Legal Considerations for Donation & Surrogacy

RSC strongly recommends that you understand and protect your legal rights during the third-party services process and consult with a lawyer who specializes in surrogacy issues.

It is in the best interests of all parties to obtain experienced legal counsel to prepare a binding legal contract and to obtain a court order in all surrogacy arrangements.

Typically, the egg donor, surrogate and/or intended parents each have their own lawyers. Your doctor will need a “clearance letter” from your lawyer to confirm that an agreement has been executed by all of the parties.

The purpose of a legal contract

Parentage under California law is governed in most cases by the intent of the parties. A written agreement is the clearest way to state the intention of the parties and address potential questions that may arise down the road such as:

  • Who has the disposition rights to any unused frozen embryos?
  • Are there any limitations on those disposition rights?
  • What is the obligation of an egg donor if she learns of a genetic disease in her family 10 years after the baby’s birth?
  • What if the egg donor or surrogate fails to follow your doctor’s instructions for treatments or procedures?

Without a legal contract

  • Intended parents are not considered the legal parents of the child.
  • The hospital treats the surrogate as the legal parent of the child and all medical records reflect the surrogate as the legal parent.
  • Intended parents are unable to obtain wrist bands from the hospital allowing them to visit with the newborn child.
  • If the court order is not obtained in a timely fashion and the child is born premature and in the intensive care nursery, the intended parents are unable to visit the child.
  • The child is not covered by the intended parents’ health insurance.
  • The intended parents are not named as the parents on the birth certificate and they will have to adopt the child.
  • If the child is born with health problems, the surrogate is the legal decision-maker instead of the intended parents.

What to expect from a lawyer

Your lawyer will draft and negotiate a contract to meet your individual needs and concerns. It will cover the specific obligations of each party and address issues that may arise in the future. Your lawyer will write a “clearance letter” to your doctor to confirm that an agreement has been properly executed by all of the parties.

Concerns about additional legal expenses

Compared to the expenses of fertility care, these legal fees are a relatively minor expense. Most lawyers will charge a flat fee based on the services to be provided so you don’t have to worry that if your situation is more complicated or takes longer to negotiate that you will have to pay more than you budgeted.

Legal Resources

Family Formation Law Offices 
of Michelsen & Cohen, LLP
319 Old Tunnel Road
Lafayette, CA  94549-4133
(925) 945-1880   Fax (925) 933-6807
www.familyformation.com
Amadia Pritchard, LLP
Suzanne Pritchard, Attorney at Law
526 Osprey Drive
Redwood City, CA  94065
www.infertilitylawyer.com
Shelley M. Tarnoff, JD, MFT
83 Castle Park Drive
Oakland, CA 94611
(510) 482-2226  Fax (510) 482-2071
[email protected]
Law Offices of Vorzimer,
Masserman, & Chapman

8383 Wilshire Blvd, Ste 750
Beverly Hills, CA  90211
(323) 782-1400  Fax (323) 782-1850
Tamara Daney, Attorney at Law
100 Leo Way
Oakland, CA  94611
[email protected]
(510) 597-1145
Law Office of Henry F. Lewis
1300 Clay Street, Suite 600
Oakland, CA  94612
(510) 622-7741
www.henrylewis.org
Deborah H. Wald
88 Kearny, Suite 1475
San Francisco, CA 94108
(415) 648-3097 Fax (415) 648-3098
[email protected]
www.waldlaw.net

NOTE: RSC does not recommend or endorse any vendor, physician, tests, products, procedures, opinions, or other information that may be mentioned on this referral list. No representation or warranty is made, either expressly or tacitly, for the completeness or correctness of the information contained herein.