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"Our Father” is a Netflix original documentary film directed by Lucie Jourdan. It follows the story of the former fertility specialist Dr. Donald Cline who deceptively inseminated dozens of patients with his own sperm between 1979 and 1986. This documentary film raises the question about how the legal system views those seeking control over their own reproductive choices and restitution when that autonomy is violated. Synopsis of the film Our Father intercuts interviews with the siblings and Dr. Cline’s victims with re-enacted footage of some of their experiences. Although Dr. Cline was never interviewed, his courtroom testimony is recreated (or is shown). Dr. Cline’s acts began being discovered when Jacoba Ballard, one of the victims of Dr. Cline’s deceptive sperm donations, recalled how at an early age she thought she was adopted, as she had her blonde hair and bright blue eyes compared to her family’s dark-hair and dark-features. She learned at an early age she was conceived via a sperm donor, who was supposedly a resident-in-training who had donated only a few times. Once at home DNA testing became available, she set out to find her half-siblings. From there, her life changed after she learned that she had seven half-siblings. Jacoba later on reached out to her newfound family members. Researching the mystery of their shared relation, Jacoba and her siblings soon discovered with horror what their parents’ trusted doctor had done. The number of their confirmed siblings continued to grow to at least 94 as more people added their DNA to the database. While Dr. Cline never reveals his motivations, the documentary film suggests Dr. Cline may have been motivated by his interest in an extreme Christian sect called “Quiverfull,” where it encourages followers to reproduce as prolifically as possible to meet God’s mandate to “be fruitful and multiply” and Dr. Cline, in addition to engaging with patients and staff in prayer before treatments, had an affinity for the verse Jeremiah 1:5 (“Before I formed you in your mother’s womb I knew you”). What happened to Dr. Cline In 2017, a criminal investigation was launched when four of the "children" filed a complaint against Dr. Cline to Indiana's Attorney General. However, during that time, there is no law or legal structure in place which criminalizes the act of a doctor inseminating a patient with his own sperm. Therefore, he could not be criminally charged for his deceptive insemination. Cline was instead brought to trial facing two counts of felony obstruction of justice, for lying during the investigation. Despite pleading guilty to two felony counts of obstruction of justice, he received no jail time and only a one-year suspended sentence and a $500 fine. He also lost his medical license, but he had retired nearly a decade. Little is known about his whereabouts now, but he remains a free man. Legal Fallout Following the case of Dr. Cline, in 2019, Indianapolis enacted Senate Enrolled Act 174 which protects individuals and couples against fertility fraud and deception. The law makes it a level 6 felony if someone makes a misrepresentation involving a medical procedure, medical device or drug and human reproductive material. The law also creates a civil cause of action for fertility fraud, making it possible for victims to get reimbursed for the costs of the fertility treatment plus up to $10,000 in damages. The law will also affect health care providers who use their reproductive material without the donor’s consent, or if the doctor uses the sperm or eggs in a manner the donor didn’t sign off on. Recently, some victims/children of fertility fraud also spoke to AAAA surrogacy attorneys at the AAAA conference in May 2023 including Jacoba Ballard who was featured in “Our Father. Dr. Cline’s case is not unique. In 2020, a Texas doctor was under investigation for allegedly impregnating multiple fertility clinic patients using his own sperm instead of the donor sperm they chose. Dr. Kim McMorries of Nacogdoches, Texas had fathered at least seven children of his clinic patients, with an eighth child from sperm he donated while he was medical student. In his defense, Dr. McMorries stated that when this occurred, it was not considered wrong. However, the medical board sought to impose remedies including revocation of his medical license. To prevent this, the doctor filed a suit enjoining the medical board, citing a seven-year statute of limitations while also claiming that the board was being pressured by news coverage. Today, he is still actively practicing medicine. This also prompted the state to pass a law criminalizing doctor using their own sperm to inseminate patients without their consent as sexual assault. Our Take/Conclusion “Our Father” is chilling, cautionary tale which highlights the lack of legal recourse afforded to the children and parents who were victims of fertility fraud. This sort of donor fraud shakes families at the core because it violates the trust patients have in their doctor and the identity of their children. If you are interested in a different kind of documentary, Our Father is worth a watch. The documentary film premiered on May 11, 2022, and has been watched for 42.6 million hours by viewers. “Our Father” also shows us that the rapid development and ubiquity of DNA testing is changing the future of anonymous gamete donations and reminds us the importance to have written contracts in place, and a lawyer experienced and knowledgeable in fertility law to review or draft your egg or sperm donation contracts. Please contact Tsong Law Group for more information.

The Sinister Surrogate is a 2018 drama and thriller film that stars Brian Ames and Kelly Thiebaud. The movie features a perfect couple Danielle and Josh having everything in their lives: a beautiful house and successful lives. Despite this, there is one thing that the couple feels like missing: a child. They had multiple attempts to start a family, however, it all ended up in failure, giving them the chance to go for surrogacy route. While on their surrogacy journey, they meet Kailee, their perfect candidate as a surrogate. She is cheerful and lively and her pregnancy goes along smoothly. All is well, until after she gives birth. Kailee the surrogate kept on coming to Danielle and Josh’s family surprisingly offering them different gifts. Although this is supposed to be normal, Danielle can't help but feel there's something dark lurking behind Kailee the surrogate. This left the couple unsettled thinking that perhaps she felt attached to their daughter. As the story progress, it is revealed Kailee’s plan is to take Danielle and Josh’s daughter and claim her as her own. Real-World Accuracy In the first act, the movie examines how couples choose surrogacy as an option after unsuccessful fertility treatments. When Kailee was picked as the ideal surrogate candidate for the Danielle and Josh, the latter are very supportive and engaged throughout the pregnancy. In reality, intended parents are allowed to attend pregnancy appointments (though not birthing classes), and the delivery of their surrogate. One major issue portrayed in the movie is the contact by Kailee post-pregnancy. In reality, while many parties can continue to have contact after the delivery, others choose to have no contact with their surrogate post-pregnancy. There is no indication in this movie that the parties addressed contact after delivery in their gestational surrogacy contract. If Danielle and Josh were clients of Tsong Law Group, they would have had a section in the surrogacy contract on permissible contact. This section would allow either party to cease contact in writing, and hold the other in breach. It should also be noted that there is no legal uncertainty about who is the parent. Kailee should have signed paperwork that relinquishes and waives all her claims to claim parental rights and stipulated to a judgment that Danielle and Josh are the parents. One thing that is also disappointing in the movie was the ability of the agency to put a stop to Kailee’s plan but failed to do so. Kailee’s interference would have been prevented only if the agency had properly screened Kailee in the first instance. It is apparent that Kailee has never given birth before. Under ASRM guidelines, surrogates must have experience delivering babies so that the doctors know they are ideal candidates without complicated deliveries. I am unaware of any U.S. agencies that allow surrogates who have not given birth. Even had she were qualified, Kailee would have undergone a psychological screening to assess whether she had any mental illnesses or understood her role as a surrogate or would be attached to a child. Further, she should have had her own separate attorney to review the surrogacy contract, ensuring she understood her role as the surrogate, understood permissible contact, and understood she had a right to receive psychological support during the journey. Assistance from the agency during the journey would also be warranted. Agencies often provide support group meetings as well as psychological assistance. If Kailee was surrounded by surrogates who understood their role, and had to discuss how she felt, she might have appropriate feelings for the child she was carrying, or perhaps red flags would be raised to show she needed more psychological assistance. Conclusion: If you’re into thrillers or dramas, The Sinister Surrogacy is a movie still a miss. Perhaps not surprising, the movie is another by-the-numbers that calls on the trope of the obsessive surrogate who wants the baby, though the actors playing Danielle and Josh do a good job. Although the movie depicts a bit of what happens in reality in the first scenes of the movie, it veers into camp with the all-too familiar storyline of the obsessed surrogate. We don’t think that The Sinister Surrogacy is realistic and the concept of the surrogate wanting to claim the baby is extremely overblown in movies. However, whether you are an intended parent or a surrogate, you should always have competent, experienced counsel for your journey, who can answer all your questions. Contact us today.

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 AAAA fellows in the field of surrogacy and other ART arrangements and will ensure the protection of your rights and interests.

'Baby God,’ directed by Hannah Olson, explores into the deceptive acts of Dr. Quincy Fortier, a fertility doctor whose actions profoundly affected many lives. Like our previous review of ‘Our Father,’  in which Dr. Donald Cline deceptively used of his own sperm, 'Baby God' explores Dr. Fortier’s deceptive acts over the course of decades.  Dr. Fortier was highly regarded in the medical community for his expertise in assisting couples struggling with fertility issues; he even established Las Vegas's first women's hospital. His career began in the early 1960s, a time when infertility was a taboo subject, and viable options were scarce. Additionally, the absence of frozen sperm technology, which only became common in the 1980s, further limited available solutions.  However, beneath his professional façade lay a troubling truth: Dr. Fortier used his own sperm to impregnate numerous of his female patients without their knowledge or consent.  The documentary presents firsthand testimonies from individuals, often referred to as ‘Fortier's children,’ who discovered their genetic connection to Dr. Fortier through DNA testing. These personal stories shed light on the profound impact of the shocking discovery on their sense of identity and family dynamics.  ‘Baby God’ also features accounts from patients who sought Dr. Fortier's assistance with fertility issues, only to later uncover his deception. Wendi Babst, whose experience is highlighted in the documentary and is among the first interviewed, learned of her numerous genetic matches through DNA testing. Many families similar to Wendi’s share a deep sense of betrayal as they placed their trust in Dr. Fortier's expertise and integrity.    What are the legal aspects of the movie?  While there is discussion in ‘Baby God,’ of potential legal action or considerations of accountability, the documentary film does not include scenes of individuals consulting lawyers or engaging in legal proceedings. As Dr. Fortier is deceased, it appears his victims have no recourse.     Contrasts in Legal Standards: From Dr. Fortier's Time to Today  The legal standards regarding assisted reproduction and donor conception portrayed from the mid-to-late 20th century differ significantly from today's standards. During Dr. Fortier's time, donor anonymity was common, and regulations surrounding assisted reproductive technologies were less comprehensive. At the time, no law prohibited the sort of act Dr. Fortier engaged in and donor-conceived individuals faced barriers to accessing information about their genetic origin.  Today, legal standards emphasize transparency, accountability, and increasing the rights of donor-conceived individuals. Laws in Washington  and  California  among other states grant donor-conceived individuals the right to access medical information about their donors and a potential right to contact them, and ASRM guidelines  ensure safety, ethical practice, and the protection of all parties involved in assisted reproduction. Some states have enacted laws that criminalize donor deception.   Where Is Dr. Fortier Now?  Dr. Quincy Fortier passed away in 2006, leaving behind a legacy tainted by controversy and ethical scrutiny. He is no longer alive to be held accountable for his actions. However, the questions raised by his unethical behavior continue to resonate within the medical community and society at large, serving as a stark reminder of the importance of ethical standards and accountability in healthcare.   As viewers reflect on the revelations brought to light in ‘Baby God,’ they are left to contemplate the lasting consequences of Dr. Fortier's actions and the ongoing efforts to ensure transparency and integrity within the field of reproductive medicine.    Should You Watch It?  While “Baby God” offers a chilling story, the documentary is unfortunately very slow paced. With many transitions and without a set timeline, the exposition jumps from victim to victim and the pacing leaves a lot to be desired. All the content could probably have fit in a half hour show. However, if enjoyed “Our Father” or enjoy learning more about the wild west days of fertility, then “Baby God” is worth a view.   In the pursuit of parenthood, it's essential to consider all aspects, including legal matters. If you or someone you know is navigating fertility treatments and requires legal guidance, don't hesitate to contact us now.

Previously on our blog, we have discussed whether egg donor compensation is taxable and whether surrogacy expenses are tax deductible. In this blog, we will cover if intended parents may deduct from their taxes the expenses for an egg donor as deductible medical care expenses under the 26 U.S. Code Section 213(a). The answer is maybe, and surprisingly, more expenses than those that directly relate to medical expenses. Under Section 213(a), taxpayers may deduct expenses for medical care that exceed 7.5 percent of adjusted gross income. Medical care can be defined as amounts paid for diagnosis, cure, mitigation, treatment, or prevention of disease, 26 U.S. Code Section 213(d)(1)(a). This code also aims at issues affecting bodily functions or structures. The IRS states that preparatory expenses directly related to a medical procedure may also be deductible. In the private ruling letter released on May 5, 2003, a taxpayer was seeking deductions for medical expenses when she attempted pregnancy using donated eggs. We can deduce the taxpayer is a woman, because she had previously been unable to become pregnant using her own eggs and sought to implant the fertilized egg into her own body. She requested deductions for (1) the donor’s compensation (described as a fee for her time and expenses), (2) the agency fee for obtaining the donor, (3) expenses for donor’s medical and psychological testing and insurance for post-procedure expenses, and (4) legal fees for preparing a contract with the egg donor. When applying the Tax Code to this taxpayer's situation and expenses incurred in obtaining an egg donor, the IRS concluded that these expenses were closely tied to the medical procedure of assisted reproduction and were fully deductible under Section 213. Even the compensation to the egg donor and the agency fee. The reasoning in the Letter was that these expenses are to facilitate the process of overcoming infertility and achieving pregnancy, directly impacting the taxpayer’s bodily functions and fulfilling the criteria in Section 213. The ruling in this egg donation letter is a stark contrast to the 2021 Private Letter Ruling on whether surrogacy expenses are deductible. Both rulings address the deductibility of medical expenses associated with assisted reproduction, specifically egg donation and IVF procedures. The 2021 ruling found that expenses incurred on behalf of a third party during gestational surrogacy were not considered deductible medical expenses. The taxpayers in the 2021 ruling were a gay male couple, and the IRS ruled none of their expenses for egg donation and gestational surrogacy could be considered incurred for treatment of a disease or for the purpose of affecting the function of the taxpayer’s body (outside what directly involved their bodies such as the sperm retrieval). In contrast, the 2003 ruling was for a woman, or perhaps a couple that included a woman with an infertility diagnosis. Because she had an infertility diagnosis and intended to implant the resulting embryo(s) into her own body, every expense she requested related to the egg donation was considered incurred for the treatment of a disease. It might seem hard to reconcile the stark difference in outcome between these two rulings. In the 2003 egg donor ruling which allowed for the deduction of everything, there was a medical diagnosis of infertility. In the 2021 ruling which restricted deductible expenses to those directly affecting the taxpayer's body or the body of the taxpayer’s spouse, there was no medical diagnosis of infertility, but a gay male couple could not produce eggs or have a pregnancy on their own. Thus, the differences in the treatment of deductible expenses may lie in whether there is a medical finding of infertility or rather, a practical or social reason for infertility. If the facts were different and the 2003 taxpayer pursued surrogacy rather than implanting the fertilized egg into her own body, it is not clear whether the IRS would rule she could deduct surrogacy expenses. Another interesting scenario would be if the taxpayer were a gay couple or male with a medical diagnosis of infertility, whether the IRS would accept the same diagnosis to cover egg donor expenses. It is worth noting that a Private Letter Ruling only applies to the taxpayer requesting it and does not bind the IRS to that reasoning or decision with any other taxpayer. Nonetheless, the broader ruling in 2003 may provide a legal and medical pathway to getting egg donation and possibly surrogacy expenses deducted from one’s taxes. If you have questions about whether your third-party reproduction expenses are deductible, contact your tax advisor as we are not tax lawyers. When it comes to egg donation or surrogacy law, Tsong Law Group brings years of experience in this field. Message us now to find out how we can assist you. Read more about the deductibility of third party reproduction related expenses in our blog on egg donation expenses here. The difference in outcome may surprise you.

Adopting a child can be a long journey with financial implications. This year, the U.S. government offers an adoption tax credit of up to $15,950 in 2023 increasing to $16,810 in 2024 to assist adoptive parents with the costs associated with the adoption process. How does the tax credit work? A credit is better than a deduction, it is a straight refund of qualified adoption expenses up to the annual tax credit in expenses. So, if you have $3000 in taxes for a year, and had over $3000 in adoption expenses, you will get a $3000 refund and the balance as a credit carrying over for a subsequent year. Qualified adoption expenses The first thing to do is determine your qualified adoption expenses, as defined in Section 23(d)(1) of the Internal Revenue Code, which consist of costs you have paid that are directly associated with the adoption process. Here's a breakdown of what qualifies: ● Reasonable and necessary adoption fees: This includes fees paid to adoption agencies or professionals facilitating the adoption. ● Court costs and attorney fees: Legal expenses incurred during the adoption proceedings are considered qualified adoption expenses. ● Travel expenses: This covers the costs of travel, including meals and lodging, while away from home for adoption-related purposes. ● Other directly related expenses: Any additional costs essential for the adoption process fall into this category, such as reasonable birth mother expenses, medical care for the child, etc. In domestic adoptions, these expenses are considered qualified even if paid before identifying an eligible child. Eligible children are those under 18 years old or incapable of self-care. However, expenses related to adopting a spouse's child are not considered qualified adoption expenses, therefore all stepparent and adoptions are not eligible for any adoption credit. In a special case, if registered domestic partners reside in a state allowing second-parent adoptions, expenses incurred by one partner for adopting the other's child may qualify. Income and dollar limitations The tax credit for adoption does have some limitations, including income-based criteria and dollar thresholds. For the tax year 2023, the phaseout range for Modified Adjusted Gross Income (MAGI) is between $239,230 and $279,230, which means if you make between this amount, you will not be able to claim the full adoption tax credit, and at or above $279,230, there is no adoption credit. This applies to those whose status is single, head of household, qualifying surviving spouse, or married filing jointly. Generally, if you are married, you must file a joint return to take the credit or exclusion. However, if you are married and aren't filing jointly because you are separated from your spouse, you may be able to take the credit or exclusion on your own return, but you must meet certain requirements set by the IRS. Additionally, the maximum allowable adoption expenses each year are influenced by previous claims made for the same adoption effort and expenses incurred during unsuccessful adoption attempts. In which tax year can you claim the credit? The timing for claiming the adoption credit depends on when expenses were paid, the type of adoption (domestic or foreign), and when the adoption was finalized. Expenses paid before the adoption is finalized can be claimed on the tax return for the following year for domestic adoptions, while for foreign adoptions, expenses paid before and during the year of finalization can be claimed on the tax return for that year. Once the adoption is finalized, expenses paid during or after that year can be claimed on the tax return for the year they were paid, regardless of whether it's a domestic or foreign adoption. This means that expenses paid in previous years may be eligible for the current year's tax return. For example, if an adoption became final in 2023, expenses from previous years leading up to the finalization can be claimed on the 2023 tax return. Special Needs Adoptions Adopting a U.S. child identified as having special needs may qualify you for the maximum adoption credit. However, this maximum amount may be reduced if you've claimed adoption expenses for the same child in previous years, and income limits may apply. Additionally, even if you or your employer didn't pay any adoption expenses, you may still qualify for an exclusion if your employer has a written qualified adoption assistance program. A child is considered to have special needs if they are a U.S. citizen or resident when the adoption process begins, the state determines they can't or shouldn't return to their parents' home, and the state believes they likely won't be adopted without assistance. Filing Considerations Your filing status affects your eligibility for claiming the adoption credit or exclusion. If you filed your taxes as "married filing separately" in the year you first qualify for adoption expenses, you generally can't claim the credit or exclusion for those expenses. You may need to amend your return to change your filing status if you meet certain requirements. To claim the adoption credit or exclusion, complete Form 8839 and attach it to your tax return. You no longer need to include adoption documentation with your return, but you must keep it for your records. The IRS encourages e-filing, and Form 8839 can be e-filed with your tax return, eliminating the need to mail completed forms. This article is for informational purposes only. It does not constitute legal or tax advice. Talk with your tax professional if you need help with seeking an adoption tax credit. If you have an adoption in California, our legal team is ready to help you. We even offer the benefit of Your Adoption Finance Coach to those pursuing an independent adoption and need help with fundraising, grants, or budgeting for their adoption. Reach out to us now.

Intended Parents who opt to use a gestational surrogate often have questions regarding their legal standing as parents. One key question that comes up is: who is on the birth certificate when we use a surrogate? In many surrogacy-friendly states like California, New York, Washington, Arizona, and Oklahoma where Tsong Law Group is licensed, intended parents are to establish their parental rights through a pre-birth order.  You or your agency should inform your attorney that your surrogate is pregnant, so the attorney has time to prepare a pre-birth order. Once the lawyer obtains a pre-birth order from the court, this court judgment will instruct who will appear on the birth certificate worksheet. The pre-birth order will require hospitals to allow the intended parents to complete the birth worksheet at the hospital and orders that the intended parents be listed as parents on the original birth certificate. A pre-birth order in a state which accepts it means that the intended parents are the parents at birth. Pre-birth orders allow intended parents to have full custody and parental rights to the child and the intended parents do not need subsequent orders. However, not all states are pre-birth order states.  Other states like Utah, Texas, Oregon and Florida are post-birth order states, where the legal judgment for parentage is issued after the baby is born. In Florida and Tennessee, the non-genetically related intended parent or couples may have to do a post-birth adoption rather than a post-birth order. As we have discussed in our blog about pre and post-birth orders, in some post-birth order states, the birth certificate may originally be in the surrogate’s name, and after the post-birth order is granted and received by the state’s vital records, the original birth certificate may be sealed and replaced by one with intended parents’ names. Intended parents will thus end up on the birth certificate and the gestational surrogate should not be on the birth certificate. Conclusion: Every surrogacy friendly state in the United States has specific procedures to establish parentage and allow intended parents to be on the birth certificate. To not have the surrogate and their spouse be on the birth certificate, it is important to consult with your attorney on the applicable state’s laws. Every surrogacy journey is different so consult with Tsong Law Group. Our attorneys are well versed in surrogacy laws and licensed in California, New York, Illinois, Washington, Arizona, and Oklahoma. Contact us now for your surrogacy legal needs.

Since 2005, the state of Illinois has had a surrogacy law on the books. Unlike other states, the Illinois Gestational Surrogacy Act has a few requirements that are distinct and not found in other states like that of in California and Washington. In this article, we discuss the requirements for surrogate and intended parents, and as well as the legal requirements for surrogacy agreements. Under the Illinois law, a surrogate must meet the following requirements: She must be over 21 years old; She has given birth to at least one child; She has completed a medical and mental health evaluation; She has undergone a legal consultation regarding the gestational surrogacy agreement with her independent attorney; She has a health insurance policy that covers major medical treatments and hospitalization, and the term extends throughout the duration of the expected pregnancy and eight weeks after the birth of the child. (Note, the policy may be paid for by intended parents). Meanwhile, Intended Parents have the following requirements: They must contribute at least one of the gametes of the pre-embryo to be carried by the surrogate; At least one intended parent must have a medical need for the surrogacy as evidenced by a physician’s affidavit; They also must have completed medical and mental health evaluations; and They have undergone a legal consultation with their own independent counsel. The surrogacy agreement as well as the medical affidavit between the parties must be witnessed by two witnesses. Once the surrogate is pregnant, the Illinois Parentage Act requires: The surrogate and her spouse certify that she is carrying the child for the intended parents and did not provide a gamete for the child; The intended parents certify the child was conceived using a gamete of one of the intended parents and not of the gestational carrier or spouse; An Illinois licensed physician certifies the same as (2); and The attorneys for intended parents and surrogate certify compliance with the Gestational Surrogacy Act. Upon the hospital’s receipt of the certifications, the Illinois' Department of Public Health will issue a birth certificate with the intended parents' names on it. This procedure does not involve a court judgment which means some international or same-sex intended parents may seek a parentage judgment to protect their rights. For a seamless process, make sure to consult with a lawyer who specializes in surrogacy law. The attorneys of Tsong Law Group have experience in the areas of gamete donation, surrogacy, family law, and more. They are also licensed in the states of Illinois, California, New York, Washington, Arizona, and Oklahoma. Contact us now if you need assistance. 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.

If you are considering surrogacy in California, it is one of the friendliest states in the United States and the first to recognize parentage through gestational surrogacy. However, before the actual embryo transfer procedure can take place with the surrogate, there are legal requirements that must be met with the surrogacy contract. California law requires the following: The parties need to have a separate independent counsel of their own choosing. The intended parents must be identified; they may not be anonymous. The intended parents must state the source of the gametes (egg/sperm/embryo) (their own or from a donor). The name of the donor does not need to be listed. All parties must sign the agreement before a public notary or international equivalent before starting injectable medication or the embryo transfer procedure. (Note, ask your attorney if a web notary is ok, as this may cause issues for some courts.) There must be an explanation of who is paying for the medical expenses of the pregnancy and of the child, and a review of the surrogate’s insurance policy if any. If there is a third-party facilitator (i.e., a surrogacy agency), then the funds must be held in an independent escrow account or in an attorney’s trust account. kSatisfying all the requirements will allow the attorneys to seek a “Prebirth Order” (also known as a PBO) or a Judgment of Parentage. A certified copy of the Judgment of Parentage will be recognized by hospitals in California and by California Vital Records. Satisfying all the requirements will allow the attorneys to seek a “Prebirth Order” (also known as a PBO) or a Judgment of Parentage. A certified copy of the Judgment of Parentage will be recognized by hospitals in California and by California Vital Records. The judgment may be recognized in other states if the surrogate lives in another state, though not every state. In California, the original birth certificate will list the intended parents as the parents and not list the surrogate’s name on the birth certificate. Consult with a lawyer who has specific experience in surrogacy to ensure a seamless process. The attorneys of Tsong Law Group have extensive experience in the niche field of surrogacy law. Don’t forget to tune in to our blog every Thursday for discussion of surrogacy agreement requirements in the states of NY, IL, WA, AZ, NY, and OK. 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.