties involved while honoring both feminist and Christian principles. Q. How did you decide to write the book? A. When I agreed to carry for my friends, it was never with the thought of getting a book deal out of it. I was pregnant again at 40, and this was a surprise to many people, because I already had 2 small kids. I would have these exchanges where they would congratulate me but then I would say “Thanks but I'm actually caring for my friend. This is not a baby for me.” Many women told me, “I could never do that” while others said “I’ve thought about doing it for my sister or friend.” Some questioned whether I could “give up” the baby or what my husband thought. I found there is a lot of interest and misunderstanding about surrogacy and because I have the academic skills to do so, I thought I would commit it to writing about it. Q. What was your first exposure to surrogacy? A. I used to watch Friends, the sitcom. There was this one episode in the 90s where one of the main characters, Lisa Kudrow’s character, Phoebe, ends up carrying triplets for her brother in the show. I forget how old I was, maybe I was in college or so but I remember thinking “Oh, that's like a really nice thing.” I didn't think it was odd. I just thought that's really cool. I didn’t know other surrogates. Years later, as someone who’s had easy pregnancies, I said “yes” when a friend who had been struggling with infertility for a decade basically asked. Q. How much research did you do before you entered into your surrogacy contract and what advice would you have for a potential surrogate who is doing research? A. I actually did not do very much research before I agreed to be a surrogate. I came to learn that California is the surrogacy capital of the world and also what we needed to do to get a pre-birth parentage order. One of my biggest sore points is that I didn't fully understand that I had not contracted away my right to decide on things like embryo transfer, how many, or termination. Going forward, I would really want to make sure that surrogates understood that they never actually yield that right, whatever private agreement they might have with IPs. And while the State of California doesn't require it, a good idea would be to schedule a few meetings between intended parents and the surrogate in the postpartum period. The literature shows that the sudden cutoff can be very painful, not because the surrogate bonds with the child, but because many surrogates form a bond with the IPs. If they had a few meetings already set, they could potentially continue to nurture that relationship because the research shows that continued contact between their baby and intended parents is in the best psychological interests of all involved. Q. You talked about religious objections to surrogacy in your book. Can you tell us about those? A. I'm focused in the book on Christian objections, and depending on what religion you're talking about, there will be different ones. In Judaism, there are cultural and religious pressures, especially in Israel, to continue the family line, to procreate. It's a pronatalist state, and so surrogacy there is heavily subsidized. But to conform with religious requirements , you have to make sure you have an unmarried woman who is a surrogate, and there is this whole approval process by a government committee. In Islam, it's generally understood as haram (forbidden) for one woman to bear a child for another owing to concerns about adultery and family lineage, though there are differences between Sunni and Shia Muslims and there have been cases of co-wives licitly serving as surrogates. In a Buddhist context, I talk in my book about how some Buddhist surrogates in Thailand understand themselves as creating merit for themselves at the same time as they are performing these good and compassionate deeds for others. In my book, I'm focusing on Christian objections, and I would say that we can divide those as objections from the left and objections from the right. Objections from the right have to do with the “queerness” of inviting a third person into a husband-wife scenario and the IVF process creating thousands of embryos. If you hold a pro-life, life-begins-at-conception view, then you are really distraught about all those embryos that are never going to be brought to full term. There's also concern about choosing reproductive technology to expand your family instead of adoption. The Catholic version of the objection is about separating sex from reproduction - the Catholic Church teaches that even if you're doing artificial insemination by husband into his own wife, that is illicit because you are never to separate sex from reproduction. That's why you can't use artificial contraception, you can’t engage in same-sex sexual activity, you can’t masturbate, you can’t have an abortion – all of those activities separate conjugal union (sex) from procreation (reproduction) Now from the left, what I do in the book is try to show that there's a gap, meaning there are mainline Protestant denominations who in the past several years/decades have approved marriage equality. You can be a gay minister, you can be a same-sex couple in a legal marriage, and they've also approved the conscientious use of IVF for infertile couples in addition to adoption. So it's not so much that there are objections, but they have yet to resolve the issue about surrogacy, and at that point the concerns from the left mirror the concerns that secular folk, like secular feminists, have about surrogacy - about whether the practice is exploitative, whether IPs are just instrumentalizing and commodifying woman's bodies, that type of thing. Q. Are the Biblical examples of surrogacy good arguments in support of modern surrogacy? A. No. The Biblical models of surrogacy are actually pretty horrific, because they always involve older, more powerful women orchestrating relationships with their husband and their likely younger, more fertile “handmaids” or slaves. I’m talking about the stories of Sarah and Hagar (with Abraham, Ishmael and Isaac), or the co-wives of Jacob (Leah and Rachel and their “surrogates” Bilhah and Zilpah), or Naomi with Ruth and Boaz. These are all examples of traditional surrogacy. With the possible exception of the Ruth-Naomi-Boaz story, we would consider all of these today as non-consensual situations, because you cannot truly consent if you're someone's slave being told you have to have sex with someone else’s husband to bear a child for his wife. So yes, absolutely, the Biblical models are awful, and there is not very much to be learned from them except to read them as cautionary tales for surrogacy practices today. Q. You talked about feminist reactions, what is your response to feminist arguments? A. I'll start with two things. First, I think the asymmetry is strange. The asymmetry here is that secular and progressive Christian feminists have united and converged on the right of a woman or pregnancy-capable person to decide whether to continue a pregnancy or terminate it. There is universal agreement that's a good thing, again, not on the conservative side, but among feminists. However, they have not come to agreement on the good and right of a pregnancy-capable person to undertake a pregnancy for someone else. Somehow, it's okay to say ‘I'm going to continue my pregnancy, or I'm going to end it,’ but they get all concerned if you say ‘I'm going to undertake a pregnancy for someone else.’ I think that asymmetry undermines the larger claim about trusting women, about trusting that they know what they are and are not capable of, what they can and cannot handle, and respecting their autonomy, decision-making, and integrity. That's point number one. Point number two is that there is a widespread racialized understanding that it's rich white people going to Laos, Thailand, and India, etc. commissioning poor brown, yellow, and black bodies. In that image, the assumption is that those women don't know what they're doing, they're just tragic figures being duped or mesmerized by the money. That's problematic from a post-colonial perspective, but it's also problematic when you look at the actual studies and research. Women who get paid to become pregnant for others report a mixture of motives: many want the money – yes – but they also want to help others, they care about their maternal identity, and they want to help others become parents, too. If you're going to argue that poverty prevents surrogates in other countries from providing full and free consent, then you're technically committed to saying they can't consent to anything. They can't consent to work in a garment factory, to do custodial work, to do other care work, or anything. And then you have to wonder why critics are singling out surrogacy as an exploitative practice and not these other industries. Q. In the past, opponents of surrogacy pointed out a surrogate was paid below minimum wage and that could be exploitative. Now that surrogate compensation has risen, sometimes to $50,000 or more, the argument has become that surrogates are making too much money, and and it’s too much of an incentive for women to become surrogates? A. All you have to do is watch reality TV to know what role financial inducements can play. If the incentive is too great, sometimes people will minimize risks, physical or psychological, they might be rushed into the process. I think we have to accept that yes, money might change the equation. The problem I have, though, is the ‘therefore.’ Some people might say, ‘and therefore this is why we should not allow for it. We shouldn't allow for any compensation.’ But what I've seen is that prohibition just drives the practice underground. The UK is very interesting. Technically, you cannot run surrogacy as a commercial enterprise. You can't advertise your services, you can't put out an ad, but you can offer compensation. So far the courts have allowed something like 15,000 GBP, but in many cases, people are still paying under the table and not officially registering. There are all sorts of issues when the paperwork isn't done properly, and one reason people aren't doing the paperwork properly is because they don't want to get caught giving more compensation than they think the courts will allow. And this can pose problems down the road about legal custody and inheritance rights. I've become a bit of a realist about prohibition, it does not actually help to stop the practice, but simply drive it underground. Q. Your book is written from a progressive Protestant perspective, can you explain the how it differs from mainline and evangelical Protestant thinking? A. “Progressive” is sometimes a word that people use interchangeably with "liberal," but "liberal" has a certain kind of connotation, too. The mainline Protestant denominations (Lutheran, Presbyterian, Episcopalian, Methodist, etc.) actually connect to specific institutional and church forms. "Progressive Christian" is not something that is strictly bounded. For instance, I would say there are progressive Christians who are Catholics or there could be progressive Christians who technically go to an evangelical church. The reason I call it a progressive Christian vision is because I'm not starting from square one. I'm already starting from a set of commitments. For example, I support same-sex marriage and same-sex parenting. I'm not debating whether it's okay to use reproductive technology, because many mainline and a number of progressives will agree to that. I say very clearly in my book, if you don't start with my premises "it's okay to be gay, it's okay to separate sex from reproduction" then there's nothing I've written in the book that will persuade you, because you will fundamentally reject my premises. I'm sure you know that Pope Francis has been speaking up about surrogacy. And even though I've written an op-ed in response, we just have completely different starting premises. My book can't really engage him or the Catholic Church where they’re at Q. What if someone is an evangelical Christian and is considering surrogacy (believe in reproductive rights or or gay marriage), what can they take away from your book? A. About evangelicals: There are left-leaning, centrists, and right-leaning ones. Many evangelicals, just like many Catholics in conformity with the Catholic Church, will say life begins at conception. This is why they're anti-abortion. What I've found is that evangelicals, more so than Catholics, are supportive of IVF. This is why after the fall of Roe v. Wade, many states with trigger laws on abortion have been carving out exceptions for IVF. They have moral squeamishness about abortion, but many of them actually do and believe in IVF even though they have likely contributed to the death or destruction of embryos. Catholics are more consistent on the issue. Once you start with “you can't separate sex from reproduction,” you never get to the problem of “what about these embryos?” I think number one, evangelicals have to come to terms with the fact that if they are going to do this (gestational surrogacy or IVF), they may be complicit in the death and destruction of embryos. Now, there are some evangelicals who offer advice contrary to ACOG. They basically say just fertilize one egg at a time—go through one cycle, then try to fertilize one egg and see if that one takes, because they're trying to be consistent. That's not a best practice medically. The other thing I talk about, although this gets us a little bit outside of surrogacy, is that some evangelical Christians are doing what they call "embryo adoption" where they are transferring surplus, cryopreserved embryos (leftover from others’ IVF cycles) because they want to give them a chance for life. Ultimately, I'm not going to start my argument with "is it okay to separate sex from reproduction?" I'm just starting from where many progressive Christians already are. Q. Your book talks largely altruistic or unpaid surrogacy journeys. What ethical guidelines do you believe should apply in compensated journeys? A. I begin with unpaid surrogacy as a starting point, along with other baseline assumptions such as gestational surrogacy taking place within one legal jurisdiction, to establish my initial argument. In Chapter 6, I specifically address what happens when these assumptions change—when surrogacy involves compensation, crosses borders, or is traditional rather than gestational. I propose seven ethical norms for surrogate arrangements. When parameters change, such as when arrangements cross jurisdictional boundaries or involve compensation, additional ethical considerations arise. Regarding compensation, I argue that payment doesn't negate altruistic motives. If we assumed it did, we'd have to apply the same logic to firefighters, nurses, and teachers—claiming they only work for money or that their receipt of money cancels out their desire to help others, which isn't accurate. People can have multiple motivations. Q. Should surrogacy be restricted to IPs who have a medical need for it? It's important to distinguish between ethical guidelines from a progressive Christian commitment and legal regulations. In my book, I focused on the IPs’ medical necessity as a condition to get the progressive Christian argument off the ground (note: medical necessity here would be defined as a lack of a suitable uterus, so two gay men wanting to become parents through surrogacy would meet this requirement), but I understand why people might seek surrogacy for other reasons as well. In short, there might be many reasons for the law to protect or allow for arrangements outside of what I think progressive Christianity could support. Q. If a surrogate lives in a state with restrictive abortion laws—where she cannot terminate the pregnancy after approximately 6 weeks, except under very limited circumstances or not at all—what ethical concerns do you have about this situation? A. Given that earlier, I had said one of my regrets is that I didn't fully understand that I didn't sign away termination or embryo transfer rights, that's exactly part of the serious consideration a surrogate needs to take. If I get pregnant, how difficult is it to seek an abortion if needed? Almost every state has some sort of escape clause, if it's a life-or-death situation, they'll allow for an abortion. But if you dig deeper, we now have heard several cases where women were miscarrying or seeking an abortion but were denied care because hospitals were not yet ready to intervene. And in some of the most tragic cases, this delayed care led to the woman’s death. So that's absolutely a very, very serious risk! This might be reason enough for someone to say, “No, I don't want to take this risk. Because if I'm not allowed to terminate, or if I have to be at this dangerous stage of medical failure before I can seek intervention, it's not worth it.” Q. Your use of surrogate mother or surromom might disturb some in this field who believe the surrogate should not reference motherhood, can you explain why you chose that term and would you use a different term in compensated surrogacy? A. I talk about this in the preface, because I know, medically, the term they would use for me is "gestational carrier." It's funny because there are academics who are offended by that term. They think "carrier" eliminates the agency and personhood of the surrogate. I decided to use "surromom" and "surrogate mother" because that's how women identify themselves. If you read surrogacy online discussion boards, Facebook groups, or look at the ethnographic literature, they don't have a problem using the word "mom." In saying that, they accept what's called "maternal multiplicity." If I'm a surromom, it doesn't mean that I'm the mother of my friend's child—it just means I served one of many maternal roles. As a side note, I made a comment before about how my contract had all these weird clauses about how I promised not to form an intention to bond with the baby. They're so worried that even if the surrogate is carrying the child, she's going to naturally want to keep it. I think that's where the offense comes from. People are so worried it's not going to work out in the end that they're trying to create controlling language. I understand the legal and medical reasons why certain terms like “gestational carrier” or “surrogate mother” are used. But looking at the research and how these terms are actually being used by surrogates themselves, I didn't have a problem with using “surromom.” Conclusion My Body, Their Baby is a unique book that takes the deepest dive into the ethics and theology of surrogacy we know of from the unique perspective of a former surrogate. Kao takes the arguments of opponents of surrogacy seriously, and with the support of much published research, presents a framework of surrogacy that will appeal to progressive Christians and feminists. It is a must read for anyone who works in the surrogacy field who wants to understand how to not just defend surrogacy arrangements from moral objections but make arguments that surrogacy is a social and Christian virtue. As voices against surrogacy grow, it may be important for supporters of surrogacy to find persuasive arguments, that makes Kao’s book all the more a timely read. We at Tsong Law Group enjoyed reading this book as an intellectual exercise and change of pace. 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 three-years running Super Lawyers are licensed in California, New York, Illinois, Washington, Oklahoma, and Arizona. Contact us now.

Are you ready to start your surrogacy journey? How Birth Certificates Work for Same-Sex Parents — and Why Your Lawyer Matters Introduction For same-sex couples and parents, a birth certificate isn’t just paperwork—it’s a legal shield. But recognition can depend on your relationship, how your child was conceived, and which state you’re in. In this guide, Tsong Law Group explains what same-sex parents need to know about protecting their rights—before and after the birth. Understanding Legal Parentage and Birth Certificates A birth certificate reflects who a state recognizes as the parents. In some states, the markers are Father/Mother and Mother, in others like California, they may be Father/Mother/Parent. In some states you can even have more than two parents. To get on a birth certificate as a parent, you can give birth, be married to someone who gives birth, sign a declaration of parentage, or in a surrogacy birth, have a parentage judgment. You can also adopt a child to get named on the birth certificate, or file a parentage action if you have a genetic relationship. In the past, some avenues were only available to heterosexual couples. Two major U.S. Supreme Court rulings have changed how states must treat same-sex couples: Obergefell v. Hodges (2015) established nationwide marriage equality. This means married same-sex couples must be given the same rights and responsibilities—including parental recognition—as heterosexual couples. Pavan v. Smith (2017) clarified that states must list both spouses as legal parents on birth certificates for children born into a marriage, regardless of gender. What to Expect Based on Your Situation Every family forms differently—but legal systems often default to assumptions rooted in biology or heterosexual marriage. Here’s what to anticipate based on your specific relationship and parental role: If You’re Married: Automatic Recognition: Most states, including California, automatically list both spouses on the birth certificate when the child is born during a legal marriage. Equal Rights Without Court Action: You’re generally treated the same as any heterosexual couple at the hospital and vital records office. Legal Reinforcement Optional but Wise: Many couples still choose to pursue a confirmatory adoption, which is a court order that confirms the non genetic parent as a parent, or sometimes in the case of reciprocal IVF (where one partner carries the embryo of with other parent’s genes), for both parents. This can be a prudent precaution if they plan to live abroad, move to a less-friendly jurisdiction, or want added security for school or healthcare decisions. If You’re Unmarried: In California and states where parentage statutes have been updated post Obergefell: You may be able to sign a Voluntary Declaration of Parentage (VDOP) at the hospital, immediately establishing both parties as legal parents without court involvement. In Less Supportive States: You could be required to initiate a court parentage order or adoption before your name is recognized. If You’re the Non-Biological Parent Your legal standing may not be automatic unless you're married and in a state that recognizes spousal parentage presumptions. You may not be listed without legal action. Second-parent adoption is common. This formalizes your legal relationship with the child and is recognized nationwide. Court-issued parentage orders add protection. These may be easier than adoption in some cases and affirm your rights in custody, benefits, and inheritance matters. Planning ahead is key particularly if you’re expecting a birth via surrogacy or ART, it’s best to have your paperwork in motion well before delivery day. Using Surrogacy? Know the Legal Layers For many LGBTQ+ families, gestational surrogacy is how the journey to parenthood begins. But the legal process isn’t uniform across the country. Whether you’re working with a surrogate in California, New York, Illinois, Washington, Arizona, or Oklahoma, your surrogacy plan needs legal guidance tailored to your state’s laws. Some states—like California, New York, and Illinois—allow you to secure a pre-birth parentage order before the baby is born. Others—like Oklahoma—may require additional steps after delivery to establish legal parentage, while Arizona requires an attorney who is experienced in the jurisdiction to ensure the birth certificate issues correctly. And even within surrogacy-friendly states, the specific documentation and hospital protocols vary. Surrogacy isn’t just medical—it’s legal. Early planning with a surrogacy lawyer licensed in your state is key to avoiding last-minute complications. Key Legal Tools for Surrogacy Pre-Birth Orders (PBOs):In surrogacy-supportive states like California, New York, Illinois, and Washington, courts allow intended parents to secure a parentage judgment before the child is born. This ensures that only the intended parents—not the surrogate—appear on the birth certificate. Post-Birth Orders or Confirmatory Adoptions: In states like Texas or Florida, legal parentage may need to be confirmed after birth. A court-issued order or adoption—especially for non-genetic parents—can secure full legal rights. Hospital Coordination: Regardless of state, one of the most important steps in your surrogacy journey is coordinating with the hospital. Your attorney will help ensure delivery staff are briefed and ready to follow the legal instructions at birth. Spotlight on States Surrogacy Laws States like California, New York, Illinois, and Washington have built surrogacy laws with LGBTQ+ families in mind. They make it easier to establish legal parentage from the start—often without requiring the parents to appear in court. Automatic Recognition for Married Parents: If you're married at the time of your child’s birth through surrogacy, states like California and Illinois often recognize both spouses as legal parents by default. Pre-Birth Orders Simplify Everything: In California, New York, Washington, and Illinois, courts routinely issue pre-birth judgments. That means your legal parentage is settled before delivery, minimizing uncertainty. Gender-Neutral Birth Certificates: You can choose “Mother,” “Father,” or “Parent” on the birth certificate—based on your role and identity. Uniform Parentage Act (2020 Update): Several of these states have adopted updated versions of the Uniform Parentage Act, which account for surrogacy, donor conception, and non-traditional family structures. ✅ Checklist: Is Your Surrogacy Plan Legally Secure? ☐ Are you in a pre-birth order state, or will you need a post-birth court filing? ☐ Has your legal team coordinated with your delivery hospital? ☐ Will both intended parents be listed on the birth certificate? ☐ Is your parentage backed by a court-issued judgment or legal adoption? ☐ Do you understand your specific state’s surrogacy process? Clearing Up Common Surrogacy Misunderstandings Myth: The surrogate goes on the birth certificate. Not true in surrogacy-friendly states like California. With a valid pre-birth order, only the intended parents are listed—never the surrogate. Myth: Being genetically related guarantees legal rights. Genetics alone don’t establish legal rights. Without a court-issued parentage judgment or adoption, your legal connection may not hold up—especially in more restrictive states. Myth: All states treat surrogacy the same. They’re not. While some states, like New York or California, support pre-birth orders, others require extra steps after birth for non-genetic parents—or don’t formally recognize surrogacy at all. Myth: Married couples are automatically covered. Marriage helps, but it’s not a guarantee. Even for married couples, a legal judgment adds an extra layer of protection—especially when dealing with schools, travel, or cross-state documentation. Remaining Legal Gaps and Real-World Challenges Despite progress, intended parents still encounter obstacles: Some hospitals aren’t familiar with surrogacy-based parentage orders. Unmarried couples may need extra documentation to secure full recognition. Birth certificate policies can still vary state to state—even within the U.S. More Than Paper: The Emotional Impact of Legal Recognition For many same-sex parents, legal recognition isn’t just a formality—it’s a profound affirmation of their role in their child’s life. Validation: When your names appear on the birth certificate, your parenthood is affirmed—not just personally, but legally. Security: Whether it's for school enrollment, medical care, or family travel, a court-backed birth certificate removes doubt and protects your role. Final Thoughts and Next Steps Whether you're drafting your first surrogacy agreement or preparing for your child’s arrival, securing legal parentage is essential. A court order, a coordinated hospital plan, and a well-timed strategy can ensure your rights are protected from day one. Need help? Let Tsong Law Group guide your surrogacy journey—so your family is recognized everywhere that matters. Helpful Resources Contact Tsong Law Group – Licensed in CA, NY, IL, WA, AZ, OK. Vital Records Offices in your state for forms and guidance. Fellow of ACAL, two invitational organizations for ART attorneys. This article is for informational purposes only and does not constitute legal advice. It does not create an attorney-client relationship with the reader.

Like finding the right agency, finding the right lawyer for your surrogacy or egg or gamete donation contract can feel overwhelming. One way some people search for attorneys is to find the lowest price attorney. We discourage this method because the choice of your attorney requires research and consideration of factors other than just price. For surrogacy, a successful journey usually lasts a year or longer. In addition, having the parentage confirmed for the intended parents is one of the most important things that happen. It’s also important to understand why ART attorneys’ rates vary and what are actual differences between lawyers. Find a specialist in fertility law First, not all attorneys are specialists in the field. A non-specialist may charge less for their services, but you will lose out on possible expertise which matters when things don’t go as expected. An attorney in the practice of Assisted Reproductive Technology (ART) law should be part of many organizations to keep track of developments in the field of ART law. Tsong Law Group participates in many of these such as the American Bar Association ART Committee, SEEDS. Ralph Tsong is also an ART fellow of the Academy of California Adoption and ART Lawyers (ACAL). ACAL is an academy with high standards of admission, requiring 100 ART cases and approval from the general membership. Ralph Tsong has also spoken on ART law topics at many of these organizations, including the ABA, SEEDS, ACAL. Find a lawyer with years of experience Second, look at experience. Experience comes from years of practice. Ralph Tsong has been an attorney for 25 years, having first been licensed to practice in Illinois in 1999 after graduating from University of Chicago Law School, a top 3 law school. We have a multi-state practice with Ralph Tsong being licensed in California, Arizona and Washington state on top of Illinois, with his associate being licensed in Oklahoma and New York. Attorneys are priced higher for their years of experience in the field. Years of experience in multiple fields also create a multi-layered practice. Ralph’s experience with employment law allows him to address employment issues such as paid or unpaid leave and job protection and trial experience means he won’t be out of his element in court. Years of experience also provide connections to other attorneys should other legal needs arise. Having experience in thousands of cases in many jurisdictions allows Ralph to lead a team at Tsong Law Group. Read Reviews and look at awards Finally, look for actual client reviews and feedback on platforms like Google and Yelp. Reviews provide insight how prior clients feel about working with a firm. This is important in the research process so you can know if a choice is a right fit. Firms with more reviews are often more reputable and well known. A positively reviewed firm will make the legal journey easy to comprehend and a smooth experience. Tsong Law Group is one of the best reviewed law firms for fertility law with over 100 five-star reviews and counting across our platforms. Many reviewers specifically tell us they will return for their next journey, and they do. We are never short of positive reviews because client satisfaction is so important to us. We value creating a bond with our clients during their journey where we work on their cases providing accessibility, transparency, and efficiency. Also check for attorney awards and distinctions. Ralph has been selected as a Super Lawyer by Thomson Reuter in 2023, 2024 and 2025, and his associate Rainie is a Rising Star of Super Lawyers for the same period. Super Lawyers has a selective process that formally recognizes lawyers by factoring in peer evaluations and 12 indicators of professional achievement and is a distinction only 5% of lawyers have received. Conclusion Selecting your surrogacy lawyer is a significant decision and shouldn’t be primarily a cost decision. We recommend you look at whether they are a certified specialist in the field, have the right background and experience, and have positive feedback and reviews from their clients. Contact TLG now to explore these considerations further and discover how we can be a trusted guide on your unique journey. In addition, intended parents can sign up with Seedcoach for free for financial guidance for the rest of their surrogacy journey.

The 2024 presidential election was a pivotal event for the U.S., with former President Donald J. Trump winning back the White House as the 47th President and likely also gaining control of Congress with a conservative majority in the Supreme Court. Trump’s administration is likely to result in many changes to the United States at all levels. We will focus only on the changes we expect in key areas like healthcare, immigration, and reproductive rights and IVF, all of which can potentially affect intended parents in their surrogacy or fertility journeys. Here are some changes that the Trump administration may bring to the American legal system. Healthcare: In the world of surrogacy, the Affordable Care Act (“ACA”), which passed in 2010, has been helpful for intended parents and surrogates as open enrollment has allowed intended parents to choose surrogacy friendly policies for their surrogates, while the ACA also requires insurers to cover preexisting conditions, which include pregnancy. The Trump administration has not stated it will repeal ACA or coverage for preexisting conditions, one of the most popular features of the ACA. However, the campaign sought to “offer more choices” by allowing insurers to create “risk pools,” which lets them raise insurance premiums for groups deemed risky. Different risk pools would likely include surrogates or pregnant women, potentially causing a sharp increase in insurance premiums for pregnant surrogates. Some surrogates might lose access to affordable insurance coverage. Should this change happen, which we rate as likely, the intended parents will likely face higher insurance costs for surrogates who do not have surrogacy friendly insurance. Immigration: One of the biggest promises of the Trump campaign has been cracking down on immigration. For international intended parents, Trump threatens to issue an executive order on day 1 which will order agencies to deny citizenship to babies born in the US if no parent has a green card or is a citizen. Some international intended parents Trump previously made this threat during his first administration. In our opinion, while it is likely to occur, it is not likely to survive a court challenge. The Supreme Court ruled in United States v. Wong Kim Ark back in 1898 that birth right citizenship applied to children born in the United States and an act of Congress could not prohibit a child born by foreigners in the US from becoming a citizen. An executive order by Trump would have less authority than an act of Congress, so we rate it is as unlikely to have an impact. Furthermore, Trump campaigned on mass deportations of undocumented immigrants and removing temporary status from some immigrants. This is not likely to affect intended parents, but intended parents should know the immigration status of their surrogates. Intended parents should not choose surrogates who do not have legal status in the United States, or who may have tenuous status (asylum), and definitely avoid surrogates who have only temporary status or promise to come to the US to give birth. LGBTQ Parentage: Same-sex couples considering surrogacy may worry what impact a Trump administration or Project 2025 will have on their journey. While protections in areas of employment and education are likely targets, it is less clear what will happen with respect to parentage for LGBTQ couples. It is advisable to secure extra legal documentation to recognize parental rights and not rely on only a birth certificate. For LGBTQ parents, obtaining a judgment or confirmatory adoption can ensure their rights as parents will survive future laws or decisions. In surrogacy journeys, this is normally done, but in most gamete donation cases, there is no judgment. Talk to your lawyer about if you are an LGBTQ parent without a parentage judgment or adoption order. IVF and Embryo Status: During his campaign, Trump offered to make IVF free to Americans with little detail on who would qualify, how it would be paid, or what services would be covered. At this point, this does not appear likely to be implemented. Earlier this year, Congress introduced a bill to establish a federal “Right to IVF,” which would protect individuals’ rights to decide disposition of their genetic material, but it failed to reach a vote in the Senate. With both the legislative and executive branches likely controlled by the Republican party, this bill has no hope of advancing. On the other hand, conservative groups who supported Trump such as the Heritage Foundation, support more regulations on the IVF industry and view the destruction of embryos as incompatible with their pro-life beliefs. As Trump has promised not to sign a federal abortion ban, changes may occur mostly at the state level, as courts interpret laws that define life beginning at conception with no exception for IVF. Intended parents might wish to reconsider where they store their embryos, potentially moving embryos to states that do not have laws that treat embryos as persons. Conclusion: In conclusion, this election will have many consequences, but the consequences for those pursuing third party reproductive journeys will not be immediate for most. A Trump executive order on birthright citizenship appears to be the most likely to have an immediate impact but it is also likely to be suspended while it is challenged in court. We will have specific advice for international intended parents if it is not immediately suspended. If you are considering surrogacy as intended parents, or a potential surrogate, consulting with a surrogacy lawyer is a good place to start. Especially in light of these potential new policies and a shift in leadership, the parties need an attorney who is resourceful and well-versed in the law. 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.

In Illinois, there is a specific legal process to establish a parent-child relationship when using a gestational surrogate for childbirth. It differs from the other states we have covered like California and Washington. The Illinois Gestational Surrogacy Act, the Illinois Parentage Act of 2015, the Illinois Vital Records Act, and the Illinois Vital Records Code provides a means to bypass courts completely. Most intended parents will not need a court order in Illinois and can use the certification process to place their names on the original birth certificate of the child. A few things to note: Illinois requires that at least one of the intended parents must be a biological parent. Illinois also requires the attorneys certify that the requirements for surrogacy in Illinois were complied with. What to do? When the surrogate is pregnant, usually around 16 weeks or later, one attorney will begin preparing the Illinois certifications for the parties to sign. Legal representation for both the intended parents and gestational surrogate is required at the contract stage, and both attorneys must sign separate certified statements. All involved parties, including spouses/partners, must sign certified statements consenting to the intended parents’ parentage. Also, a licensed physician licensed in the state in which the egg was inseminated or the embryo was transferred, must attest that the child being carried by the gestational carrier is the biological child of the intended mother and/or father, and that it is not the biological child of the gestational carrier. This physician is usually the IVF physician that did the transfer, since they would have knowledge of these facts. Previously Illinois had extra steps for physicians licensed outside of Illinois, but they now accept out-of-state physicians’ certifications. These certified statements are published by the Illinois Department of Public Health (IDPH) and can be found on their website. Illinois requires that original copies of the certified statements be delivered to the hospital’s director of medical records before the child is born. It is a good idea to have each person sign multiple copies of the certified statements in case one or more copies is lost. What information is needed? Illinois requires less information for their PBO process than Washington or California. Their forms require full names of all parties, including names before marriage, and addresses of GC and IPs. The signing physician will need to list their medical license number and location of IVF clinic. Both attorneys will list who they are representing and their state bar number. They will need to include their office address and contact number. It is important to remember that Illinois requires two witnesses for the signing process. No notarized statements are required, but the witnesses should be over the age of 18 and not a party to the agreement. Next Steps Illinois does not charge a filing fee for certified statements. This is drastically different from other states with a court process. Once all the certified statements are signed and returned to the attorney who prepared them, a copy will be either mailed or emailed to the Illinois Department of Public Health. The gestational surrogate will be provided with an original copy of the statements to bring to the hospital in case the hospital loses their original copy. The hospital will mail these original statements to the Department of Public Health with the birth certificate worksheet. If the birth occurs in a different Illinois hospital than originally planned, it is crucial to inform the birth clerk about the surrogate parentage statements. If the birth does not occur in Illinois, then the certified statements will have no effect. They will only be valid if the birth occurs in Illinois. If you need help with a surrogacy journey in Illinois, please contact Tsong Law Group. We are licensed in Illinois and recognized as an ACAL fellow in the field of surrogacy and other ART arrangements and will ensure the protection of your rights and interests.

A fresh egg donation cycle has several steps: the match between intended parents and donor; donor’s medical screening and approval by the IVF clinic; donor’s psychological clearance; donor’s genetic screening; and finally, the legal stage where legal clearance is issued. Like our recent blogs discussing the legal stage of surrogacy from the perspective of surrogates and intended parents, the legal stage for egg donation is important to establish clear rights and obligations for all parties. From choosing the right attorney to contract review to obtaining legal clearance, here's what you can expect during the legal phase of egg donation: Choosing the Right Attorney. The legal stage consists of each of the parties, the intended parents or recipients, and the egg donor (and spouse if she has one) choosing and signing on with their own lawyer. Both parties will have separate legal representation throughout the egg donation process. The legal costs of retaining an attorney are covered by the IPs. It is crucial to select an attorney experienced in drafting egg donation agreements. In FAQ #27, we answer whether an attorney for the egg donor can really represent them properly if their attorney fees are paid for by intended parents. Representation Agreement. Once selected, the lawyer will send the party a representation agreement or letter, which will explain what the scope of services the lawyer is providing. Both the egg donor and the IP will sign the representation agreement with their respective attorneys. Note that this is not the egg donation agreement, but the agreement to agree to representation. Drafting the Egg Donation Agreement. The lawyer for the intended parents will usually draft the egg donation agreement based on the information the agency or intended parents have given them. There are varying levels of disclosure in these agreements, ranging from anonymous to disclosed, where parties may know each other's identities. The lawyer for the egg donor usually reviews the contract with the donor. In some cases, the contract may be pre-drafted and the parties review and revise them separately. Reviewing the Egg Donation Agreement. Schedule a review appointment with your attorney to go through the egg donation agreement thoroughly. Read the egg donation agreement beforehand because the review will not be a word for word reading. Make sure your spouse is also present for the review if they signed the representation agreement, as they will be a party to the agreement. This is the time to address any questions or suggest changes. Negotiating and Finalizing. Once you approve the redline your attorney sends you after your review, they will present the redline to the other side’s attorney and the negotitaion begins. After both parties agree to any redlines, a final egg donation agreement will then be circulated for signing. Signing the Agreement. In most cases, egg donation agreements do not require notarization for signatures. Some will choose to notarize if they want to verify the identity of the person signing. Notarizing a contract may be required in some states, or it may be the preference of one of the parties. The attorney may send you a PDF for printing or which can be electronically signed if the contract is not notarized. Issuing of Legal Clearance. Once both parties have signed, the intended parents’ attorney will issue a legal clearance letter to the clinic which allows the retrieval procedure to be scheduled and begin. If you are looking to become a egg donor or intended parent through egg donation, have an experienced attorney guide you through your contract protect your rights. Our attorneys are licensed in California, New York, Illinois, Washington, Arizona, and Oklahoma, and recognized as a fellow of the ACAL. Reach out today for our help in the legal stage of your egg donation journey.

At first blush, the women married to service members, or even service members themselves may look like ideal surrogacy candidates. Information on the internet suggests active duty military insurance, Tricare, is surrogacy friendly insurance. This information is misleading, and it is our hope to correct this. We interviewed Jennifer White, agency owner of Bright Future Families, co-host of the podcast I Want to Put a Baby in You, and military wife of 25 years, who is an expert in interpreting Tricare policies when it comes to surrogacy. Q: Can you tell us about your background and expertise in military healthcare and surrogacy? A: I am married to an active-duty military member for 25 years, so I've personally experienced the Tricare system extensively. I worked for third-party collections on a military base, which gave me insight into how reimbursements are handled. I also run a surrogacy matching program and have managed many cases involving military families. Q: What are the main concerns about using Tricare for surrogacy arrangements? A: The biggest issue is Tricare's ambiguous language regarding reimbursement. Their policy states they have the right to "reasonable reimbursement," but there's no definition of what's reasonable, and there's no time frame specified for how long they have to seek reimbursement. For surrogates, this creates a huge risk because the medical bills are in their name. Q: So a surrogate could be liable for costs years after the surrogacy? A: Exactly. I've seen cases where Tricare has come back after people many years later. An important perspective I gained when my husband retired was that they held his final month's pay pending an audit of all 25 years of his service. So theoretically, a young surrogate could go through an entire military career, and during retirement processing, Tricare could come back and say she owes money from that surrogacy. Q: What does it mean when Tricare says they "pay second" for services? A: By law, Tricare must always be the secondary payer when multiple insurances are involved. So, if you have another policy, like an ACA policy through the exchange, that policy must be primary, and Tricare would be secondary. Q: Can active-duty service members serve as surrogates? A: This is limited. Only Air Force and Space Force members can act as surrogates - it's prohibited in the Army, Navy, and Marine Corps under the UCMJ. Even for those who can, there are administrative requirements: They need commander approval Local JAG must approve They must stay on Tricare Prime They need special arrangements for off-base care Q: How does deployment affect military surrogates? A: For active-duty surrogates, there's no guarantee against deployment until pregnancy is confirmed. You could complete all medical screening and legal work, but until there's a confirmed pregnancy, the service member could still receive deployment orders. Once pregnant, they become non-deployable. Q: Are there any circumstances where using Tricare for surrogacy is acceptable? A: There is one exception: when both the surrogate and intended parents have Tricare coverage. In this specific scenario, there is a carve-out in Tricare's policies that makes it acceptable. Q: What do you recommend as best practices for surrogates who have Tricare? A: The best practice is to go into it with eyes wide open and know that you're going to need another policy to act as primary insurance. This could be an ACA policy or specialized surrogacy insurance. It would not be wise to depend on or lean on Tricare as your coverage. Q: Why are military spouses often considered good candidates for surrogacy? A: Military families typically have incredible support structures around them, even without nearby family. However, it's important to note that the old perception that they're "less expensive" because of Tricare insurance is problematic and risky. While military spouses often make wonderful surrogates due to their strong community connections and support systems, the insurance aspect should not be a factor in the decision. Q: Any final thoughts about Tricare and surrogacy? A: It's really quite straightforward: don't use Tricare as primary insurance for surrogacy. When nobody can tell you what "reasonable reimbursement" means, and there's no time limit on when they can seek that reimbursement, the risk is simply too high for any military family to take on. Conclusion: Navigating military surrogacy and Tricare coverage isn't just complicated – it can be potentially risky. The key takeaway from this discussion is clear: Tricare should not be relied upon for surrogacy arrangements. The complete lack of a statute of limitation for reimbursement claims, the undefined "reasonable reimbursement" standards, compared to the short duration of an escrow account remaining open mean that surrogates could be responsible for unpaid medical bills. The only exception is when both intended parents and surrogate are military families with Tricare coverage. If you don’t know if your surrogate’s insurance policy covers surrogacy, consulting with a licensed insurance broker and 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. Contact us now.

Egg is a satirical drama written by Risa Mickenberg in 2018. The film stars Christina Hendricks (Mad Men), Alysia Reiner (Orange is the New Black), David Alan Basche, Anna Camp and Gbenga Akinnagbe (The Wire). The movie portrays the interaction between two old friends, Tina (Alysia Reiner) and Karen (Christina Hendricks), who have starkly different views on motherhood during a get-together at Tina’s house. Upon Karen's arrival, Tina is surprised by how far along her friend’s pregnancy is, sparking a conversation about pregnancy and motherhood. Tina eventually reveals that she, too, is 'pregnant' but through a surrogate, which shocks her more conservative friend, Karen, and leads to a clash over what it truly means to be a mother. While their husbands, Wayne (Gbenga Akinnagbe) and Don (David Alan Basche), leave to comfort Tina's surrogate, Kiki (Anna Camp), Tina and Karen bond over heart-to-heart conversations about their marriages. However, tensions escalate when the husbands return with Kiki, and Wayne states that the baby belongs to him and Kiki, pushing the conflict to its peak. In the end, we can safely assume that Tina did not get to be the mother of the child. Several red flags appear when they describe Kiki, the surrogate. Kiki is Wayne’s former employee who leads a carefree and unconventional lifestyle, lacks stable income, is dependent on her boyfriend for housing, and has not had a baby before. Kiki is very impulsive, even stating that she would abort the baby if her boyfriend would take her back. She frequently oversteps her boundaries – maintaining constant direct contact with Tina and Wayne, being flirtatious with Wayne and Don, even asking Wayne to move in with her. All of these issues ultimately led to the breaking point for Tina and Wayne, and Wayne leaving in frustration. We will not spoil what happens next, though the reader may be able to guess. Realism in Surrogacy We hear of surrogacy journeys like this, ones undertaken between friends without legal contracts. So as strange as the match may be and the conscious choice of the intended parents not to use lawyers, this is not unrealistic. Tina’s rant on motherhood might be uncommon among any intended parent, but the trauma she and Wayne have from their child-loss and the pressure to have children is realistic. How Karen and Don react to the surrogacy is realistic depiction of negative reactions or stereotypes people may have about surrogacy. Legal Aspects This is a gestational surrogacy not a traditional surrogacy, and the embryo is created from both Tina and Wayne’s gametes. New York, where this arrangement takes place, passed a law regulating gestational surrogacy in 2020. Prior to that, surrogacy was illegal in New York and the contracts were voidable. Tina explains early on that they rejected lawyers and the idea of a nuclear family: Wayne would be a parent, and confusingly, so would Kiki, and Tina’s role was meant to be determined later. Ideally, after a medical and psychological screening, all surrogacy arrangements should go through the legal contract stage to protect the expectations of both the surrogate and the intended parents, where both parties are represented separately. The agreement typically outlines that, other than medical conditions that pose a threat to the surrogate’s life, all medical decisions regarding the baby are to be made by the intended parents. Furthermore, such agreements clearly establish that the surrogate is only the carrier and has no parental rights. Had Tina and Wayne entered into their surrogacy arrangement with legal counsel, their lawyer would have ensured paperwork that would establish who the legal parents were, even in the event of death or divorce. Surrogacy is a long and complex journey and many things can go wrong, even in altruistic journeys between friends and family. Lawyers are there to protect the interests of both parties. Unfortunately Tina did not use a lawyer and had to pay the ultimate price in the event of a divorce from Wayne. Conclusion EGG is currently streaming on Peacock. It is kind of like watching a three act play rather than a movie taking place in a single day. It’s a worthwhile watch if you are looking for a realistic surrogacy related drama at only 90 minutes long. If you are considering surrogacy as intended parents, or a potential surrogate, consulting with a surrogacy lawyer is a good place to start. Even bohemian artists should not skip out on the legal stage. 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.

Gas prices have spiked dramatically in recent weeks. The national average for gas crossed $4.00 per gallon at the end of March 2026, up more than a dollar from just one month earlier. At the time of this writing, there’s little indication how long gas prices will continue increasing, will remain high, or may return to lower prices. For surrogates who are driving to frequent medical appointments throughout their journey, the cost of fuel is not a small detail. It is a real, recurring expense that deserves consideration. Here is what surrogacy contracts typically include when it comes to mileage and gas, and why both surrogates and intended parents should think carefully about whether the terms are fair. What Is Typical in the Contract For a more in-depth guide read: What is in a Surrogacy Agreement Most surrogacy contracts include a mileage reimbursement provision that covers driving to surrogacy-related appointments. These include IVF clinic visits, monitoring appointments, embryo transfers, OB checkups, lab work, and any other medical visits tied to the pregnancy. The reimbursement usually works one of two ways. Either the contract sets a flat rate per mile (for example, $0.60 per mile), or it ties the rate to the current IRS standard mileage rate, which for 2026 is $0.725 per mile. The key difference is that contracts pegged to the IRS rate will automatically adjust year to year, and sometimes will adjust midyear for especially sharp increases in gas (the last time being in 2022), while a flat rate stays fixed for the life of the contract. There is also typically a distance threshold. Mileage reimbursement only kicks in when the round-trip distance exceeds a set number of miles, often 51, 76, or 101 miles round trip depending benefit package. Anything under that threshold is expected to be covered by the surrogate's monthly allowance, which is a separate recurring payment (usually $200 or more per month) meant to offset day-to-day costs that are not specifically covered like your notary fee, short drives, parking, sometimes even lost wages or childcare for routine appointments. One principle that is generally followed in the surrogacy industry is the surrogate should not be paying out of pocket for travel related to the surrogacy. The monthly allowance is intended to cover routine, shorter-distance driving. It is not a bonus. It is there so the surrogate is not absorbing costs that are part of the journey. What Surrogates Should Consider About Mileage Surrogates should map out the full picture of where they will be driving before they sign a contract. The journey involves multiple locations, and they may not all be close to home. During the early stages, the surrogate will travel to the IVF clinic for screening, the embryo transfer, and follow-up monitoring. This clinic may or may not be near her home. If it is too far, the After the surrogate "graduates" from the fertility clinic (typically around 8 to 12 weeks), she will transition to her own obstetrician for the remainder of the pregnancy. That means two or three potential locations, each at a different distance. A surrogate whose IVF clinic is 40 miles round trip might technically fall below the mileage threshold, but if she is driving there two to three times a week for appointments, gas adds up fast. The first time the surrogate can consider the mileage benefit is the time she signs her benefit package. This is done before matching, so that intended parents will have a good idea of what to expect for the cost of their journey. Unfortunately, the distance to and from the clinic or monitoring clinic will not be known at this time as the clinic will not be known until a match occurs. However, surrogates could be aware of higher mileage thresholds (100 miles or more) and look at the monthly allowance to see if it is above or at market rates, and if not request an adjustment to their package. The next time to evaluate this is during matching, before acceptance of the match. When presented with a match, the surrogate can try to calculate the distance from home or work to the intended parents’ IVF clinic, or request information about where a monitoring clinic would be. This gives them a chance to request adjusting the mileage threshold as a condition to agreeing to the match. The last time will be at the legal stage, when the contract is drafted and negotiated. If information about the clinic wasn’t known until legal, surrogates can now calculate their expected driving distances for each phase of the journey and raise the issue with their attorney if the math does not work. Note that if intended parents are in an all-inclusive surrogacy package, the surrogate may not be able to adjust mileage during the legal stage. While it is possible to amend the surrogacy agreement once it is signed, this is normally not done for a benefit such as mileage unless an error was made in drafting. What Intended Parents Should Know The core principle is straightforward: a surrogate should not be financially burdened by travel costs that exist because of the surrogacy. If the monthly allowance does not realistically cover the surrogate's shorter-distance driving given current gas prices, that is a gap worth addressing during contract negotiations. Intended parents benefit from getting ahead of this issue. A surrogate who feels financially supported is less likely to experience stress or friction during the journey. A small adjustment, like lowering the mileage threshold, pegging the rate to the IRS standard, or adding a flat rate to each IVF appointment, can go a long way as a goodwill gesture that costs relatively little in the overall scope of a surrogacy budget. Is Mileage Reimbursement Negotiable? While both surrogates and intended parents are discouraged by agencies from changing the benefit package that is agreed to at the time of match, when there are unforeseen changes to the parties’ expectations, a term could become subject to negotiation. For example, if a gestational carrier had childcare taken care of prior to the match, but circumstances changed that the family member or ex-spouse who used to provide babysitting for free no longer would provide such childcare, then childcare expenses might be now up for negotiation. So too, mileage and travel reimbursements could be negotiable if even the IRS business rate seems behind with gas prices, then both parties should expect that there may be changes to this often overlooked contract term. The key levers include the per-mile rate, the round-trip distance threshold, and whether the contract includes any language to account for rising fuel costs. A flat rate of $0.60 per mile written today may not feel fair six months into a pregnancy if gas prices continue to climb. Contracts tied to the IRS rate offer built-in protection against inflation since the IRS adjusts its rate annually based on vehicle operating costs. Both sides should also consider how the monthly allowance interacts with the mileage provision. If the surrogate lives 30 miles from her monitoring clinic and drives there three times a week, that is 240 miles a week that falls below a 75 mile roundtrip thresholds. At $4 or even $6 or more a gallon, gas expenses could eat away at the monthly allowance leaving nothing for childcare or lost wages to cover appointments. The contract should account for this reality. Protect Yourself with the Right Legal Guidance Whether you are an intended parent building your budget or a surrogate evaluating a match, the mileage and gas provisions in your contract matter more than ever. A surrogacy attorney can help you negotiate terms that reflect current costs and protect both parties throughout the journey. As a member of the Academy of California Adoption-ART Lawyers (ACAL), Tsong Law Group brings extensive expertise to surrogacy contract drafting and negotiation. We are licensed in California, New York, Illinois, Washington, Oklahoma, and Arizona. Contact us today to schedule a consultation.