This is a summary of the general timeline of this process, please note that unique circumstances or variable occurrences may affect the timeline listed below.
1. Clients can reach out to the attorney at any point in the commencement of their surrogacy journey for (1) initial consult and (2) retention of the attorney’s services.
2. Once the Intended Parents have been matched with a surrogate, either independently or through an agency, and the parties have been medically and psychologically cleared, the attorney will reach out to clients to go over any information that may still be needed for the contract prior to drafting. If there is an agency involved, the agency will send confirmation of surrogate’s clearance and general information regarding the parties.
3. The initial draft of the contract will be sent to the Intended Parents for their initial review soon after confirmation of Surrogate’s clearance.
4. Clients and attorney will review the agreement and modify as needed.
5. Upon completion of the initial review, the contract is sent to the Surrogate’s attorney for her to review with her Attorney.
6. After negotiation, the final agreement is signed by the parties with a notary.
7. Once the contract is signed, legal clearance will be sent to the IVF Clinic Physician. With this legal clearance, the IVF Clinic can now begin the medical portion of the process and get the transfer scheduled.
8. In the last trimester, Clients and Attorney will discuss the parentage proceedings and Attorney will obtain all of the information needed for the parentage establishment post birth. (A pre-birth order confirming the validity of the surrogacy and the information of the parties may be obtained prior to this, but consult with Attorney for specific details)
9. Attorney will prepare the legal documents required for the establishment of parentage, as well as, communicate with the birth hospital to make sure hospital has everything they need in preparation of the surrogate birth.
10. Upon birth of the child or children, Attorney will set a hearing which is typically scheduled within the next week following the birth.
11. The judgment is signed at the hearing and sent that day to Vital Statistics to obtain the birth certificate with the Intended Parents’ names on it. If the “rush” election is made, the birth certificate usually takes between 7-10 business days.
12. International Clients*: Once the birth certificate is received the clients can obtain the passport for the child or children within 2-3 business days of their appointment. Additionally, Attorney will order certified copies of the birth certificate and/or court order as needed.
- initial client consult & attorney retained
- surrogate is medically and psychologically cleared
- initial draft of the surrogacy contract review between Parents and Attorney
- contract is sent to Surrogate’s Attorney for Surrogate’s review
- final contract is signed and notarized
- legal clearance is sent to IVF Physician & Clinic
- embryo is transferred to Surrogate
- client attorney consult for birth information
- attorney reaches out to hospital to prepare hospital for birth
- child (or children) is born
- parentage establishment hearing is held & judicial order signed
- birth certificate is obtained
- International Clients: apostilled document copies ordered & passport obtained
- International Clients: Clients can return home
Many wonder whether a contract between the Intended Parents
and the Gestational Surrogate (and her spouse if she is married) is a necessity
in a surrogacy matter. Simple answer is yes. Under Florida
law, a contract is specifically required under Florida
Statute 742.15. Section 1 of that statute states,
“Prior to engaging in gestational surrogacy, a binding and
enforceable gestational surrogacy contract shall be made between the
commissioning couple and the gestational surrogate.”
The statute goes on to list the
specific requirements in order for the contract to be valid. Among those
requirements are the age requirement, where the Parties to the contract must be
at least 18 years of age. Additionally, the law states that the couple must not
be able to physically gestate a pregnancy to term, or the pregnancy
would cause a physical risk to the mother or to the fetus “within reasonable medical certainty as determined by a physician…”.
For those who qualify
under the law, they can proceed with a contract. Without this contract in
place, there is no legal basis for the Intended Parents to establish their
parentage in court for a birth of their child via surrogacy. This means the
Intended Parents would not be able to obtain a birth certificate with their
names on it as the legal parents. Consequently, obtaining those parental rights
over the child would become a drawn out legal process, which could end up in
having to go through an adoption proceeding, even if the child is 100%
genetically related to the Intended Parents. Something easily avoided with a
proper contract in place.
Apart from the legal requirement, there are many other very important reasons to have a contract in place. A contract will protect the parties from legal disarray further down the road. For the parents it will provide the conclusive evidence of an agreement as well as allow for a streamlined paternity establishment at the birth of their child. For the surrogate, it will evidence her intent and keep her from having a drawn out legal situation or fall subject to any responsibilities, whether they be paternity or financially based. The contract will provide the proper remedies for any unforeseen circumstances and act as evidence of the expectations moving forward.
What does the contract include?
In order to provide these protections, the contract will provide for many things including, the parties’ intentions, the applicable law, the professionals involved and the insurance (medical and life) being utilized. The agreement will also address the parties’ responsibilities throughout the duration of the agreement as they pertain to their actions throughout, their financial responsibilities, their remedies in case of breach and responsibilities to third parties (i.e. confidentiality). The content of the contract should be such that all important scenarios and decisions are addressed then in the agreement, before the situation actually arises.
Inevitably, there are variable
outcomes with every change in circumstance during a surrogacy journey and the
agreement needs to anticipate those outcomes to protect everyone involved,
especially the child. The terms included in a good contract are therefore
constantly evolving for the utmost protection. One very important inclusion is
the acknowledgement of and courses of action laid out for any potential
disputes or unexpected events that may arise. The agreement addresses what
could potentially occur for the safety of the parties, especially for a process
that from a legal perspective is relatively new and hasn’t had as much
litigation in Florida as other areas of the law. This lack of case law, makes
it especially important to have a well drafted contract for the journey.
What does the contractual process look like?
Usually, the contractual stage
consists of the following steps: (1) Parents’ attorney receives confirmation
that surrogate has been medically cleared, (2) the initial contract is drafted
and sent to the parents to review, (3) the parents review the contract with
their attorney and modify as needed, (4) the contract is sent to the
surrogate’s attorney, (5) the contract is negotiated, (6) the final contract is
signed by all, and (7) parents’ attorney sends the Reproductive Endocrinologist
a clearance letter stating that a legal contract is in place and that medical
can move forward.
You can check out our surrogacy timeline for more information.
An important point to consider
during the contractual stage is timing. Many like to rush through the
contractual stage in order to get to the medical portion and a successful
pregnancy (the ultimate goal and most exciting portion of the journey!), however,
the contractual stage should be a phase of the process approached with
patience, diligence, and thoroughness so that the rest of the journey is a
Keeping that in mind, make sure to
read everything thoroughly and ask any and all questions or doubts that may
arise. Although initially overwhelming, that is what your attorney is there
for. It is of the utmost importance, whether you are a parent or a surrogate,
that you understand and agree with the contract you will eventually sign. The
work put in at the beginning will pay off throughout the process.
hard work and attention to the contractual stage will allow for a safer and
more predictable journey for everyone. Hire an attorney who stays current and
up to date on national and international surrogacy outcomes and who is
connected to the professional community. You want someone that will provide an
effective contract which addresses those situations that may potentially affect
their clients, even if not usual or common. You want to feel confident in your
representation and the agreement you are signing. After all, there is enough
unpredictability involved with an assisted reproductive procedure and many
things that are not in a person’s control (i.e. successful pregnancy), but a
good contract is something that can and must be done.