Ask the Expert… US Surrogacy – all you need to know

Melissa Brisman runs a surrogacy practice in the US called Reproductive Possibilities. She started her career as a lawyer and started her business after her own experience of surrogacy. My Future Family talks to Melissa to find out more about international surrogacy in the US.

Melissa: Upon graduation from law school, I married my husband, Dan.  In 1996, we decided we wanted to start our family, but I learned that I would be unable to carry a child.  Of course, we were disappointed, but also very determined to have children.  At the time surrogacy was not widely publicized or accepted in the United States.  It was almost impossible to find any person or entity, on the east coast, able to assist us in locating a surrogate.  I managed most of the process on my own, which ultimately led to the opening of my law firm that handled surrogacy matching.  I realized there was a real need for this type of service as friends and colleagues were referring couples, who like me were having difficulty in their family building efforts.  Eventually,

I left my position at a large law firm where I had been employed and established my law firm, Melissa B. Brisman, Esq. LLC, which handles the legal work associated with surrogacy arrangements, as well as other reproductive law matters (e.g. donor agreements and second parent adoptions).  Years later, I separated the surrogate portion of the business from the law firm and established Reproductive Possibilities, LLC, my full service surrogacy agency.

My Future Family: What changes have you seen in that time?

Melissa: Initially, I found myself working primarily with heterosexual couples, residing in the US, and using their own genetic material to create embryos to be transferred to the uterus of a selected surrogate.

In the last 7 years I’ve seen a huge influx of same sex couples, international clients, and unmarried men and women of various ages.  I have noticed a growing trend in middle aged women (single and married), who may have concentrated on their careers in their younger years and have now decided that they are ready both financially and emotionally to parent a child.

I have also noticed that while surrogacy has become a more accepted practice, it is not without concerns, as not every entity/agency that offers surrogacy services is experienced or even legitimate.  In the US, this industry is not regulated by the government and there are no licensing requirements.  Essentially, anyone can decide to open an agency and begin soliciting clients.  All an entity/agency needs to do is register itself and the name under which business will be conducted.  It is critical that couples and individuals (also referred to as intended parent(s)) proceed carefully, by researching and obtaining references before signing on with any entity/agency.  I believe international couples are most vulnerable, as they may not understand that for the most part, surrogacy is not a regulated industry in the US.  Some states in our country have enacted statutes which set forth guidelines to be followed with respect to the arrangement itself, but this does not relate or extend to an entity/agency that introduces surrogates to couples or individuals wishing to use its services.

My Future Family: what do you recommend people do when seeking a surrogacy provider?

Melissa: First, I suggest that a prospective client contact the Attorney General’s Office and inquire if any law suits or investigations are pending or have been filed against the entity/agency.  Also, a prospective client should check with the Better Business Bureau which exists in the US and investigates consumer complaints.  Additionally, if the entity/agency is owned and operated by an attorney, and several are, one can check with the State Bar Association where the attorney is admitted to practice law, and inquire if any ethics violations have been filed or disciplinary actions initiated.  Let me add that I would be particularly wary of UK intended parent(s) seeking to save money by working with an entity/agency outside of the US.  There have been serious and complicated immigration issues, accompanied by lengthy and expensive legal battles simply to allow a child born via surrogacy to return home with their intended parent(s).

My Future Family: From a legal perspective, what are the difficulties to be aware of?

Melissa:  As I see it, the most significant legal issue surrounds termination of a pregnancy, if a request is made by the intended parent(s) of the child.  Under US law, a woman cannot be forced to either maintain a pregnancy or to terminate one, even if addressed and agreed upon in the written contract executed between the surrogate and intended parent(s). However, proper psychological screening of the surrogate, as well as adequate legal representation can safeguard all involved parties from misunderstandings, disputes, and unwanted consequences.

My Future Family: Why is the US so attractive?

Melissa:  I believe there are four main reasons why surrogacy in the US is an attractive option for intended parent(s).  The first is most definitely US citizenship.  Children born via surrogacy in the US are recognized as citizens of the US, regardless of their parentage.  Therefore, these children can obtain US passports, travel freely, attend college, work in the US and ultimately retire here, if they wish.

Secondly, the laws and practices surrounding surrogacy in the US are beneficial to US citizens and international individuals and couples, alike.  For example, the UK has a 6 week “waiting” period before the intended parent(s) is officially awarded parental rights over the child.

During this 6 week “waiting” period a surrogate could change her mind and decide not to transfer custodial rights over to the intended parent(s), even if a genetic relation to the child exists.  Conversely, in certain states within the US, parental rights to the child are awarded and recognized at the time of conception of the child.  The award of parental rights is granted in the form of a court order making it nearly impossible for a surrogate to retain custody and parental rights over the child should she change her mind and decide she wants to keep the child.

The third reason is the level of healthcare and medical services available to a surrogate during the pregnancy and delivery and to the child once delivered.  Admittedly, US healthcare can be expensive, but it is among the best in the world, and this is very reassuring not only to the intended parent(s), but also the surrogate.  Finally, if an individual or couple needs the services of an egg, sperm or embryo donor, such services are readily available in the US through agencies, clinics or egg banks.

My Future Family: With Reproductive Possibilities what would the first steps be?

Melissa: It takes about 18 months from start to finish having a baby; that is an average.  If a 43 year old woman using her own eggs takes 4 embryo transfers to get pregnant you might be more around the 2 year mark.  But if you are an average couple with good embryos it takes about 18 months.  25-50% of clients get more than one baby so you need to be careful about how many embryos you use for each transfer.

Normally we start with a 2 hour consultation where we go over logistics, this doesn’t have to be in person, we do consultations over conference calls or Skype as well.  We discuss all the potential logistics including preferred location, egg provision, sperm provision, etc.

Normally it takes 4-6 months to find a suitable carrier.

My Future Family: Do you have any advice or tips for people looking into international surrogacy in the US?

Melissa: First, when seeking the services of an agency, I would ask for an estimate of all expected expenses, as surrogacy in the US is likely to cost close to $100,000 ($120,000 if donor eggs are needed).  Most entities/agencies provide complimentary consultations and the cost factor should be readily disclosed during or at the end of a consultation.  Furthermore, a consultation will provide a wealth of information including a sense of the people with whom intended parent(s) will be working, as well as an understanding of the business practices employed.  I strongly recommend that intended parent(s) attend advertised seminars on the topic of surrogacy, research online, or through physicians and other personnel at their selected clinic.  I think it is also extremely helpful to talk to others in surrogacy groups, many of these groups can be found online.

My Future Family: How much time would intended parents need to spend in the US?

Melissa: Often, it depends upon the state where the surrogate delivers the child, but generally, intended parent(s) can expect to be in the US twice during the process.  For the first visit, I would recommend 1-2 weeks, if using their own genetic material or a few days for a male same-sex couple needing to deposit a sperm sample.  Additionally, intended parent(s) may want to come to the US to meet and spend some time with the selected surrogate.  And of course, if at all possible the intended parent(s) will want to be present for the birth of the child, and for that trip I recommend a minimum of 2-4 weeks.

My Future Family: Any other advice to potential intended parents?

Melissa: Ask any entity/agency how many cases they have worked on, as well as the length of time they have been in business.  At Reproductive Possibilities LLC, we manage approximately 200 surrogate journeys per year.

Melissa Brisman is sole owner of Reproductive Possibilities, LLC, an agency that facilitates gestational carrier arrangements, and Surrogate Fund Management, LLC, a company that manages escrow in connection with reproductive arrangements.

Melissa first started helping couples become parents in 1996.  Actually, she was her own first client, guiding and directing the process in which she and her husband, Dan, became parents of twin boys carried by a gestational carrier.  A few years later, they had a daughter carried by another gestational carrier.

As a mother, Melissa is uniquely qualified.  She understands the emotion and concern involved in creating a family and, as a lawyer, has successfully won many cases in this field.  She has helped protect the rights of hundreds of parents who have had miracle babies using all available reproductive technologies.

Melissa is the first attorney to obtain court orders directing that the genetic parents be placed on the original birth certificates of their children born to gestational carriers in the State of Maine, in 1997, and the State of New Jersey, in 2000.  She also argued and won landmark gestational carrier cases before the Supreme Court of Massachusetts in 2001 and the State Supreme Court of New York in 2004, setting legal precedents for birth orders in these states.

Melissa drafts and negotiates contracts for many types of reproductive arrangements including gestational carrier contracts, ovum, sperm and embryo donation contracts and adoptions; works with international couples; finalizes same sex and step parent adoptions; obtains court orders for gestational carrier arrangements to allow the intended parents to go directly on the birth certificate of their child at birth; processes name changes; and reviews insurance books on behalf of intended parents and their gestational carriers.

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