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As adoption attorneys, we receive many questions from people looking to adopt children in the United States. Here are some which may be relevant to you: I have been taking care of a child for some time. The parents are out of the picture. Can I adopt the child? Answer: It depends. If you are a relative of the child, you are eligible to adopt the child. If you are not related to the child, you can only adopt the child if (1) you either have the consent of at least one parent or (2) a guardianship has been in place for a year. Parental rights are protected rights. They can only be ended by a petition to terminate parental rights, which is done either by the County or by an individual if they are a guardian, a stepparent, or a relative. I want to adopt a niece or nephew who doesn't have a green card. Will doing so get the child a green card? Answer: It depends largely on the country and the age of the child. If the child is a citizen of a country that is a signatory to the Hague Convention on Adoption, then probably not. You will need to adopt the child in their home country and likely use an adoption agency licensed in that country to actually confer legal status on the child. If the child's home country is not a Hague Convention signatory, the child must be fully adopted before age 16 by a green card or citizen and the adopting individual must have legal and physical custody of the child for two years as adjudicated by a court. When adopting a child from another country, it is a good idea to work with an immigration attorney to make sure the adoption will satisfy USCIS. There are other means to give status to the child who is in the United States if the child is abandoned, neglected or abused in their home country. We can help with that process. How long does an adoption take? Answer: An adoption will usually take at least 6 months, usually nine months to a year. This is the adoptive parents must complete a home study before the adoption finalization hearing will be set. How much does an adoption cost? Answer: Legal fees will vary, but usually less than $5000. Home study fees depend on the type of adoption. A stepparent adoption a home study costs $700. A non-step parent adoption can cost up to $4500. Any adoption other than a stepparent adoption will be eligible for an adoption tax credit on your federal tax returns, currently over $13,000, and can be recouped over three years. So the adoption may end up not costing anything. What is the advantage of adopting a child I have been taking care of like a parent? You will have to answer this yourself, but the child will have a lot of advantages. 1. The child will have the stability of having a parent and they will know the difference whether you are legally a parent or not from seeing how schools and adults act. 2. If something happens to you, the child will be able to receive your estate if you die without a will, and your social security benefits. 3. There are many decisions and privileges that a parent has which a caretaker doesn't. Making medical decisions, enrolling in school, receiving government benefits, visiting in the hospital, having the authority to do things such as apply for a passport or travel abroad without a travel authorization. What if I don't have permanent residency or am not a citizen? There is no requirement you have any particular legal immigration status in the United States to adopt. The agency conducting a home study will not inquire or report your immigration status. There will be a criminal background check as part of your home study and your home will be reviewed to make sure that the living environment is safe and adequate, so if these areas are deficient, you may not be eligible to adopt. Have another question or want clarification? Call us and schedule a consultation. This article is for informational purposes only and does not constitute legal advice, or create an attorney-client relationship.

What Does “Parent/Guardian” Mean? If you have ever signed for your child, you have probably noticed under the signature line it says “parent/guardian,” but have you put any thought into what it means to be a “guardian”? In general, someone’s guardian is the person who looks after their health, safety, and welfare. Legally, a child’s guardian is someone who has an order from the court granting him/her guardianship of that child. A guardianship grants the adult physical and legal custody of the child. What a Guardianship Gives a Guardian the Authority to Do This means that the child is to live with the guardian and the guardian is able to make medical and educational decisions on behalf of the child. A child’s guardian is responsible for providing the child with food, clothing shelter, medical care, and education. A child can have multiple guardians, and the children’s parents remain the child’s parents, but their rights of custody are suspended by the guardianship. This is different from adoption, where parental rights are terminated. Why Someone Would Seek Guardianship Now that you know what guardianship is, let’s get into the reasons why someone would want to obtain one. First, anyone who would like to petition for the appointment of guardianship of a child should have a good reason for doing so. The judge who hears the case will be making his/her decision based on the best interest of the child. If guardianship is not necessary or convenient to the child, the judge will not grant the order. So what are some good reasons for guardianship? Common Reasons Courts Grant Guardianship The child’s parents are unable or unwilling to take care of the child; The child’s parents are harmful to the child; The child’s parents cannot provide the child with adequate food, shelter, and medical care; The child’s parents are incarcerated, out of the country for an extended period of time, or have passed away. A guardianship of the estate can be obtained if the minor owns or is about to receive property, and a parent may act as guardian of the estate. When a parent is terminally ill and remains a guardian as well. This is called successor guardianship. When a Guardianship Can Be Denied or Contested There could be other reasons for guardianship. If the prospective guardian’s request for an appointment does not show that it is not necessary or convenient for the minor’s benefit, then the guardianship would be denied. Note that parents can consent to the appointment of a guardian, or they may contest a guardianship. If one of the parents contest guardianship, the guardianship will be granted only if the court finds that parental custody would be detrimental to the minor’s interest and the guardianship is in the minor’s best interest. But if the proposed guardian has acted as a stable parent for a significant time period, then a presumption is in favor of the proposed guardian. Notice Requirements for Parents and Relatives Parents are entitled to receive notice of a petition to appoint a guardian and the hearing date, and the court will only excuse notice to the parent with a showing that efforts were made to contact the parents. Other second degree relatives such as uncles, aunts, grandparents and siblings, have a right to receive notice of the guardianship hearing as well. Investigation and Interviews in Guardianship Cases A proposed guardian will be subject to interview by either the Department of Children and Family Services if not related to the child, or the court probate investigator if they are related to the child. How Our Office Can Help If you or someone you know is interested in becoming the guardian of a child, our office can help. Please call us to make an appointment. . . . Tsong Law Group, A.P.C. 562-274-7807 info@tsonglaw.com This article is for informational purposes only. It is not intended to be legal or medical advice and does not create an attorney-client relationship.

California is one of a few states in the United States that recognizes surrogacy agreements. What a Surrogacy Agreement Does A surrogacy agreement is between the intended parents and the surrogate. Under the agreement, the surrogate agrees to be implanted with one or more frozen embryos and carry the fetus (or multiples) to gestation, in exchange for compensation. Under the agreement, the intended parents are recognized as the natural parents of the child, and the surrogate has no parental rights to the child. This is the case even if the surrogate carries a child that is not biologically related to the intended parents. Johnson v. Calvert and California’s Early Recognition California first recognized surrogacy agreements in 1993, after the case of Johnson v. Calvert . There, the intended parents, who had their own embryo implanted into the surrogate, and the surrogate had a falling out with the surrogate refusing to give the child to the intended parents until she was paid. The intended parents filed a maternity suit to name them as parents. The California Supreme Court held that the issue of maternity turned on the intention of the parties in creating the surrogacy agreement. The contract was held to be enforceable and not against public policy. This case also makes clear that if the intended parents attempt to back out of a valid surrogacy agreement part-way through, their legal status as the natural parents remains intact. Why California Is Considered Surrogacy-Friendly Because of the clear recognition of parental rights to the intended parents in a surrogacy agreement, California has been one of the most favorable states for surrogacy arrangements. California Family Code Updates on Gestational Carrier Agreements California’s Family Code was recently amended to recognize “assisted reproductive agreements for gestational carriers.” Under the law, both the surrogate and the intended parent must be represented by separate licensed attorneys of their choosing. The surrogate should not undergo the embryo transfer until the agreement is in place and signed. The good news is surrogacy contracts are presumptively valid under California law. How Tsong Law Group Can Help Tsong Law Group is knowledgeable in the drafting and reviewing of surrogacy contracts. If you don’t know where to start, we have contacts to refer hopeful parents to for the assisted reproductive procedures and to find surrogate carriers. If you are looking to refer a surrogate client to an attorney, we can represent a surrogate carrier competently and diligently.

If you are considering contracting with a gestational surrogate to grow your family you probably have a lot of questions. We will try to answer one of the big questions: what should I be looking for in a surrogate? Choosing the Right Surrogate Takes More Than Willingness Choosing the right surrogate for you requires a lot of thinking and many steps. It is not as easy as finding a woman who is able to reproduce and willing to carry your baby. There are a lot of other factors to consider. The right surrogacy agency will screen your potential surrogate to make sure she has all the ideal requirements. If you do it yourself, here are some basic considerations. Rapport and Communication One would be to have a good rapport as you will want to communicate regularly. Characteristics that should not matter are race, physical appearance and height. None of these physical attributes will affect the gestational carrier’s ability to carry your child. Reproductive History and Relationship With Her Child Another thing that is very important to ask a potential surrogate about is her reproductive history. Has she been pregnant before? Is she currently raising that child? The answer to both of these should be yes. A gestational surrogate should have experience with pregnancy so that she is comfortable being pregnant again. She should also express that she enjoys the feeling of being pregnant and has not had any previous pregnancy complications. Asking her if she is currently raising her birth child is important for many Intended Parents, so they can find out if she has a strong relationship with her birth child and is not using surrogacy as a way to bond with another child. Age The second thing that plays a big role in a potential surrogate’s eligibility is age. As many of us know, age is an important factor when talking about our fertility. There are specific ages that science suggests are the best ages to get pregnant. These ages usually fall somewhere in our 20s and 30s. While fertility declines in the thirties, for surrogates, factors such as embryo quality may matter more. For this reason, most Intended Parents seek to find a gestational surrogate that is under the age of 40. Physical Health, BMI, and Screening Other general things to look for are women who are physically healthy, and preferably with a BMI under 30. An obese gestational surrogate will have lower fertility and it may be dangerous to undergo the procedure. She will go through a physical health screening performed by a licensed physician. Financial Stability and Public Benefits Intended Parents should also ask questions about her current financial situation. It is recommended that a gestational surrogate has a steady income and is not on public assistance. A surrogate on public assistance will likely be ineligible after receiving the compensation for surrogacy, and if she continues to use public benefits, it may constitute fraud. Criminal Record and Mental Health Screening A gestational surrogate preferably shouldn’t have a criminal record. As part of the process, she will go through a mental health screening performed by a licensed psychologist. A potential surrogate will need to receive clearance from a licensed psychologist, saying that she is capable of taking part in the surrogacy process. Please note that this article is for informational purposes only, not legal advice, and not intended to create an attorney-client relationship.

I have referred to surrogacy as one thing, but there are two types of surrogacy in California. “Traditional surrogacy” or “AI (artificial insemination) surrogacy” involves situations where the woman agrees to carry the child and also is the egg donor, and the sperm is provided by the intended father or by a donor. ( Family Code section 7960 .) “Gestational surrogacy” refers to surrogacy in which a woman who is not an intended parent agrees to gestate an embryo that is genetically unrelated to her. Gestational Surrogacy Contracts vs. Traditional Surrogacy Contracts While the California Supreme Court recognized in Johnson v. Calvert that a contract for gestational surrogacy was valid and that a gestational surrogate had no parental rights to the child after it is born, contracts for traditional surrogacy which assign parentage to an intended mother or father have been found unenforceable in California because it contradicts existing law on parentage. (See In re Marriage of Moschetta .) The surrogate carrier will be considered the natural mother of the child and she will have to consent to a stepparent adoption by the intended parent in order to relinquish her rights. Financial Accessibility and the Moschetta Court’s Observation This is unfortunate because the traditional surrogacy route is much more financially accessible to couples having difficulty conceiving than IVF, retrieving the embryo, freezing, transporting, and implanting the embryo in the womb of the gestational surrogate. The court of appeals in Moschetta observed: "Infertile couples who can afford the high-tech solution of in vitro fertilization and embryo implantation in another woman’s womb can be reasonably assured of being judged the legal parents of the child, even if the surrogate reneges on her agreement. Couples who cannot afford in-vitro fertilization and embryo implantation, or who resort to traditional surrogacy because the female does not have eggs suitable for in vitro fertilization, have no assurance their intentions will be honored in a court of law. For them and the child, biology is destiny." Legislative Gap in California Although the California legislature has defined traditional surrogacy in the Family Code, it has yet to enact law weighing in on court rulings which do not recognize traditional surrogacy. Out-of-State Traditional Surrogacy and Stepparent Adoption It can be noted that that there are a small number of states where a traditional surrogacy contract may be legally recognized. For example, Florida allows pre-adoption contracts in cases of artificial insemination without reference to traditional surrogacy. However, if you bring a child conceived through traditional surrogacy born in another state to California without an adoption order that can be recognized by California courts, you may run the risk of the traditional surrogate asserting or holding parental rights. As I wrote in the prior blog post “ Same sex couples should consider stepparent adoption for children conceived by ART ” a finalized stepparent adoption can eliminate any doubts as to parentage of a child conceived through artificial insemination where the natural mother is not an intended parent. If you have had a child conceived through traditional surrogacy, schedule an consultation with my office at Adoption California to determine if a stepparent adoption is your next step.

Interested in being an Egg Donor? Curious about what being an Egg Donor entails? If you answered yes to any of those two questions then continue reading below! What is the egg donation process like? Becoming an egg donor is a big decision that will leave an impact on both the egg donor and the intended parents. Egg donors have different reasons for making their decision; for some it’s about making a difference in someone else’s life, while for others the financial compensation might be the most appealing part. Whatever the reason, egg donation is a beautiful way to help others form a family. Asian egg donors are particularly sought after due to a large number of international Asian intended parents hoping to raise a child of the same racial background. The Application Process The egg donation process involves many steps and can last several months or even years from the initial application. The first step in the process is to apply to be an egg donor. Potential egg donors should reach out to fertility clinics and/or egg donation agencies to ask about their application process. A majority of facilities will have online applications available for those who are interested in becoming egg donors. The donor applications typically ask the potential donor to provide information such as her age, BMI, and details about her overall health. The ideal egg donor will be between the ages of 19 and 29, have a healthy body mass index (BMI), and have no serious health problems. Following the application, selected applicants will have a more detailed assessment done by an assigned case worker or nurse, depending on the type of facility they applied to. It is during this assessment that donors are asked about any drug or alcohol abuse, reproductive history, and any criminal history. This information is used to determine egg donor eligibility. If an applicant is eligible, the facility will start to create her egg donor profile that will be viewed by potential intended parent matches. The donor’s profile will include information such as her eye color, hair color, height, educational background, and other characteristics meant to help prospective parents learn more about her. The Legal Process Once the clinic or agency has a match with intended parents to the egg donor, a legal contract will be drawn up between the two parties. This legal contract will ensure that the intended parents have full ownership of the eggs and custody of any children that born from the eggs, and the egg donor has no responsibility, custody or visitation of the children or control over the eggs retrieved during the process. In many cases, the actual identity of the egg donor remains anonymous, as does the intended parents’ identity. However, the contracts often allow the egg donor to be notified if a child is born from the eggs, and may allow the agency to contact the egg donor if medical information is needed from the egg donor or if there is a hereditary disease that the egg donor may be in a position to assist treatment. Medical Procedure Prior to proceeding, a psychologist or social worker will psychologically screen the donor and a medical clinic will make sure that the donor is tested for infectious diseases, and prepare the donor for the egg retrieval. The egg donor will need to use self-injectable hormonal medicine to help her ovaries create plenty of eggs for optimal chances of healthy egg retrieval. When the doctor believes the donor’s eggs are ready to be retrieved, he or she will surgically remove the eggs from her ovaries. The surgery involves a conscious sedative and typically only lasts a few minutes but the donor will need to rest and recover for a couple of hours. The eggs will typically be frozen and stored at the intended parents’ expense for later use. Compensation In the past, the American Society of Reproductive Medicine guidelines recommended egg donors be compensated no more than $10,000 per egg retrieval cycle. This guidance has been retracted. Repeat or highly educated donors often command more than $10,000. The egg donor will usually receive some medical insurance to cover the egg donation process. Compensation may be paid at the end of the egg retrieval, or sometimes in multiple parts. The egg donor may also receive travel expenses, lost wages, and dropped cycle fees. Can someone donate eggs if they are not authorized to work in the US? The answer is unclear. Income from an egg donor contract has been found as taxable, and if you do not have work authorization, you may be violating the terms of your visa. You should talk with an immigration attorney or a tax specialist. The information provided is intended to give a general idea of what the egg donation process is like. A woman’s experience will vary depending on and the facility she chooses to work with and her personal circumstances. A woman considering donating her eggs should read about the risks and side effects of egg donation, or consult with her doctor. What about private egg donation? Sometimes a friend or a family member will help someone experiencing infertility with an egg donation. This is sometimes called an altruistic egg donation. No egg donor agency needs to be involved in an altruistic egg donation, however, a legal contract between the parties is required. Tsong Law Group handles the drafting of egg donor contracts and representation of intended parents and of egg donors. Interested? If you or someone you know needs a recommendation to an egg donor agency, you can contact Tsong Law Group for a free referral. Simply fill out the form on our contact page! This article is for informational purposes only. It is not intended to be legal or medical advice and does not create an attorney-client relationship.

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 Fellows of the Academy of Adoption & Assisted Reproduction Attorneys (AAAA) and 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.

One of the states that is a subject of a minor debate in the surrogacy world is the state of surrogacy law in Arizona. At first blush, Arizona looks very unfriendly to surrogacy. In practice, with the right attorneys who are experienced with surrogacy in Arizona, it is a different story. Arizona still has a statute on the books that says: A. No person may enter into, induce, arrange, procure or otherwise assist in the formation of a surrogate parentage contract. B. A surrogate is the legal mother of a child born as a result of a surrogate parentage contract and is entitled to custody of that child. This particular statute was found to be unconstitutional by the Arizona Supreme Court in Soos v. Superior Court on equal protection grounds. The Court noted that while a man could challenge the parentage of the surrogate’s husband, a woman could not challenge the parentage of the surrogate. As a result, Arizona is a state with a law banning surrogacy on the books which is not enforced. While that might seem daunting, surrogacy matches frequently occur in Arizona, and it is one of the many states that Tsong Law Group practices in. It can be a popular state for intended parents due to its large metropolitan areas and proximity to California. Ideally, a surrogacy contract drafted involving an Arizona surrogate or intended parents will involve the choice of law of another state which has a friendly surrogacy statute such as California, Washington, or Illinois. The Arizona Vital Records office will recognize out-of-state judgments under Full Faith and Credit Clause, and most hospitals accepting prebirth orders from other states such as California. Alternately, the parties can file parentage actions in Arizona in which all parties agree to the parentage of the intended parents prior to birth similar to prebirth orders. With the right attorney guidance familiar with Arizona courts, hospitals, and vital records, Arizona becomes a viable option for intended parents and surrogates. As an Arizona licensed attorney, the Tsong Law Group can assist your surrogacy journey in Arizona, and advise whether another state’s law can be used for drafting the contract. If you need legal assistance in your surrogacy contract, 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 Academy of Adoption & Assisted Reproduction Attorneys (AAAA) and 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.

Becoming a surrogate is a remarkably selfless commitment. There’s no doubt that a surrogate’s compensation is one of the most crucial factors to consider in the contract stage. Aside from compensation, there are additional expenses that need to be paid for the surrogate, and one of the most important is reimbursement for lost wages. It is important to have a clear and concise agreement in place between all parties involved. Why are Surrogates Paid Lost Wages? Typically, working surrogates will be paid for lost wages by the intended parents for extended time off work due to their pregnancy. Unlike other benefits, the lost wages could vary from little to none, to unexpectedly high. This is because in gestational surrogacy arrangements, the surrogate is not supposed to pay money out of her pocket for the journey. The lost wages provisions are meant to make the surrogate whole if she misses work, and there is no way to predict in advance how much work a surrogate will miss due to pregnancy or after delivery. The lost wages provision typically covers periods of time where the surrogate is restricted to bedrest or has work restrictions that limit her activities because she is unable to work due to pregnancy and delivery. To claim, lost wages, a contract will usually require the following: 1. A doctor’s note that specifies the start and expected end date and nature of the work restrictions or bedrest. 2. Proof of employment at the time of the claim. 3. Multiple paystubs to demonstrate current rate of pay. What Are the Limitations On A Surrogate’s Lost Wages? During the pregnancy and before delivery, the parties usually do not have a cap on lost wages , and rarely will a surrogate agree to limit lost wages to a certain dollar amount. After delivery, it is standard for contracts to have a cap on the number of weeks of lost wages. In most cases, the limit for lost wages is 4-6 weeks post-delivery for a vaginal delivery and 6-8 weeks for a c-section. This number of weeks mirrors the time frame under the Family Medical Leave Act (FMLA). Some surrogates also negotiate to have lost wages for their medical appointments, while others have a monthly allowance that covers these lost wages. Meanwhile, for self-employed surrogates, lost wages are sometimes not included unless they can prove their earnings rate during the contract negotiation. Lost wages can either be gross or net wages. Sometimes the wages are limited to net wages (the gross wages after state and federal taxes , unemployment , and disability withholdings) as opposed to the gross wages, as this might be the amount the surrogate would have taken home had she worked. Others argue that gross wages are more appropriate since the surrogate may still be responsible for taxes on lost wages. In states where there is disability insurance coverage, the surrogate should be required to apply for disability insurance. What the disability insurance pays the surrogate directly will reduce her actual lost wages by as much as 60-65%. We have other blog articles about how surrogates can apply for disability insurance in California, Washington, and New York. If lost wages are expected to be large and there is sufficient time, consider applying for a short-term disability policy well in advance of the journey. A short-term disability policy may require being in effect 10 months or more before pregnancy is covered. Conclusion If you need help with a gestational surrogacy agreement, including understanding lost wages provisions, be sure to work with a surrogacy attorney who has experience with surrogacy laws and understanding lost wages in your state. The attorneys of Tsong Law Group are licensed in CA, NY, IL, WA, AZ, NY, OK. If you need assistance in one of these states, 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.