Surrogacy in 2012: The Year In Review

In 2012, a number of U.S. state legislatures took up the issue of surrogacy. New Jersey and California both passed laws that authorized surrogacy agreements. The California surrogacy law survived. Governor Chris Christie’s veto ended the New Jersey surrogacy law. An effort to legalize compensated surrogacy in Washington State fell apart in negotiations. A South Dakota bill to ban surrogacy was tabled in a committee.

Here are a few surrogacy developments from 2012:

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Maine, Maryland, and Washington voters approved marriage equality in November elections. Minnesota voters defeated an effort to create a constitutional amendment banning gay marriage. Nine U.S. states and the District of Columbia now issue marriage licenses to same-sex couples. (Read more about what the changes mean for gay surrogacy.)

State courts continued to weigh in on surrogacy in 2012. Maine’s Supreme Judicial Court confirmed that courts in the state can grant parentage to intended parents. A New Jersey Supreme Court decision required a non-genetic intended mother to adopt her child after a surrogacy arrangement.

Abroad, a new French president promised to make same-sex marriage and gay adoption legal. And the United Kingdom announced its plan to grant maternity leave rights to women who have had their children through a surrogate. Queensland, Australia’s Liberal National Party announced that it would seek to prevent same-sex couples from pursuing surrogacy.

E! News news anchor Giuliana Rancic welcomed a child through surrogacy. And NBC premiered The New Normal, a television show about a gay couple, their surrogate, and their journey to become parents through surrogacy.

Stay tuned for our thoughts on what we can expect in 2013!

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Surrogacy Laws: 4 Things You Need To Know

Surrogacy law encompasses family law, contract negotiation, estate planning, insurance and often immigration law. Legal experts at your surrogacy agency are charged with negotiating agreements between intended parents and surrogates and often egg donors, planning for the future and the best interests of the child, making sure everyone is insured from financial risk, finalizing parental rights, and getting everyone home safely.

Here are 4 of the most important things you should know about surrogacy law.

image1. Surrogacy laws differ from state to state.

Surrogacy falls under the umbrella of family law and family law is governed by the states.  The law governing  a surrogacy arrangement is almost always the one where the surrogate lives. This law will determine parentage and custody, unless the surrogate delivers in a different state.

In 5 states (New York, New Jersey, Michigan, Nebraska, and Washington) and in D.C., statutes or case law make surrogacy illegal or unenforceable. More often than not, it’s not a good idea to pursue surrogacy when the surrogate lives in one of these states.

In the remaining 45 states, there is either a statute that permits surrogacy, favorable high court decisions or both.  Others have no statute or published case, yet the courts regularly allow surrogacy.

2. Surrogacy law is always changing.

Cases are being handed down in the lower courts regularly and vital records offices are often changing their practices and procedures. It’s important for surrogacy experts to keep informed about changes in the law and the practice and to pass this information on to you.

Take California, for example, which has been favorable to gestational surrogacy law for nearly 20 years. In Johnson v. Calvert, the state’s Supreme Court established the principle that the intention of the parties in the surrogacy agreement governs any dispute between them.  In re Marriage of Buzzanca, the court extended the enforceability of the contract to intended parents who have no genetic relationship to the children.  Then, in September 2012, California passed a statute expressly authorizing surrogacy agreements as well as pre- and post-birth orders.

3. Working with an experienced attorney is essential.

Despite the existence of precedent, intended parents should still work with an experienced legal professional in the surrogacy field.  And negotiating a contract is vital. Doing a surrogacy or egg donation without a contract can lead to rights or responsibilities for the egg donor or the surrogate.

image4. Finalizing parental rights can take different forms.

Surrogacy is not a cookie-cutter field. Many factors come into play to determine which is the best way for those pursuing surrogacy to finalize their parental rights. For example, the state or country where the intended parents reside can regulate the finalization of parental rights.  In some states, for example, pre-birth orders (ordering hospitals to place intended parents on the birth certificate and giving the intended parents rights to make decisions for the child in the hospital) are recognized. Others, like New York and New Jersey, will not treat a pre-birth order as establishing legal rights if one parent is not biologically related to the child. In those states, the intended parents must do a step or second parent adoption back home.

Intended parents from abroad may need to pursue an adoption or a parentage order upon returning home. Or they may not need further legal work after leaving the United States. International intended parents should consult with attorneys in their countries to determine  which is the safest way to get home safely with their parental rights secured so that US agency lawyers can help match them properly.

CitationsJohnson v. Calvert, 5 Cal. 4th 84 (1993); In re Marriage of Buzzanca, 61 Cal.App.4th 1410, 72 Cal.Rptr.2d 280 (Ct. App. 1998); Culliton v. Beth Israel Hospital, 435 Mass. 285 (2001); In re Adoption of Tammy, 416 Mass. 205 (1993); In re Adoption of Galen, 425 Mass. 201 (1997); RR v. MH, 426 Mass. 501 (1998); and Hodas v. Morin, 442 Mass. 544 (2004); In re Paternity of M.F., N.E.2d 1256 (Ind.App. 2010); McDonald v. McDonald, 196 A.D.2d 7, 608 N.Y.S.2d 477 (2d Dept. 1994); In re Adoption of Sebastian, 879 N.Y.S.2d 677 (2009); In re T.J.S., 16 A.3d 386 (N.J.Super.A.D. 2011).

photo credit: s_falkow via photopin cc


Choosing An Egg Donor: Finding The Right Match

Bruce Hale is a Outreach Manager at Circle Surrogacy and a parent through surrogacy and egg donation.

Choosing an egg donor can be difficult for many intended parents.  How do you choose the person who will supply half of the genetics to your children? Here’s my experience. 

My husband and I chose our egg donor even before we were sure that we would work with Circle Surrogacy.  We found her on Circle’s egg donor list, and thought that she would be a great fit for us.  When we received her profile, we knew we had found the right person.  The answers she gave to the questions on her profile seemed as though a friend of ours could have written them.  The pictures she provided looked as though she could have been a member of either my family or my husband’s family.  In fact, although her ethnic background was more similar to mine, a picture she had provided of one of her siblings looked strikingly like one of my husband’s siblings.

Our egg donor was anonymous to us. However, we spoke with her on the telephone before we finalized the arrangement.  Our conversation sealed the deal.  Although it only lasted about 30 minutes, we had a comfortable dialogue, and she asked us great questions.  Her personality was a perfect match for ours.  We walked away from the conversation feeling that our egg donor was someone that we really liked-someone we felt we could be friends with in “real” life.  We liked her, we liked each other: how could we not like our kids?

My advice to intended parents is this: look for an egg donor that fits into your vision of your family.  It is easy to get hung up on characteristics such as the way the person looks in a picture or her current level of educational achievement, as if you can load the genetic deck for your child. 

After all, your egg donor is not a two dimensional array of statistics but a three dimensional person. What I think really matters is you choose an egg donor who is someone that you like as a person.