Independent Surrogacy: DOs and DON’Ts for a Smooth Journey

indy surrogacy new hampshire do's don'ts

There are many reasons intended parents and prospective surrogates choose an independent surrogacy arrangement (often called “indy” surrogacy). Perhaps you are matched with a friend or family member and don’t feel you need an agency to manage the details. Or you may have matched with someone through a surrogacy website and simply prefer to manage your own journey. Whatever your reason for pursuing an independent surrogacy, you should keep the following tips in mind for a smooth journey:

DO understand that bringing your attorney on board at the outset is critical to avoid potentially expensive and disastrous missteps. When you are not receiving guidance from an experienced agency, your attorney can fill in the legal gaps, which is especially important in a state like New Hampshire where the law has very specific requirements for making a surrogacy arrangement valid.

DON’T try to skimp on costs by foregoing lawyers and attempting a do-it-yourself surrogacy contract. Under the laws of many states, such as New Hampshire, your contract may be invalid if attorneys are not used. This means you may lose important rights such as the ability to obtain a pre-birth order (“PBO”) placing the intended parents’ names on the initial birth certificate and relieving the surrogate of responsibility for the baby after birth.

DO understand that you are giving up the inherent safety net of having an agency working to facilitate a smooth journey. While often friends and family members feel comfortable working without this safety net, it can be tougher for participants who haven’t known each other for a long time to feel comfortable. It’s OK to decide that independent surrogacy is not within your comfort zone.

DON’T proceed with any match where the prospective surrogate is under 21 or has not had at least one child of her own. These minimum requirements, which may be set by state law or your physician, are designed to ensure that surrogates are mature enough to make informed decisions for themselves. As with do-it-yourself legal contracts, the consequences of not following these basic requirements can be dire and expensive.

DO respect each other’s personal choices. If your surrogate doesn’t already eat a vegan diet, don’t expect her to change to accommodate your preferences. If your intended parents want a more business-like relationship, don’t expect that to change during the pregnancy. And remember that it is OK to walk away from a potential match if it’s just not the right fit for you.

DON’T agree to compromise your personal values. If you have strong feelings about abortion, for example, nothing good can come of agreeing to terms in your surrogacy contract that don’t reflect your personal viewpoints. FYI: New Hampshire’s surrogacy bill addresses this in a unique and effective way by requiring that the written surrogacy contract set forth how decisions about abortion will be made during the pregnancy. This forces everybody to think these critical issues through before there is a pregnancy.

DO understand that a successful independent surrogacy journey is a lot of hard work on everyone’s part. Be prepared to make this investment in time and effort, to remain flexible, and to accept the inevitable ups and downs inherent in any surrogacy arrangement.

DON’T ignore these surrogacy red flags in the hopes that everything will work out fine. Potential problems should be addressed head on and, if they cannot be resolved, it’s important to accept that some matches are not meant to be.

DO be extra watchful for scams. Unfortunately, there are some women who prey on desperate intended parents in an attempt to scam them of money. Conversely, prospective surrogates need to be watchful for intended parents who have been rejected by agencies due to their inappropriate and inflexible expectations for the arrangement.

DON’T assume the surrogate’s insurance will cover this pregnancy just because her previous pregnancies were covered without a hitch. Your lawyer can help you understand your options for handling the medical bills.

DO make sure your surrogacy contract covers all the specific financial terms of the arrangement, rather than relying on simply working things out as you go along.

DON’T forego the escrow account just to save money. While some friends and family members may feel comfortable enough to handle payments directly between themselves, most independent matches should proceed using an escrow account for the surrogate’s financial protection.

You can also read more about mistakes to avoid in independent surrogacy arrangements over at surrogacy consultant Sharon Lamothe’s blog.

New Hampshire lawyer Catherine Tucker