Pitfalls of US Citizens Engaging in Surrogacy Abroad Melissa B. Brisman, Esq. November 17, 2017 Duke Law/CAP Conference Melissa B. Brisman, Esq., LLC Montvale, NJ

TYPES OF SURROGACY TRADITIONAL-SURROGATE IS BOTH LEGAL AND BIOLOGICAL MOTHER GESTATIONAL-SURROGATE IS NEITHER LEGAL NOR BIOLOGICAL MOTHER

Why a Gestational Carrier rather than a Traditional Surrogate It is safer for couples to use both an egg donor and a gestational carrier A gestational carrier is not genetically related to the child that she is carrying Without a biological connection to the child, a gestational carrier is less likely to succeed in asserting any legal rights to the child she carried

Pre-Birth Order Ideally, the client should contract with a gestational carrier who lives or intends to deliver in a location where the person/couple can obtain a pre-birth order recognizing one or both as legal parents

Pre-Birth Order Without a birth order, the gestational carrier will be recognized as a legal parent on the child’s birth certificate until her rights can be terminated either through a termination proceeding or an adoption

PRE-BIRTH JUDGMENT PRE-BIRTH JUDGMENT POST BIRTH ADOPTION-SOME PEOPLE STILL PREFER AN ADOPTION INSTEAD OF A PRE-BIRTH ORDER

Traditional Surrogacy Has not Changed Much over the Years In the case where the womb and the egg are from the same party, biology still governs

What to Make the Parents Aware of Timing of the arrangement Cost Emotional difficulty A. Support groups B. Counseling Complexity Medical risk Legal risk

State Law Matters Where the parents reside Where the carrier resides Where the carrier delivers

Legal Work Necessary Contract between the parties Birth order to place the intended parents on the birth certificate

Insurance Coverage for IVF Coverage for pregnancy Coverage for the Child

Escrow Account Allows the parents to concentrate on the pregnancy Provides proof of payment in case of dispute

Cross-Border Gestational Carrier Arrangements Many people are entering into cross-border gestational carrier arrangements (i.e., India, Ukraine, Cypress, ) Clients must investigate whether surrogacy is legal in the gestational carrier’s country and whether their sexual orientation and/or use of a gestational carrier could prevent them from returning home with the child

Cross-Border Gestational Carrier Arrangements In India, new laws are being proposed to regulate the country’s gestational carrier industry. The law now prohibits foreigners from contracting with Indian gestational carriers.

Medical Care in The Foreign Country Most surrogacy's are under taken in less developed countries Examine the quality of the medical care The success rate Neo Natal Care if your child is born early

Citizenship Issues Children born abroad without US gametes may have trouble being considered US citizens. Need to ensure your child will be a United States citizen if born abroad otherwise you may have trouble bringing the child to the United States.

Immigration Issues Immigration issues are in constant flux Must examine these issues and the chances they can change midstream.

Legal Issues In the United States the law can not be changed retroactively. In many foreign countries the legal climate can change quickly and without warning leaving options limited if a gestational carrier is pregnant. Insurance, birth certificates, legal parentage all must be examined

Cost Issues Generally US citizens go abroad to save money In the end it may not be cheaper if you calculate travel costs; lost wages; immigration costs If the child is born early or there are immigration issues you can be stuck in the country for quite some time.

CONTACT INFO Melissa B. Brisman, Esq. Melissa B. Brisman, Esq., LLC One Paragon Drive, Suite 158 Montvale, NJ 07645 201-505-0099 201-505-0097 Fax www.reproductivelawyer.com info@reproductivelawyer.com Reproductive Possibilities, LLC and Surrogate Fund Management, LLC One Paragon Drive, Suite 160 Montvale, NJ 07645 Phone: 201-505-0078 Fax: 201-505-0994 www.reproductivepossibilities.com www.surrogatefundmanagement.com Info@reproductivepossibilities.com