Once upon a time not so very long ago, having children using a surrogate was a reproductive option on the fringes… a strange, new frontier where would-be parents hired a stranger to carry their child for them.
Today, surrogacy has gone mainstream, as evidenced by the long list of celebrities who’ve openly chosen surrogacy to have children, from Jimmy Fallon to Tyra Banks to Ricky Martin to Nicole Kidman. In the United States alone, gestational surrogacy grew a whopping 89% from 2010 to 2014, a figure that multiplies with every new estimate.
Why Foreign Surrogacy Instead of Staying Home?
So if surrogacy has become yet another path to creating the modern family, why do so many would-be parents go abroad to find a surrogate, despite the dangers and uncertainty of dealing with foreign governments and unstable surrogacy laws?
“Economics drive many of the decisions. The short answer is Intended Parents think they’ll save money,” says Florida-based Reproductive Attorney Leslie Schreiber. “Costs for surrogate, medical, legal and agency fees can run over $100,000, so would-be parents go abroad. ”
In some cases, would-be parents are scared off by obstacles posed by their home states — like disallowing singles, requiring couples be married, banning compensation to surrogate mothers, or outlawing surrogacy altogether.
But leaving the U.S. means “you don’t have the constitutional protection we have here”, says Schreiber
A glaring example was recently chronicled by the New York Times. Michael Theologos, a single man from New York, had his newborn son taken by Mexican authorities for “breaking the law” after local officials decided to “outlaw surrogacy for foreigners” effective immediately. His child would be born just weeks later.
“It was the end of the world for me,” said Theologos, who went through three lawyers before getting a legal Hail Mary from the reproductive rights advocate Information Group on Reproductive Choice. Six weeks passed before the New Yorker got his son back.
Florida: The Sunshine (and Surrogacy-Friendly) State
Ms. Schreiber says stories like these are precisely why she’s encouraging would-be parents (or the legal term “intended parents”) to stay in the USA and choose a surrogacy-friendly states like Florida or California and most recently, Washington, D.C.: “In foreign countries, you can enter the arrangement legally, then mid-pregnancy, surrogacy becomes illegal.” Suddenly, the money parents thought they’d save by going abroad goes to lawyers instead.
In the case of Theologos, the single father spent $90,000 during his legal battle in Mexico, taking out a loan against his apartment to afford it. His advice? “It’s better to find the money and do it here.”
Attorney Schreiber adds “It’s safe. I advise my clients to be their own health advocates, do their research and be well-informed. People who do their research, who are their best advocates, know about Florida.”
In a process involving so many people and intricate pieces, her role as the attorney is to help keep everyone and everything working together smoothly — including a team of doctors, nurses, a psychologist, family members, insurance brokers, agency reps, parents and surrogate. But the most important job of all: protecting the future parents, the surrogate and the baby.
“A lawyer’s main job is drafting a contract that protects the parties. A contract should reflect a meeting of the minds,” explains Ms. Schreiber, “It shouldn’t be litigious. It’s about people coming together to help each other achieve a common goal.”
And it’s this meticulous process coupled with American law that prevents nightmare surrogacy scenarios that capture headlines abroad.
A Reproductive Lawyer like Ms. Schreiber helps facilitate the process, either drafting the surrogacy contract or reviewing it for a surrogate, and helps guide future parent(s) or surrogates through medical insurance decisions, agency agreements, and yes — even doing a little hand-holding “because it’s such an emotional time”.
The expertise of Ms. Schreiber also becomes critical in arrangements that require a genetic connection…Will an egg or sperm donor be required? Will the surrogate herself provide genetic material or carry the intended parents embryo(s)? In this complex world with multiple scientific possibilities, clearly laid out needs and plans and legal protections are essential.
“After all,” says Ms. Schreiber, “you are doing all of this to protect that baby before the day he or she is even born. It’s not just good surrogacy. It’s good parenting.”