What you need to know about the legal process in California

Attorney Greg Masler of Masler Law answers common questions about the surrogacy process in the state of California.

Overview

Contracts

Medical Costs

Benefits of an Agency

About Greg Masler

Gregory S. Masler, Esq. founded the Law Offices of Gregory S. Masler in 2003. Greg received his law degree from the Thomas M. Cooley Law School (Lansing, MI) and has practiced law for over two decades. Greg has represented over 3,000 clients in assisted reproductive law matters, including Intended Parents, Surrogates, Egg Donors, and Embryo Donors. Masler Surrogacy Law clients have been successfully matched in over 4,000 Surrogacy and Egg Donation Agreements.

Greg’s specialized legal services include drafting and negotiating arrangements between parties, to Egg Donation Agreements, Surrogacy Agreements and Pre-Birth Order Judgments to establish parental rights in the State of California. Greg is a member of the American Academy of Assisted Reproductive Technology Attorneys (AAARTA) and the Society for Ethics in Egg Donation and Surrogacy (SEEDS). Greg and his staff enjoy assisting clients through the different legal processes and are dedicated to ensuring that each client receives individual attention and complete legal representation.

Overview of attorney responsibilities in the state of California

A surrogacy attorney’s role in the process involved drafting and reviewing the surrogacy agreement between intended parents and surrogates. The attorney is also responsible for preparing and reviewing documents filed with the court after a confirmation of pregnancy to establish the intended parents’ parentage over the child. Greg and his legal team will:

1. Draft a Gestational Surrogacy Agreement (GSA) between the Intended Parent(s) and the Surrogate.
2. Report to court and present the judge with a copy of the Gestational Surrogacy Agreement.
3. Obtain the Pre-Birth Order (PBO) from the court which ensures that the delivery hospital will recognize the IPs as the child’s parents.
4. Inform the delivery hospital that there will be a surrogacy birth at their facility.
5. Confirm with the hospital that, at the time of delivery, the Intended Parents can have a room of their own with their baby while they wait for hospital discharge

Advantages in California

California is a great state for gestational surrogacy. The state has a combination of well-established laws and statutes to protect surrogacy as well as an excellent selection of IVF and fertility resources, clinics, and agencies. The laws vary by state and Greg recommends consulting an attorney licensed in another state if you plan to participate in a surrogacy arrangement outside. of California.

Importance of a Gestational Surrogacy Agreement (SGA)

A surrogacy contract is critical because it documents the relationship, rights, and responsibilities of all parties engaged in the surrogacy arrangement. The contract will also document:

• Fees and cost reimbursements for the surrogate.
• How medical costs will be paid for during the arrangement.
• Parentage. Who are the intended parents and who is the surrogate?
• Escrow account management. How much will be deposited and held? How much will be disbursed and paid out?

What input does a surrogate have in the drafting of the contract?

The surrogacy contracts address. theright and responsibilite sof all parties. It’s very important that the surrogate feels confortable with all terms in the contract prior to signing. The surrogate’s attorney will consult with the surrogate to review the term sof the contract and she will have input to any changes she woul dlike to see made to the contract prior to signing.

Surrogate Privacy

The surrogacy contract will specifically include a confidentiality provision that lays out clearly that the surrogates and the intended parents should not be sharing the identity of any of the parties without their prior approval. The contract also stipulates that any communication between the parties after the birth of the child is strictly voluntary and cannot be forced on the surrogate or the intended parents.

What happens if a surrogate or intended parent does not follow the contract?

Should the terms of the agreement be breached by either party, there is cause for litigation.

What happens if a surrogate’s marital status changes during the surrogacy journey?

If a surrogate gets married during the course of the surrogacy arrangement after signing the contract, the surrogate must inform her attorney and the surrogacy attorney immediately. The surrogacy attorney will add the spouse to the Gestational Surrogacy Agreement (GSA) because there are issues related to privacy, confidentiality, and parentage that pertain to the spouse. The spouse is also a vital part of the Pre-Birth Order (PBO) process to define that the surrogate and her spouse are not the legal parents of the child.

What happens if there are complications during the surrogacy journey?

A good contract will address how all issues and complications will be addressed and when. If the surrogate has any questions about compensation in the event of diagnostic testing, for example, she should consult her attorney and her agency.

Can the surrogate keep the baby?

No. The current state of law in California states that the intended parents are the parents of the child and the law in California makes clear that the intent of the parties in terms of parentage is what rules.

What happens after the contract has been signed?

Once the surrogacy contract has been signed by all parties, the intended parents’ attorney will issue a legal clearance letter to the IVF clinic notifying them that a contract is in place between the intended parents and the surrogate. At that point, the IVF clinic will proceed with scheduling the surrogate for her embryo transfer date.

Whose names will appear on the child’s birth certificate?

The intended parents’ names will appear on the birth certificate. This point is addressed in the contract prior to embryo transfer. Once pregnancy is confirmed (approximately around 25 weeks of pregnancy), the intended parents’ attorney will prepare documents for the Pre-Birth Order (PBO). The surrogate and her attorney will be involved to sign the contract and finalize the parentage judgment.

How are medical costs paid during the surrogacy journey?

The intended parents are responsible for all medical fees during the surrogacy journey. In California, the Gestational Surrogacy Agreement (GSA) will outline the responsibilities of the intended parents to pay medical fees.

Gestational surrogates with GSHC Surrogacy Agency also require a health insurance policy in place for the journey. Intended parents are responsible for paying the premiums, deductibles, and out-of-pocket costs on the policy for the length of the journey and up to two months after delivery of the child.

Do I need a surrogacy agency?

It’s very important to have a good agency involved in the surrogacy arrangement. It’s critical to keep the channels of communication open between all parties. Having an agency be able to discuss with both parties and handle any issues that may come up during the surrogacy arrangement is absolutely critical.

Next Steps

To learn more about the parentage process in the state of California,  please contact Greg Masler and his team via their website https://maslersurrogacylaw.com/.