Choosing between surrogacy agencies can be complex because agencies often offer different services and operate in distinct ways. Not all agencies provide a comprehensive suite of services under one roof, and the range of offerings may vary significantly. Some agencies may lack in-house legal support, egg donation, or fertility services, permitting intended parents to work with multiple independent providers. Each agency typically offers its unique package of services, making the selection process challenging due to the differences between them.
Furthermore, agencies in different countries, such as Russia, Canada, or the United States, will provide varying services based on their respective regulations and practices. To assist you in making the right decision, this article presents a series of questions you can pose to an agency to determine which services are vital for your surrogacy journey.
Size of the Staff
Ask for a staff list and review the staff list carefully and be bold and ask the agency to explain the list to you. You are looking for these facts:
- Are the staff salaried?
- What percentage of staff are part-time, and which are full-time?
- How long have they been employed, and what experience do they have?
These factors are relevant in assessing the agency’s stability, reliability, and capacity to provide support throughout the surrogacy journey. Many agencies employ part-time employees, which can be problematic if the employee leaves for a more secure, full-time position. In addition, knowing that you can contact a full-time staff member during business hours can be easier when you have an urgent query.
Services the Agency Offers
Every reputable agency should be able to describe the services they offer succinctly. Listen closely to the details provided and do not hesitate to inquire further where needed. This will help you avoid the situation where you must handle an issue by yourself because the required service goes beyond the agency’s capabilities. Some agencies may have an established network of experienced professionals they collaborate with, while others may have in-house experts providing the services. Understanding the range of their services is vital to ensure comprehensive support throughout your surrogacy journey.
Does the Agency have qualifying criteria for their intended parents?
For example, agencies may have an upper age limit for accepting intended parents, which should not be misconstrued as discrimination. Such limitations are often based on the agency’s experience with their surrogate pool and legal regulations in the country where surrogacy takes place.
Some agencies may also struggle or be unable to find surrogates willing to carry a twin pregnancy. If you prefer to conceive a twin pregnancy, please discuss this in detail with the agency in advance and determine if they will need additional time to match you.
Is surrogacy their only business?
While some agencies solely focus on surrogacy, others may have additional services such as an egg donor program, independent or affiliated legal practices, or other medical tourism-related ventures. It is important to inquire about the agency’s other business involvements to understand if their staff members exclusively handle surrogacy cases or if they are multitasking in other areas. Additionally, it is essential to determine if the agency recommends their internal businesses over more suitable alternatives that are in the best interest of the intended parents.
In some jurisdictions, there may be limitations on who can own a surrogacy agency or limits on the affiliation between professionals to limit conflicts of interest where a business interest could be put above that of the intended parent. As an example, under New York law: a surrogacy program may not be owned or managed, in any part, directly or indirectly, by any attorney representing a party to the surrogacy agreement and may not pay or receive payment, directly or indirectly, to or from any such attorney.
How do they recruit surrogates?
Most agencies will no doubt advertise for surrogates online. However, you may hear interesting search ideas from different agencies. This will give you a fuller understanding of how they run their business and whether they recruit their surrogates or work with a third-party vendor. Having a pool of proven and screened surrogates can be an asset.
Screening Protocols
You should not underestimate the benefits of having effective screening. Ensure you discuss their screening protocols but let them do the talking. You want to learn what makes this agency different from others. You will want to enquire about how extensive their medical screening is and, most importantly, the timing of when the screening is done.
- What part of the screening is done before a match, and what is done after a match is confirmed?
- Does their service also include psychological screening? Some agencies hire independent mental health professionals to do a one-time screening of the surrogate, whereas other agencies work with the same mental health professionals for all their cases.
- Is the mental health professional independent, a full-time employee, or affiliated with the agency?
A proven element in the success of any surrogacy lies in exploring and understanding the psychological aspects that drive the surrogate and intended parents. If both sides fully explain, manage, and understand these, the relationships between the intended parents and the surrogate will likely thrive, and miscommunications will be avoided. Working with a consistent team of mental health professionals is a proven advantage.
Legal Referrals
Where does the agency refer its intended parents for legal work? Is there a list of attorneys or a long-term relationship between the agency and the legal team? Does the agency or owner of the agency have a financial interest in the legal firm? It is important to ensure that the advice you get is both impartial and independent.
What services does the legal firm offer?
- Draft legal contracts and able to represent the intended parent.
- Review of the surrogate’s insurance policy.
- Ability to finalize parental rights.
- Child Immigration status advice.
Informed legal consent implies that independent legal counsel must represent the surrogate and intended parents. It is highly recommended that each party has their legal representation. In some countries and jurisdictions, for example, in the United States and Australia, the law dictates that independent legal counsel must represent each party.
Rights of Citizenship
Citizenship is the legal bond between a person and a government. Each country can determine the conditions under which it will recognize persons as its citizens. Through citizenship, a person acquires the right to request a passport, live in that country, and leave and return to that country. Jus soli (right to soil) and Jus Sanguinis (right to blood) have traditionally been the basis for establishing citizenship.
Definitions: Citizenship by birth or by right of blood (jus sanguinis) applies if one or both parents are already citizens of a particular country. In such cases, any child legally recognized as their child will, therefore, have the right to citizenship of that country. If the child is born outside of that country, but one or both parents are citizens, their legally recognized child is also a citizen under jus sanguinis.
The alternate is the right of soil (jus soli), a path to automatic citizenship that grants citizenship to any child born in that country, independently of the parent’s citizenship. Examples: USA, Canada, and most South American countries.
However, surrogacy challenges this traditional view of citizenship by redefining the definition of parenthood. It is, therefore, important that the intended parent clearly understands how their child will establish their citizenship in advance and how that child will be permitted to return to the intended parent’s country and live there permanently. If a newborn is not granted citizenship from the country where they were born, then the only option is to apply for citizenship via jus sanguinis (descent). Therefore, before leaving the country where their baby was born, the intended parents need to apply for their child’s passport at a local Consulate. Knowing your rights in advance will ensure that a local Consulate will not refuse to issue a passport for a surrogate child. If the Consult requires proof of a genetic link between the parent and child, paperwork evidencing this link can be secured before the appointment. Remember, if your Consulate does not issue a passport, the child would be considered stateless, and travel outside the country’s borders would be impossible.
For obvious reasons, it is important to clearly understand the requirements to be granted citizenship and what passport is necessary to permit your child to travel beyond the border of the country of their birth. Discussing citizenship in detail with the agency and legal advisor you are considering is highly recommended. Also, be sure to inquire whether they have experienced any problems with gaining citizenship for any of their deliveries.
Choice of Fertility Clinic
Does the agency have any limitations on which clinic an intended parent can work with? Some agencies are affiliated with a specific clinic or clinics and prefer or insist that their intended parents work only with these clinics. Will the agency assist the intended parent in selecting a clinic to work with, and how do they decide which one to refer an intended parent to? Some agencies have secured special discounts from fertility clinics. Such arrangements benefit the intended parent but should be fully disclosed.
Matching & Re-Match Policy
One key question you should ask is how long before you are matched with a surrogate. Also, if that candidate is not a good match for you, how long will it be before other candidates are presented? If you are not matched in a specified amount of time, will all or some of the funds you have spent be reimbursed to you?
The term ‘rematch’ is when an intended parent was matched with a surrogate and, for whatever reason, cannot continue to work with that individual. Each agency will have its own policy for when it will offer other surrogate candidates and the charges involved. Inquire as to the typical time that a rematch will occur. This could be one month or a year, so it is important to ask the question. Spending a little time on understanding their rematch policy could make a substantial financial difference to the costs of your journey, let alone giving you certainty in regarding timing.
Delivery
Does the agency have a policy regarding birth at a hospital vs. a birthing center? Who makes the decision? It is highly recommended that all deliveries occur in a hospital where you have the best possible medical care. Why take any risk when you have fought hard to get where you are on the journey?
Every hospital’s NICU (neonatal intensive care unit) has a ‘level’ rating in the United States. Most babies are sent to Level 1 (the Well Newborn Nursery) after birth. Level 3 and 4 facilities are fully equipped to handle almost any newborn emergency. Try to work with a surrogate with access to a Level 3 hospital or higher. (Be aware, though, there are not many Level 4 hospitals, so insisting upon one could result in you being significantly delayed in being matched).
Will the hospital permit the intended parents to be present for the birth? How soon can the intended parent have time to bond with their baby after birth? What are the anticipated hospital delivery and newborn baby costs the intended parent will be asked to pay?
Can the surrogate legally change her mind?
Knowing whose name goes on the birth certificate and when is important. Can a surrogate enter her name on it? In countries, states/counties/territories with legislation governing surrogacy, the law is usually particular about whose names will be entered into the birth certificate. If the intended parent’s names are entered, then this affords no opportunity for the surrogate to try to keep your baby. Similarly, there are some countries or territories or states where the laws are more ambiguous. In some, there are no specific laws governing surrogacy, and the surrogate has time after birth to change her mind (sometimes recalled “cooling-off period). In such cases, the surrogate must consent before the intended parents can be named as the child’s parents. Specific requirements must be met when a law governs a surrogacy relationship. If you do not meet those requirements, then there is the risk that the surrogate could use the lapse in conforming with the requirements as an opportunity to change her mind. For example, if altruistic surrogacy is permitted with reimbursements for listed expenses only, then giving her $5,000 in cash as a thank-you gift can fall foul of the law, however well-intentioned. If your surrogate subsequently wants to change her mind about relinquishing the baby, she can report that you gave her the cash, meaning that the law may no longer protect you. This could have massive consequences, as the court may revert to existing laws and find that the person who births a child is the child’s legal mother. The court may well award custody and guardianship to the intended parents but cannot declare them to be the legal parents. It may be necessary for the intended parent to assess the risk of participating in surrogacy where the laws are not clear-cut.
Note: a surrogate will rarely change her mind. Surrogates do not want your baby, as that child is usually unrelated to her and her family. In addition, if she had wanted another child, she could quickly become pregnant. Well-screened surrogates are typically selected because they are assessed to feel that their families are complete, and they do not want another child for themselves. After all, surrogates want to help another person realize the joys of parenting. If a surrogate does change her mind, then there is frequently a reason: perhaps the intended parent lied to her about their mental or physical health, sexual orientation, or some other dynamic of the relationship between the intended parent and the surrogate breaks down. This betrayal causes the surrogate to feel that the baby is unsafe and to feel responsible for looking after the child because she no longer trusts the intended parent. Clear communication should always be a high priority in a surrogacy relationship. Having a mental health professional available to keep your relationship on track is highly recommended.
Inquire about the laws of where your surrogate resides and will deliver – any reputable agency should be sufficiently knowledgeable about these laws. Of course, they can refer you to legal counsel, but every agency should already understand the laws applicable to where their surrogates reside and will deliver.
Also, inquire if they have ever had a surrogate change her mind about relinquishing a child. This should not necessarily rule out the agency as one of your choices. Discuss what they believe caused this, the outcome, what they learned from that experience, and what safeguards they have implemented.
Escrow/Trust Account
An escrow or trust account is the bank account where the intended parents’ funds are deposited. These are then allocated for paying all reimbursements and expenses for this surrogacy journey. Some agencies will request that all the anticipated funds be deposited in full with the agency or escrow company before a pregnancy is achieved. In contrast, other agencies may have a minimum deposit option needed along with an agreement with the intended parents to deposit additional funds as required. You may need to know how much money you must deposit and when the amount will be requested.
There are several online posts where surrogates only received their portion of the fee because the agency did not give them the money or because professionals charged the surrogate various fees or commissions. Please take the time to ensure that the lovely woman who has graciously offered to assist you in completing your family is guaranteed her full reimbursement and payments.
Also, ask if the agency is accountable for these funds or if a third-party vendor is assigned to oversee them. Is there a relationship between the agency and this third-party vendor? What documentation will the intended parent receive regarding the safety and disbursement of their funds? Will the intended parent receive monthly or quarterly accounting or ledgers?
Inquire as to whether there is a fee for the handling of these funds. Some agencies cover these fees themselves. In some cases, intended parents are charged a nominal fee per transaction, so ask what the average costs are. After the birth and when all the expenses are paid, if funds remain in the escrow/trust account, who gets these funds and when?
Your research is done; next is the decision.
Once you have spoken to each agency and noted all the answers to your questions, the next step is to review your research. You should quickly see a pattern developing of services you feel are important and services you can live without. Create a list of what services are important to you. Compare the research to your list, which should narrow your focus to a final choice.
If you have managed to digest all 4 Parts of our series entitled “How to Compare Agencies,” – congratulations! You have done your homework and are armed with key knowledge about surrogacy. Now you should be able to identify your needs and requirements objectively.
If you wish to refresh your knowledge of the other articles in this series, they have been divided into 4 Parts for your reference, namely:
Part 1: Types of Surrogacy Agencies
Part 2: When the Match Falls Apart
Part 3: Cost Analysis (USA Agencies)
Part 4: Selecting an Agency
Author: Karen Synesiou, Infertility Portal, Inc.
