Legal Procedures in the Practice of Surrogacy – Paula Mahan, Attorney at Law

Paula Mahan, Attorney at Law, Mahan & Mahan

Section I: Early History

Hello, my name is Paula Mahan. I am an attorney licensed here in CA and I practice in a very limited area of Family Law. That limited area is the law that supports a highly specialized field of medicine. The medical field is called ART… Assisted Reproductive Technology. Today, ART is the new frontier in infertility treatment , and the law that I practice strives to do 2 things: (1) to bring these innovative technologies into the mainstream of our society so they become widely available, and (2) to give legal recognition to the children born through the use of these technologies.

Let me pause here to give you some context…who I am and how I got involved in the law of ART. I graduated in 1978 from Hastings College of the Law. Hastings is part of the University of California system, and is located in the heart of downtown San Francisco. I took and passed the Bar that same year. My first job out of law school was as a Deputy District Attorney for the County of Los Angeles. I was a criminal prosecutor in a very hectic job. 16 hour days, back to back trials…an unsustainable career for someone who also wanted a family.

So, after a period of time I left there and went into private practice with my husband. Part of our new practice involved the full gamut of Family Law, including the good old divorce/custody/support wars. Through this phase of the business, I met a small group of people at bar association functions , professional society lunches and so forth, who were talking and thinking “out of the box” about infertility, and how to fix it. Some were doctors, some were clinic staff, and some were fledgling agencies doing egg & sperm donation and surrogacy, and trying to link into the clinic businesses. The more I learned, the more interested I became. I realized that what they were thinking, talking and doing, even though it was servicing such a small group of people at that time, was ultimately going to change how our culture and our society came to view the sacrosanct “parent-child relationship.”

In the mid 1980’s this whole movement was dealt a harsh blow by a disastrous surrogacy case arising out of New Jersey referred to as the Baby M case. I will give you a great deal more information about this “train wreck” in Video #2. I will also tell you about the huge strides we have made in surrogacy in California as a result of seminal cases that came down in the 1990’s. But at that time, Baby M was truly a downer. Nevertheless, surrogacy advocates pushed forward seemingly undaunted and by the late 1980’s I was fully committed and involved in ART law in California.

Today, in addition to surrogacy, the field of ART encompasses egg donation, sperm donation, and the new battleground in the war on infertility, embryo donation. But back then, few people knew what these things were and those who had heard of them found them threatening and upsetting. Change of any kind is not easy. We are trying to change hundreds of years of thinking about how one becomes a parent. It is proving to be a long uphill battle.

Traditionally our society has only known two types of parents: those who have kids the good ol’ fashioned way, and those who adopt. Adoption has never been the path first chosen. Adoption was always a last resort. Those who did it had such an enormous drive to become parents that they were willing to endure the public exposure, and the humiliation of their infertility. But the most painful concession was their willingness to give up their own dreams, and “settle” for parenting someone else’s child.

Part of my personal objectives in this “war” is to rid society of the “taint” of infertility. It should not be shameful. It is just a medical condition… like an allergy to peanuts!

So back to the late 70’s. Momentum was slow…some gains, some big setbacks. Sperm donation was always easily available. California had passed Family Code7613, known the sperm donor statute and it has been on the books for decades. As long as all the consents were properly signed, and all procedures were done in a doctor’s office, the process was pretty much bullet proof. Sperm donors never had to worry about being saddled with parental responsibilities for children they fathered. The statute stated very clearly that the recipient automatically became the legal father. It was nice and clean and a simple signed release terminated all of the sperm donor’s legal rights.

Egg Donation was not on the radar screen yet, we’re talking about the late 1970’s…as far as the consuming public was concerned. The medical technology in egg donation was not good enough and not many doctors were experimenting with it. Surrogacy did grind on, mostly the artificial insemination kind. But in AI (Artificial Insemination) surrogacy, the surrogate was both the genetic mother and the legal mother by virtue of having given birth. The couple never knew until they had gone all the way through the pregnancy with the surrogate, if she would actually give them the baby. There were no laws that gave them any right to require her to do so.

Eventually egg retrieval did become more commonplace, but the process was IVF using the eggs of the infertile intended mother, merged with the sperm of her husband (or an anonymous donor) and transferred back to the Intended Mother to carry. Success was spotty and very expensive. The technology was learn as you go and often a couple had to do many IVF cycles before achieving a pregnancy, if ever. The process was tedious and expensive. The eggs of the Intended Mother were suspect and were most likely the cause of the couple’s infertility. If a pregnancy was achieved, there were often early miscarriages, which was a totally separate and independent cause of the couple’s infertility.

From the late 70’s through the end of the 80’s big strides were made in medical technology. Clinics were perfecting the IVF process. They found they had much more success when retrieving eggs from a younger, fertile donor. The fetus was carried either by the Intended Mother, or with increasing frequency, a surrogate mother. The genetic father was most often the intended mother’s husband. California was way out on a limb during this time period…pushing forward with the medical technology, without any law in place protecting the couples in these arrangements.

Lawyers labored in the dark during this time. We were burdened by the impact of statutes in the family code that were not intended for surrogacy cases. The biggest offender was FC 76 10. It was a statute that gave voice to the obvious presumption that the woman who gave birth was the child’s legal mother, and made it a hurdle we had to overcome in surrogacy cases. But the only law we had available to us were the stepparent adoption laws. Stepparent adoption was a very long process, taking around 6 mos. to complete, and we still had to rely on the surrogate to consent to the adoption to make it a success. This made the whole arrangement terribly stressful for the couple, and we just had to find a better way.

The task of finding a better way fell to the ART lawyers. Much as we love to hate them, lawyers have a role to play. In ART we are the oil that makes the engine run. Doctors can be out there creating babies in all kinds of unconventional ways but they need lawyers to mainstream these babies back into society. We had to be the interface between these new ways of creating babies and the old ways of thinking about parents and children—thinking that was very resistant to change.

So, we formed lobbying groups and approached the legislators in Sacramento. In 1992 we got state Senator Diane Watson to sponsor a surrogacy bill that held great promise. It was intended to serve as a platform, or a blueprint, for the whole process, start to finish. Lawyers had labored away for years in legislative committees carving it out of whole cloth. It was an innovative, outside the box, game changer. What eventually happened to it, was never anticipated. This too will be part of another video.

The historical perspective of the evolution of ART from the early seventies to the present is riveting. It is full of medical-legal drama, giddy excitement, painful setbacks, and a million anecdotal experiences both good and bad from all those caught up in the maelstrom of cultural change. This will be the subject of a future video presentation and will take us forward thru the last 35 years to the present state of the law. At the same time, I will explore with you how we use this law to obtain the “pre-birth order.” The PBO levels the playing field. It brings new biological parents and new ART parents to the same happy starting line, and eliminates the heartbreak and shame of infertility.

But for now we are going to jump ahead to the modern day Surrogate Agreement…that long and intimidating, but very essential document that opens doorways into the exciting world of Artificial Reproductive Technology.


Section II: The Contract

Why do we need surrogacy contracts? And why are they so darn long? Actually we use contracts in all types of ART – sperm donation, egg donation and embryo donation, and surrogacy. But for now we will focus on the all important SURROGATE AGREEMENT. We need surrogate contracts for several very important reasons:

A. Documents the Parties’ Intentions

The appellate courts who decided the three surrogacy cases, relied heavily on the surrogate contracts to discern the mind set of the parties when they entered into this arrangement. They needed this information in order to analyze the claims made by both sides much later on in the litigation case. Courts wanted to know who was not telling the truth. Who was reneging on the promises made to the other party at the time the contract was signed? Who had conveniently changed their minds in order to accrue a greater benefit than originally bargained for? This is the kind of analysis the court will make in any contract dispute.

Along these lines, the courts have told the attorneys, through the language of the rulings, that in all future contracts they want these “intentions “ clearly spelled out. More specifically, they want to see that the lawyers had advised their clients about the law of surrogacy, that the clients (the parties) understood and accepted that law, understood and accepted the rights and responsibilities of both sides in the contract, and agreed that their contract would be governed by these laws. To that end, they wanted to have clear statement that the parties had submitted to the jurisdiction of the California courts for the resolution of all disputes. In the clear language understood by non-lawyers, this meant that the surrogate would have no parental rights to the child, no right of visitation, no right to yearly pictures etc. , no right to contact of any kind, that the child will never be found to be “her” child at any time in the course of this arrangement, and that no adoption will be required.

B. Separate Attorney Representation

Judges want to make sure it was an “arm’s length transaction” meaning that no one had a bargaining advantage and could pressure the other party into doing something unfair or unwanted. Courts wanted to satisfy themselves that there was no predatory behavior in the mix and that the contract was freely entered into by consenting adults. For this inquiry the court will want to be assured that the parties were separately represented by independent attorneys. Again we see here that lawyers actually have some usefulness! They are there to provide a protective barrier, a line of defense against future litigation. They will make sure that their clients were not induced to enter this contract by fraud, misrepresentation or any kind of improper enticement to enter the contract.

C. Documents the Time Line

I am sure you are asking yourselves, what the heck does that mean? Well…this addresses an unfortunate situation that first became public in mid 2011. The incident has deeply affected the entire ART Bar, meaning all of us who practice in Reproductive Law. One of our own, in cahoots with another lawyer, out of state, wandered off the straight and narrow into what has provocatively been called baby selling. Without going into all the gory details, babies who were not products of legitimate surrogate arrangements were transferred into the hands of desperate parents and the legalities were processed through the courts as though they were surrogate babies. The criminal activity in this arrangement was in part revealed by inconsistencies in the timeline……Babies could not have been created in the manner alleged in the paperwork filed by the court because the timeline just didn’t fit. Angry backlash coming from the courts has spawned dark suspicions about all ART lawyers, and has created retaliatory and punitive new rules and regulations on where and how the PBO (pre-birth order) can be obtained.

That court judgment (the PBO) is the heart and soul of the surrogate arrangement. It establishes the petitioners as the legal parents, and instructs state agencies, like Vital Records (that creates the birth certificate) to recognize the Intended Parents as the child’s legal parents. It also officially terminates any right the surrogate or her husband might have been granted by operation of law. (All of this will be explained in detail in later videos when I discuss current California law and how it operates to get the PBO.) When we file for the PBO, we now have to “lodge” the contract with the court so they can make sure that all events follow sequentially and logically from the signing of the contract until the birth of the child. So, if the court documents say the contract was signed in January, med procedures started in March, the surrogate conceived in May and the baby was born the following February, the contract, which predates all of these events better be consistent with that timeline. So, the contract validates the judgment documents, and vice versa.

Now you can appreciate the importance of the contract. It has to be prepared by a highly experienced lawyer with expertise in ART law, and must contain all the parties intentions, all details of the arrangement (including financial arrangements) , and a full explanation of existing law. It cannot be prepared safely by non-lawyers from a one size fits all “blueprint” you get off the internet.

Besides all of the legal requirements the contract must have, what else should it have? It should instruct the parties on how to handle anomalies, or emergencies, that are a usual and customary events in any pregnancy. But because of the parentage issues, financial issues etc. the parties need guidance on who makes which decisions and who is financially responsible for covering the extra costs that these events will generate. For example:

(1) Something goes wrong in the second trimester.

The surrogate is suddenly bleeding and cramping and she is at home alone. It is 1pm and she has to pick up her kids at 3pm. How should she handle this? Wait until after she gets her kids home to deal with the problem? NO! The contract directs her to call the agency immediately, then an ambulance. The agency will alert the surrogate’s family to pick up the kids or will send out one of their own to do the pick up. All this will have been discussed and plotted out in advance. Her OB will be notified so he can visit her in the hospital. If he puts her on disability, the agency will know who to apply to, and how to apply for, disability benefits (if she is eligible). The agency will make sure that she gets the cleaning, shopping and childcare that she needs in order to remain on bed rest. The agency will notify the attorney about this situation and will send along an itemization of expected costs so domestic helpers (even if they are family or friends) will be paid for their services during the entire disability period. This will be part of Intended Parents’ unexpected expenses that the contract already warned them, might occur.

(2) What if by ultrasound, or by amnio, the baby is discovered to have a serious condition that will substantially affect its quality of life?

The doctor recommends abortion. Is this the time for the agency or the parties to discover that the Intended Mother is pro-choice and the surrogate is pro-life? NO! Whose decision is it to make? The contract will spell all this out, including the specific medical circumstances that determine who is to make the decision whether or not to abort. Medical care, recovery time, financial costs and reimbursements, etc. will all be anticipated by the contract, and approved by the parties well in advance of this contingency, just as it would have been for the example above on disability.

(3) Should the agency allow the Intended Parents to eliminate some elements of the program in order to save money?

What if the client wants to skip psych screening and counseling on the surrogate in order to save money? The answer is NO! A good agency is successful because  the agent has learned by trial and error over the years what provides the greatest protections for her clients. I learned years ago from an agency I used to accept referrals from, the terrible cost of sacrificing quality and control…for money. The agency was desperate to find a surrogate for a couple who was about to sign their retainer and pay their fees. The agency relaxed their screening standards and got a psychologist to clear a surrogate that they knew from past experience was a trouble maker. In late pregnancy under the stress of carrying multiples, the surrogate’s “aversion to authority “ took over and she began to exhibit “defiant” behavior. Balking against all the advice she was getting from her doctor, her parents, and the couple, she disappeared for long periods of time, told no one where she was, refused to go to her doctor appointments and told her doctors not to discuss the pregnancy with the Intended Parents. It was a nightmare, especially for the couple. This surrogate had done the same thing in a prior surrogate arrangement but in this case her defiant behavior had escalated to an alarming degree. Personality traits of this kind are easily detectable by a good psychologist and would have totally disqualified her. In the end it all turned out ok. The babies were born healthy and the couple took them home without incident, but the potential for disaster took a terrible toll on the couple. For all of these reasons, the integrity of the program must never be compromised.

Here is one more:

(4) Another agency, which is no longer in business, was run by an agent who was simply unqualified for the substantial responsibilities the agency must undertake.

The agent is responsible for referring the parties to appropriate experts to obtain proper medical insurance. The surrogate worked outside the home and her employer was self insured. The agent didn’t bother to read the policy booklet which clearly stated it would not cover a surrogate pregnancy. Self- insureds never do. The surrogate conceived triplets and the insurance administrator advised the surrogate that they would not cover any part of her surrogate pregnancy. Under the circumstances no replacement coverage could be obtained. She wound up bedridden and in the hospital for the last two months of her pregnancy. The hospital bill alone was $250,000. I am not going to tell you what happened after that. You’ll have to read the book or see the movie!

For all of these reasons, and many more, the contract is an essential part of a surrogacy arrangement. Not only does it cover the law of surrogacy, the rights and responsibilities of the parties to each other, all the financial arrangements, and the necessity of proper insurance, it also plans in advance for the usual and customary problems and contingencies that could arise. For the courts, it confirms separate attorney representation, preserves the timeline and instructs the courts on the parties’ intentions. In order to wrap yourself in all these protections you must start by choosing the right agency. One that has the highest integrity, a long track record of success, a favorable reputation among ART doctors, and decades of proud and happy clients. In my view, Building Families run by Carol Weathers is the best of the best.


Section III: The Clearance Letter

Let’s look at a second important document, this is the Clearance Letter. This is the last step in the contract phase before you move on to the medical protocols. It is a letter I write, as attorney for Intended Parents, to the clinic that will handle all of the ART medical procedures. It assures the doctors that the legal phase is finished, that the contract is fully executed, that the parties were separately represented, understand the law and all of their rights and responsibilities, and have entered into the contract voluntarily with all appropriate intentions in mind. It also advises the doctor that the Intended Parents have assumed responsibility for all of the ART treatment for their surrogate as well as for themselves. This declaration of responsibility gives doctors “permission” to seek payment of the surrogate’s medical care from the Intended Parents. Lastly, it lets doctors know that all that could be done, has been done, to protect the parties, the agencies, the clinics and the attorneys from any misunderstandings that could blossom into litigation further on down the line.

In the early days, doctors routinely requested that they be sent a copy of the executed contract to keep in their files. This was totally inappropriate as the contract is a proprietary non-public document. I started sending doctors clearance letters instead of contracts and I am happy to report that it is now a universally accepted substitute!

End of Video #1