In August 2021, I had the opportunity to chat with Kathleen (“Casey”) DiPaola, a surrogacy and adoption lawyer based in New York (also serving New Jersey and Vermont). Before our meeting, I asked our surrogacy community what questions they had for her about the surrogacy process. Read the questions and Casey’s responses down below!
The New York law states that at least one of the Intended Parents must live in New York. How common is this?
The New York Child Parent Security Act was passed in the middle of the last night of the legislative session in April, 2020 after a lot of back and forth. This written requirement that at least one of the intended parents must live in New York is actually probably a mistake. The original intent was to state that either the surrogate or one of the intended parents must live in New York, in order to be as accommodating as possible. The requirement that at least one of the Intended Parents must live in a state is rare, because it is usually the state laws where the surrogate lives that matters and that’s the state law that is used.
Are there any laws limiting surrogate compensation?
Laws on surrogate compensation depend on state (some states like Michigan do not allow compensated surrogacy). Generally speaking there isn’t a law the specifies the maximum numerical amount of compensation, but there might be laws that allow compensation to the surrogate as long as it is reasonable and negotiated in good faith (e.g., law in New York) or that allow for compensation tied to reasonable living expenses (e.g., law in New Jersey).
Have you noticed any differences in contract terms between surrogacies facilitated by agencies vs. not?
Not really. The list of items and decision points in a surrogacy contract are standard across all surrogacy contracts. Of course, each contract is unique and may include different conditions and fees, but I will usually go over the same list of clauses with all of my clients. So in the end, there won’t be much of a difference between a contract where an agency is involved vs. one without.
However, some surrogacy agencies do have pre-negotiated fees and allowances with their surrogates. We will generally use those numbers in the contract so there is less negotiation on those issues
Have you seen a lot of issues of the surrogate's medical insurance not covering her pregnancy-related medical expenses?
Many people don’t know this but New York has great laws when it comes to medical insurance. According to the Department of Financial Services, all insurers who provide medical insurance for pregnancies generally must cover surrogacy pregnancies, with very few exceptions. Even Medicaid in New York has to cover surrogacy pregnancy and pregnancy is considered a qualifying event to obtain a policy on the marketplace outside of open enrollment.
Other than that, I always recommend that intended parents hire the services of ART Risk Solutions or International Fertility Insurance to review their surrogate’s insurance. For a relatively small fee, these companies will review the policy carefully to see if the surrogate’s insurance will cover a pregnancy. I have not seen a case (knock on wood!) yet where one of these insurance reviewers were wrong.
What aspect of the contract creates the most issues?
Surprisingly, it tends to be the lower ticket items – for example, the amount of the monthly allowance or whether receipts are required for reimbursement for small ticket items – that can cause the most back and forth during the contract phase.
Should we have our attorney review our agency contract before signing?
Yes, absolutely. My general advice is to get your surrogacy lawyer on board ASAP – even before looking for a surrogacy agency. I think it is important for IPs to shop around and find a lawyer that they really connect with. Your lawyer can educate you on the process and help you determine what you need from an agency and also talk to you about the option of an independent journey and whether that might be a good option for you.
Is there a legal obligation to prove medically why the IP is unable to carry?