Answering Your Top 3 FAQs About The Surrogacy Timeline
The surrogacy process can feel like a whirlwind. The timeline, agreement, parentage, and how they all fall into place can be confusing, especially for first-time intended parents.
Here we’ll answer a few commonly asked questions about the surrogacy timeline to help demystify the process so you can confidently embark upon your surrogacy journey.
When Should I Begin the Legal Process?
The surrogacy process has multiple legal phases, depending on the jurisdiction (i.e. state). The first phase is the negotiation of the surrogacy agreement. While hopeful parents are often—and understandably—eager to get started, we advise intended parents to wait to begin the surrogacy agreement process until after their potential gestational carrier has received medical clearance.
This avoids a scenario in which intended parents spend time and money on legal counsel, money they likely would not get back, before knowing that their gestational carrier has medical approval to move forward with the surrogacy.
How Long Does the Surrogacy Agreement Negotiation Take?
Entering into a surrogacy arrangement is a serious endeavor and requires a comprehensive surrogacy agreement that protects all parties involved.
Fundamentally, the surrogacy agreement outlines:
- That the intended parents are the legal parents of the child and will assert parental rights and obligations immediately upon birth
- That the carrier (and, if applicable, her spouse or partner) is not
- Each party’s rights and obligations before, during and after the pregnancy
- A roadmap for what occurs during the surrogacy journey, both expected and unexpected
- Compensation and expense payments
As a general guideline, we’ve found that most surrogacy agreement negotiations last between 4 to 6 weeks.
🔍Tip: One way to expedite the process is to gather all the information you need before diving into the legal work, including the names of the doctors and hospital involved, the proposed compensation and estimated expenses, health insurance information and review, paystubs, and escrow information.
Once medical clearance has been issued and work on the legal agreement is ready to begin, we advise giving your attorney the most comprehensive information possible up front. If working with an agency, they’ll lead this process. If you’re pursuing an independent surrogacy journey, your attorney will likely provide you with a questionnaire to complete.
After the first draft of the agreement is complete, the speed of the process will largely depend on how quickly each party can review the draft and schedule a review call with their respective attorneys, as well as the number of items being negotiated and each party’s ability to compromise on certain at-issue topics, like number of embryo transfer attempts or how lost wages will be calculated.
Several rounds of back-and-forth negotiations are common, and while parties are often eager to get through the legal process as quickly as possible, a true negotiation ensures all parties’ rights and interests are being protected. The best way to keep the process moving forward is for the parties and their attorneys to maintain open and prompt communication throughout the process.
When Should We Begin Work on Parentage?
Establishing parentage—the second phase of the legal process—varies from state to state. In Ohio, for example, where surrogacy relies on case law, we can obtain pre-birth orders that establish the intended parents as the legal parents of the child immediately upon birth.
Work on Ohio pre-birth orders should begin by the 20th week of pregnancy, or by the 18th week if it’s a multiples (twins, triplets) or high-risk pregnancy. We find this timing provides a good balance between knowing the pregnancy is proceeding as hoped and providing ample time to obtain the birth order.
🔍Tip: Intended parents must make sure to tell their attorney that there is a pregnancy—the attorney won’t know otherwise!
In order to obtain the pre-birth order, the attorney will need to draft a series of pleadings. As with the agreement, the drafting process is significantly expedited when intended parents provide thorough information to their attorney upfront. Once the pleadings are finished, the attorney will then circulate a draft to the intended parents to review and approve.
Upon approval by the intended parents, the attorney will send the pleadings to the gestational carrier and the fertility physical to review and sign, as well as provide the intended parents with an affidavit to also sign.
Once all the pleadings have been signed, the attorney will then file them with the court, resulting in the pre-birth order declaring the intended parents the legal parents of the child and the surrogate (and her spouse/partner, if applicable) not the legal parents of the child.
With the court order establishing the parent-child relationship, the intended parents will make all medical decisions for the child, be named on the child’s birth certificate, have the child put on their medical insurance, and be discharged from the hospital with the child.
In Illinois, where surrogacy is governed by statutory law, we follow an administrative process to establish parentage. Work for this simpler process should begin at the 14th week of pregnancy, as all parties, including the attorneys involved and an Illinois licensed doctor, will need to sign multiple forms.
As in Ohio, intended parents must make sure to tell their attorney that there’s a pregnancy, because the attorney won’t know otherwise!
Considering a surrogacy journey in Ohio or Illinois? Contact us to discuss how we may be able to assist.