With all the feel-good, change-a-couple’s-life emotion of my surrogacy so far, the truth is that I spent almost as much time on the contract phase alone than the entire time I’ve been pregnant up until this point.
After my medical, psychological, and beit din screenings, and after matching with Vivianne and David, I selected an attorney. There’s a field of law called ART: Assisted Reproductive Technology, and I needed someone with that specialty, specifically licensed in Massachusetts where I’m located. The idea is that as much as the intended parents and I could work things out among ourselves for how we wanted the process to proceed, each side should still have access to someone well-versed in this type of law to represent our respective best interests. In our case, the agency we’re using also serves as the intended parents’ attorneys (disclosed from the beginning and something I felt comfortable to proceed with, but generally speaking not ideal in hindsight).
At the end of last June, just over one full year ago, I received the first draft of our contract to review. Then in December, following nearly six solid months of back-and-forth, it was fully signed and sealed by all parties. In that time Jamie and I picked through 64 pages, single-spaced, outlining every possible detail you never could have imagined about this whole “let’s have someone else’s baby” thing. We tried to figure out what it all meant. We waited for answers to our questions. We sent suggestions for revisions and waited some more. We worried about worst-case-scenarios, we asked for clarification, we tried to get a sense of what was standard.
The contract goes over all kinds of things. For example, it states in no fewer than 17 different ways, that the child born from my womb will not belong to me in any way, shape or form. It covers how establishing parentage works in the UK, and answers questions like what, if anything, makes this contract enforceable? Whose names go on the birth certificate? What would happen if the baby was found to be genetically related to Jamie and me? (Noooooooooo!!!! So much no.)
It articulates everything: how many embryos we’d transfer and how many times we’d try if it didn’t work the first time around, how decisions would be made about terminating the pregnancy if either party felt it necessary, where and when I can and can’t travel during the pregnancy, and a whole lot more.
For the most part, the contractual phase was largely about understanding what the dozens of clauses meant, and looking to my lawyer to find things that, as they were originally worded, were not necessarily in my best interest. Being completely unexperienced with all of this, most of the changes she suggested never would have occurred to me to bring up.
One thing, though, stood out right away as a potential deal-breaker in my mind…
Interestingly, New York is one of a handful of states where most forms of surrogacy are actually completely illegal. Other states have laws that make it not necessarily illegal, but certainly complicated, and often with inconsistent results. Massachusetts is actually among the more surro-friendly states, so I lucked out on that front. But my contract made very clear that, after a certain point in the pregnancy, I was not to travel to New York, New Jersey, or the other “no no” states. If I were to deliver in New York, I was told, all parties involved (us, Vivianne and David, the lawyers, the agency, the IVF clinic) could be found guilty of a felony, and issued fines of up to $10,000, not to mention the likelihood of a long legal battle for Vivianne and David to simply bring their baby home within their custody.
For the most part it was okay with me to stay away from New York as needed. Sure, it would likely be inconvenient, and I didn’t know what I might miss out on for work or otherwise if I did not have the ability to travel to the state where I grew up and where many opportunities lie, but all in all it didn’t bother me. That said… my maternal grandparents (i.e. some of the darn coolest people I know – and I get to be related to them!) are now 93- and 96-years old and live on Long Island. God forbid / puh, puh, puh there was some reason I really needed to be there… I couldn’t fathom not being present.
Before our first conversation with the lawyer, I think I assumed that the contract was boilerplate language – akin to the standard fine print in a cellphone contract: you want the phone? You sign the contract. Thankfully, we were able to figure out a way to be as flexible as possible in the case of real need, while navigating the very real legal issues at play, and I’m glad I spoke up. I quickly learned that these contracts can (and should!) be negotiated until everyone involved is completely comfortable with what they’re signing.
As it’s turned out so far, thank God I haven’t needed to enact any of the negotiated legal flexibilities to travel to New York during this quasi-allowed window. Pretty soon, though, I’ll basically be on lockdown in Massachusetts until my uterus decides it’s time to expel the small subletter within. Eight-ish weeks and counting…
P.S: Medically, my blood tests have all stayed normal and all the ultrasounds are showing perfect growth. Though no one has said it outright, I suspect that we’re out of the woods with this scare. If I don’t write more about it, just assume that all is well. 🙂