The American Bar Association Family Law Fall Meeting will be held this week during October 15-18, 2014 at the Stowe Mountain Lodge in Stowe, Vermont.
I will be presenting From Contract to Court: Strategies to Help Your Parentage Establishment Withstand Attack in the Courts, together with Attorneys Catherine Tucker (Moderator) of New Hampshire, Kurt Hughes of Vermont and Jansen Wu of MA. The presentation will address gestational surrogacy law and contracts.
This issue of establishing legal parentage in surrogacy arrangements is of paramount importance. Essentially, in surrogacy arrangements, we are seeking a method of establishing parentage that is different from the natural and traditional forms such as a couple having a baby, or an adoption.
In order to satisfy judicial authorities, the gestational surrogacy contracts must be thorough, detailed, and fair. The intended parents and the surrogate both have rights and have a say in how various issues of the surrogacy arrangement will be handled. Below is an excerpt from my presentation that discusses how the intended parents and the surrogate have equal input in determining how many embryos will be transferred.
Embryo Transfers – Agreement Regarding Maximum Number of Embryos
The number of embryos to be transferred at the time of transfer must be decided by mutual agreement with serious consideration to the reproductive physician’s advice. At the time the parties enter into the gestational surrogacy contract, they should have a mutual idea of how many embryos may be transferred. For example, if the intended parents wish to maximize their chances to conceive twins or even triplets, they will most likely wish to transfer at least three embryos. On the other hand, if the intended parents want to have only one baby, then they will transfer only one embryo, or most likely, not more than two embryos.
The gestational carrier must be part of this decision-making because she may not wish to carry a multiple pregnancy and that must be known at the outset. If she does not want a multiple pregnancy or does not want to carry more than twins, AND if she is opposed to selective reduction, then she may request a transfer limit of only two embryos.
This must be discussed with the physician because the quality of the embryos is also an issue. That is why the number of embryos to be transferred may change at the time of transfer, depending on the physician’s advice as it relates to the quality of the embryos.
In terms of the number of embryo transfers to be attempted, that is also usually addressed in the agreement. As a standard, contracts usually state that the parties shall attempt at least three transfers. It should be noted however, this provision really has to do with the intention of the parties and is not legally binding. Surrogacy agreements almost always have provisions for parties to terminate the contract before a pregnancy is achieved. Reasons for termination of the agreement vary, e.g., the physician deems that the carrier needs to be replaced; the parties decide that they do not wish to work together, the carrier’s circumstances may change such as health, residence, etc.