Need
for a Contract : It is desirable to have a contract,
or a solid understanding, of what the rights and liabilities
are of each party to the surrogacy arrangements even
when no fee is being charged, as where the surrogate
is a good friend, or relative. The poet Robert Frost
said "Good fences
make good neighbors", and similarly, good contracts make
for good relationships between people since it makes their
understanding clear. That would be the basic purpose for
the agreement.
Where the surrogate is to be paid a fee it is essential
that there be a written contract describing the rights
and liabilities of the parties to the contract.
(If the surrogate is a friend or relative, you may not
want or need a contract.)
Right of Surrogate
to Change Her Mind : Here the opponents
of surrogacy take a page out of the adoption book. In adoptions
the birth mother always has a certain period of time (72
hours from the birth of the child in Illinois) in which
to change her mind -- actually, under Illinois adoption
law a birth mother cannot give a consent to adoption until
the 72 hours have passed.
The resolution of the famous Baby M case was typical of
the resolution of most surrogacy cases, that is, the courts
have not enforced the surrogacy contract, but instead,
if the birth mother changes her mind and wants to keep
custody of the child, the court will decide the case on
the basis of what is in the best interest of the child.
It was on that basis that the court, in Baby M , gave custody
of the child to the intended parents. There was another,
more recent case, Johnson v. Calvert , in California, in
which the genetic material of the intended parents was
used. The surrogate was not genetically related to the
child. The sperm of the intended father and the eggs of
the intended mother produced the child. The court placed
emphasis on the fact that the child was not related to
the surrogate mother in awarding the child to the genetic
parents.
The short of it is that there are no legal guarantees,
but if nothing else, the contract should assure those involved
that they are not participating in any illegal act and
the contract is probably enforceable.
Services of
Gitlin & Kasper
: The services provided by this firm in surrogacy arrangements
include: meetings with the intended parents; meetings
with the surrogate; drafting of the surrogacy contract;
coordinating between you and the surrogate mother for
medical and psychological exams and the insemination
or IVF; drafting and arguing a motion for declaratory
judgment (described below); drafting pleadings, orders,
etc. regarding the adoption proceedings and court appearances;
coordination with the hospital for transfer of the baby
and attending to the transfer of the baby; necessary
correspondence, conference, telephone communications,
etc.
Insemination and In vitro Fertilization
: Medically
there are two types of surrogacy procedures: artificial
insemination of the surrogate, or in vitro fertilization.
The procedure which is used depends on the nature of the
infertility problem.
In vitro fertilization (test tube babies) is
a new medical technique. The first test tube baby was born
in 1978. IVF with a surrogate can be creatively performed
to meet any infertility problem.
A. The intended mother can produce good eggs and the intended father has good
sperm. The eggs can be removed from the intended mother and fertilized with
the sperm of the intended father in a petri dish, and the fertilized ovum
are implanted in the surrogate. The surrogate is thus not genetically related
to the child and the child is 100% the genetic child of the intended parents.
B. The intended mother cannot produce good eggs. The intended father has
good sperm. In such situations the surrogate mother is artificially inseminated
with the sperm of the intended father.
C. The intended father does not have good sperm and the intended mother
cannot produce good eggs. The surrogate can be inseminated with the sperm
of a third party donor.
As can be seen from the above, other infertility problems
can also be addressed by using invitro fertilization techniques.
My firm does not operate as a surrogacy clinic and does
not make the medical arrangements for artificial insemination
or invitro fertilization. This is the task of the intended
parents. This firm does, however, where necessary, assist
in the coordination of medical procedures between the intended
parents and the surrogate.
Laws : Except for the Illinois Gestational Surrogacy Act which took effect in January 2005, Illinois has no other statutory law or case law in regards to surrogacy. For a discussion of gestational surrogacy see H. Joseph Gitlin's article, "Illinois Becomes Surrogacy Friendly." Briefly, in gestational surrogacy the egg of the surrogate is not involved. She is merely the gestator for the embryo (fertilized egg) which has been transferred into her uterus. In a gestational surrogacy the genetic material of at least one of the intended parents must be used. In traditional surrogacy the egg of the surrogate is artificially inseminated with the sperm of the intended father. For traditional surrogacy, since there are no laws controlling it, we are sailing on uncharted waters except for the experience of the lawyer in handling Illinois traditional surrogacy cases.
Having
the Contract Declared Valid : After the surrogate
mother and her husband have consulted with their lawyer
and the agreement is signed by the parties involved, the
agreement, as drafted, is still not binding. The agreement
will provide that it is not a viable contract, despite
the signatures, until a court, in declaratory judgment
proceedings, approves the contract. The reason for this
is that paying money in consideration of receiving a child
is illegal. In the declaratory judgment procedure we ask
the court to find that the intended payments to the surrogate
are for her services in becoming inseminated, carrying
the child and delivering the child -- and not for the child.
After entry of a declaratory judgment approving the contract,
insemination, or IVF, starts.
The Adoption
: As soon as the
child is born a petition for adoption should be filed.
The consent of the surrogate mother's husband (if she
is married) may be taken any time after conception. The
surrogate mother's consent cannot be taken until more
than 72 hours pass from the time of birth. We attempt
to have the intended parents take the infant as soon
as it is discharged by the hospital, but some hospitals
require a "Turn Over Order" from the court
before releasing the child. This, ordinarily, should not
delay the intended parents taking the child for more than
approximately 24 hours after the child would otherwise
be discharged from the hospital.
The intended parents and the child must make either one
or two court appearances in the adoption proceeding. The
decree of adoption is usually entered about six weeks after
you take the child.
Literature
on Surrogacy : The best work describing the
surrogacy process in terms of the dynamics of the problems
and promises involved is Between Strangers: Surrogate Mothers,
Expectant Fathers and Brave New Babies by Lori Andrews.
It is published by Harper and Row. Lori Andrews was one
of the members of the committee that drafted the ABA Family
Law Section Model Surrogacy Act.
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