Surrogacy is legal in the USA and it is governed by state law not federal

Surrogacy is legal in the USA and it is governed by state law not federal . This means each state will have its own surrogacy process ranging from nothing to very restrictive rules and laws. So we strongly advise you to seek advice , before you embark on your surrogacy journey.

Unlike the UK and other countries you can:

• Create an enforceable contract that provides confirmation of everyones rights and responsibilities. This is often a key reason people travel from the UK overseas for the reassurance the birth mother will not fail to give up her parental rights being or entitled to retain these until after the birth ;
• Most states  have laws supporting gestational surrogacy arrangements, which establish your parental right before your baby is even born . This provides intended parents with an immediate birth certificate with their names on . However , please do note this will not be recognised in the UK you will still need to follow UK procedures once you return with your baby ;
• It allows you to enhance and provide care and compensation throughout your surrogate’s pregnancy as the reasonable expenses concern in the UK is not as stringent in the USA. The surrogate fees and expenses should be discussed up front and written into the contracts so this also prevents requests for additional sums as a later stage. However, if you are intending to come back to the UK these will not always harmonise with our laws and so you need to take UK advice and US advice to be sure you cover carefully each jurisdiction requirement . Anything over and above reasonable expenses is likely to lead to additional work and a further court hearing when you return to the UK.
• You can pay an agency to locate and secure a surrogate for you

A principal consideration for the USA, aside from above, should also be insurance.

They do not operate an NHS free medical system.

This is a short summary on those essentials that might be overlooked , receive differing opinions , might not even be known or addressed by your advisors , but for lawyers operating in this sector we rank these very highly in terms of importance:

• Do you understand the difference between pre and post birth surrogacy arrangements as each state has its own laws and essentially falls within these two categories

(Why do you need to know this : costs , insurance and when you legally become the legal parents are all factors)

Pre-birth surrogacy

This means that upon birth of your child they immediately become the intended parents baby , legally , on the birth certificate and for insurance / immigration purposes .

This is often considered emotionally the best option as the baby is legally yours  straight away , but actually this comes with its own considerations : medical expenses

Even where the surrogate has her own medical expense insurance that might be included in the surrogacy arrangements (discussed in more detail below ) after birth she relinquishes parental rights straight away so now the child needs their own insurance policy. This may sound negligible but what if your little one needs 2 months in hospital and several operations this could not only mean thousands of pounds but you as the only legal parent need to stay overseas to make all the medical decisions – your surrogate could no longer help

Post-birth surrogacy

This means that the child legally becomes the intended parents only by passing a parental order / court order which is usually applied for as the child leaves the hospital

This means the child remains the surrogates dependent so will be covered by her medical insurance (if applicable see below) and will be covered until such time as they are discharged. The surrogate can help with arrangements and medical decisions in support as a result no matter how long your baby is in need of treatment.

• So the next question is why is this important

Unlike the UK there is no NHS it’s all funded privately or via insurance so if your surrogate or baby need medical care you will be liable for these sums , without insurance , which can reach into thousands if one of them is seriously ill.

Life Insurance for the intended parents is something to consider in the event of something happening to either of you to ensure the surrogate and your baby are covered in the event of your death but as important

Surrogates Insurance

Your surrogate will need insurance , whilst pregnant . You should see if she has her own medical insurance and then check yourself or ideally through your agent or lawyer as to whether this exclude surrogacy (as can be common) . This needs to ensure both she and the baby are protected during pregnancy and birth .

If not you need to look at and consider the costs of an extra premium or entirely new policy in the event of sickness . These policies will have various caps on out of pocket expenses , excesses and exemptions so you do need to check these carefully . Without insurance your surrogate will need reimbursement and this could be thousands and if you don’t have these funds her life and your baby could be placed in jeopardy .

There is something called affordable care which means the policy premiums are far lower than private bolt on policies so this should be factored into your budget as some surrogates will have insurance or be eligible for this lower costed premium . Ask the questions early about what insurance they have , if any , whether it covers surrogacy and , as above , when does it apply to your baby and when it doesn’t . This could impact on who you choose as a surrogate and certainly costs.

If her insurance policy is post – birth your child could be covered until discharged from hospital which is far more cost effective or you do also have 30 days from the date of birth to acquire affordable insurance if you prefer to do it that way.

Why this option:

• if your child is born on time and in good health you may not need additional insurance or you may negotiate a very low rate
• if your child is going to need extensive treatment you can buy 6 -12 months insurance through affordable care as your child is still a USA citizen connected to the surrogate

That way your child gets the health care required without the pain of you paying privately

• The common concern is then what if the surrogate changes her mind surly pre-birth is safer

Firstly , if you look at case law there appears to be no reported cases where a surrogate has been able to retain the child when a fair and legal surrogacy arrangement has taken place , but we are not USA lawyers so cannot confirm this

Also:

• a surrogate could litigate pre or post surrogate arrangement regardless;
• you apply for the legal transfer of parental rights as soon as your child leaves the hospital ,post care required, and you can apply immediately for a birth certificate with your names secured
• both arrangements have a legally binding contract in place

So why use a surrogate without insurance

This could open up the pool of surrogates available to you and if you are prepared to pay/arrange for the insurance you may find yourself able to arrange things quickly. However, you need to be know what you are doing , check the costs and policies accordingly to protect everyone involved.

Finally when reviewing any insurance policies the minimum you should consider is:

• Check that surrogacy is not exempt
• Check whether commercial surrogacy is an issue in the USA
• Does it cover twins , some can exclude more than one child
• What are the excess sums and out of pocket expenses cap
• When and who is liable for the children’s medical care post birth
• What could void these policies