Surrogacy
State of the Law
Assisted Reproductive Technology (ART) is a new area of the law. Many of these activities are unregulated by state or federal law. The practice is constantly changing, and the rules and regulations vary dramatically between states. For example, in New York, it is impermissible to pay a surrogate for her services. However, paid surrogacy in Illinois is accepted, so no court intervention is necessary.
In Kansas, there are no specific rules against or for surrogacy agreements. Oocyte (human egg material) donations are only regulated in that a woman who donates genetic materials to a clinic for implantation is statutorily presumed not to be a parent of the child born by the donation. Those activities that are not regulated or prohibited by law are permitted.
The issue is: Absent a clear contract, the initial intention of the parties is not preserved and may not be enforced. The parties need to have a valid contract in order to remain confident in their promises, comfortable that they understand one another, and that they are capable of enforcing the agreement should anything unexpected happen.
A.R.T. Legal Services
Consultation: Each family brings a unique set of circumstances. The concerns and variables are apparently infinite. Legal consultation regarding the anticipated and unanticipated risks involved is crucial. Most medical practices will not undertake these procedures (especially surrogate parenting agreements) without legal consultation. The legal consultant must have experience in this area of law and in this jurisdiction.
Common issues: The most common ART services that we provide are surrogate parenting agreements in cases where the couple uses their own or donated genetic material. In fact, the use of donated material may arise in cases where a couple intended to use their own material, but later found that it was not viable. The other area where our contracting and consulting services is used is in oocyte (egg) or sperm donation contracts. Especially if this genetic material is not being donated anonymously to a clinic, private donations must use a contract.
Ethical and Legal Representation
Practical reasons prevent an attorney from being able to represent opposing parties. Parties contracting with one another—no matter how well they get along —are opposing parties. We can only represent one of the two sets of parties.
The other party will be offered the opportunity to seek counsel before signing any agreement, or proposed order.
The 2-Step Surrogacy Process
1) Before the pregnancy, a contract is drafted and agreed upon. Once the contract is approved, the job is surrendered to the medical professionals, and there usually is no additional legal work until the last trimester. Minor contract issues do arise occasionally.
2) Toward the last trimester of the pregnancy, the final documents are drafted. By that time, we know how many babies are expected, etc. We determine whether to seek an order before the birth. The pre-birth drafting and distribution of documents allows for review and editing, so things go smoothly when the birth occurs. There are circumstances in each case that effect whether a pre-birth order is necessary. Because the conception occurred in Kansas, we agree to use Kansas courts and Kansas law. The legal action filed is called a Parentage Action and resolves the ambiguity of legal parentage, making the intended couple the parents. While some judges have occasionally requested further evidence, like genetic testing, thus far no hearing has been necessary. Proper birth certificates are ordered and processed.
