Surrogacy Law

To build their families, many individuals and couples use surrogacy and third-party assisted reproductive technology (ART). This overview discusses what third-party ART is, and the different types of factual and legal situations one may encounter. Third-party ART can be very complicated, and the law is unsettled. Although New Hampshire has one of the most progressive surrogacy laws in the country, there are still potential pit falls, so it is imperative for all parties to have independent legal counsel who is competent in the field of third-party ART law.

Assisted Reproductive Technology (ART)

Medical advances have allowed individuals and couples to build families through different types of ART. ART is any medical procedure that manipulates sperm or eggs to achieve a pregnancy. ART is a rapidly changing field, and the law is having difficulty keeping pace with all the scientific changes. ART is used by couples with infertility, as well as LGBT couples and individuals who want to be parents. Sometimes a third-party is needed to achieve a pregnancy. A third-party may be a gamete donor (sperm or egg), a gestational carrier (also referred to as a surrogate) or even an embryo donor. When a third-party is needed to achieve a pregnancy, that party and the potential parents should be represented by an attorney.

Egg Donation

Females with infertility issues related to egg quality, and gay males, will both need to use an egg donor. Sometimes the donor will be a personal friend or relative (known donor), but more often, a matching agency is used to find a donor. It is possible for the match to be known or anonymous, and even something in between, with agreements reached about the level of future contact.

Once a match is contemplated, the intended parent(s) should meet with a lawyer who should draft a contract that details the agreement between the parties. The egg donor will have her own attorney, who should review the contract and should negotiate its terms. The contract should cover many important areas including, inter alia, medical and psychological testing of the donor; what, if any, information about the donor will be relayed to the intended parent(s); the donor’s agreement to follow medical instructions; compensation of the donor; and future contact between the parties. Equally important to all parties are parental rights. The contract should clearly state that the donor does not have any parental rights or responsibilities to any child(ren) resulting from fertilization of the donated egg(s), and that the intended parent(s) assumes all parental rights and responsibilities to any child(ren) that may result. Once the contract is signed by all the parties, the intended parent(s)’s attorney sends a Letter of Legal Clearance to the fertility clinic so that the egg retrieval may be scheduled.

Embryo Donation

In Vitro Fertilization (IVF) is used to fertilize an egg with sperm outside the body, creating an embryo. When individuals and couples go through IVF and have completed their family they may still have additional frozen embryos. In deciding how to dispose of the embryos they may choose embryo donation. This is a complicated process which includes several steps, including but not limited to, obtaining medical, psychological, and legal clearance. An initial step in obtaining legal clearance, is determining if the embryos were created with donor eggs. If they were, then it is necessary to obtain consent from the egg donor. Once consent is obtained, the intended parent(s)’s attorney should draft an embryo donation agreement. Like an egg donation agreement, the contract should address parental rights, disclosure, and future contact between the parties. Once all of the parties have signed the contract the embryos become the property of the intended parent(s). The intended parent(s)’s attorney should then issue a Letter of Legal Clearance to the fertility clinic, which allows the donors to proceed with having the embryos transferred to the clinic.

Surrogacy

For gay males, and women with an inability to carry a pregnancy, a surrogate may be needed to carry a baby. There are different types of surrogacy:  traditional and gestational. A traditional surrogate utilizes her own eggs and therefore, passes her genetics to the child. A gestational surrogate or carrier has an embryo transferred to her uterus that has been created with either the intended mother’s egg or a donor egg. In some states and in other countries surrogacy is illegal. These hopeful parents will often seek a surrogate in a “surrogacy friendly state,” or where permitted, enter into a compassionate surrogacy arrangement which means the surrogate is not financially compensated.

Similar to egg donation, intended parents may select a surrogate who is a close friend or family member, or use a matching agency to select a surrogate. Although some intended parents conduct their own searches through social media, advertisements and even through attorneys, a good matching agency can be beneficial. An agency acts like a concierge and helps the parties through the entire process. Regardless of how the match is made, the potential carrier should have both psychological and medical screenings.

Once a surrogate is selected the parties will retain attorneys and negotiate the terms of the surrogacy contract. The intended parent(s) generally pay the legal fees for the surrogate’s attorney. The contract should address compensation, insurance coverage, bed rest, termination of the pregnancy, selective reduction in the case of multiples, maternity clothing, the intended parent(s)’s presence in the delivery room, post-delivery visitation, and much more. Once the contract is signed, the intended parent(s)’s attorney should issue a Letter of Legal Clearance to the clinic that advises the medical staff that a contract is in place.

New Hampshire’s Surrogacy Law

In 2014, the New Hampshire Legislature updated the state’s laws relative to gestational surrogacy to reflect the advances made in ART. The declared purpose recognized that New Hampshire’s laws should keep pace and remain relevant to the needs of New Hampshire families. The law ensures consistent standards and procedural safeguards for the protection of intended parents and gestational carriers, and equally as important, it provides consistent standards and processes for the future children. The law also sets forth the minimum necessary components for a gestational carrier agreement and, arguably most importantly, recognizes that gestational carrier agreements are valid and enforceable contracts.

New Hampshire law clearly states that egg donors, sperm donors, gestational carriers, and the spouses/partners of gestational carriers, are NOT the parents of a child conceived as a result of ART and a gestational carrier agreement. Upon the birth of the child, the intended parent(s) has physical custody and sole responsibility for the child.

Prior to any medical procedures to impregnate a gestational carrier, the intended parent(s) must have a legal consultation with independent legal counsel. The attorney must advise the intended parent(s) of the potential legal consequences of the contract. The intended parent(s) also must execute or amend his or her estate planning documents to name a guardian for the future child(ren). This is critical to protecting the carrier and child(ren) in the event that the intended parent(s) dies prior to the birth of the child(ren).

Prior to any medical procedures, a gestational carrier in New Hampshire must:

1. Be at least 21 years of age;
2. Have given birth to at least one child;
3. In anticipation of pregnancy, complete a physical medical evaluation;
4. Complete a mental health consultation; and
5. Along with her spouse/partner, have a legal consultation with independent legal counsel.

If the gestational carrier has a spouse or partner, that person is also a party to the contract and must agree in writing to follow the obligations in the contract. By law, the contract also must address how decisions will be made regarding termination of the pregnancy.

Parentage Order

New Hampshire’s law also provides a legal procedure for the intended parents to obtain a court order declaring that they are the parents prior to the birth of the child(ren). This is called a parentage order. The parentage order will result in the intended parents’ names being on the birth certificate. At birth, the hospital will give the baby a wrist-identification band that matches the intended parents, and the intended parents are treated the same as any other parent and will have full access to their child(ren).

The attorney for the intended parents will prepare the Petition for Parentage Order and submit it, along with all the necessary supporting information, to the appropriate Circuit Court. Within 30 days of the filing, the judge must grant the petition. However, if the judge finds that the parties did not substantial comply with the law, or if the judge feels additional information is needed, a hearing will be scheduled to address the judge’s concerns.