There are many unique areas of family law, but one of the most specialized deals with surrogacy.
Ellen Trachman, the managing attorney of Trachman Law Center, LLC, has been working in surrogacy law for 10 years and has practices in Colorado, California, Montana and New Mexico. Trachman explained there is no federal law for surrogacy as it’s state-by-state. The Colorado legislature passed the Colorado Surrogacy Agreement Act in 2021. Trachman explained some states have specific laws for surrogacy, which Colorado didn’t until then.
“This bill was proposed to codify best practices of surrogacy in Colorado,” Trachman said. “All the requirements that are in the law are kind of already being done by respected professionals, but we did occasionally see those who were skirting those laws.”
Trachman noted it puts in requirements for gestational and genetic carriers (where the surrogate is also an egg donor) — Trachman found 95% are gestational where the carrier isn’t genetically related to the child. Some of the rules include the surrogate being over 21, getting a medical evaluation and having legal representation, along with the codified requirements of the contract the parties enter.
Trachman explained one of the codified requirements includes any party can walk away when the surrogate isn’t pregnant.
“So she signs this contract and changes her mind for whatever reason, a surrogate’s not asked to pay back … fees [paid for by the intended parents],” Trachman said, adding another key element is the surrogate is allowed to make any health decisions related to her and her pregnancy.
Trachman said some issues could arise when it’s an independent match for a surrogate rather than an agency that does the matching. Trachman co-owns a surrogacy matching agency separately.
“With independent matches, where there’s no agency, sometimes it can be a little bit more bumpy,” Trachman said. “One of the big areas that can be really sticky is insurance, so agencies are really good at walking everyone through insurance to understand it.”
Trachman added generally the intended parents’ insurance won’t cover the surrogate’s pregnancy for delivery, so it could depend on the surrogate’s insurance. In some cases an insurance company would put a lien against the surrogate’s compensation. And sometimes the parents will need to buy surrogate insurance for the carrier.
If the surrogate is compensated, the expected rate could be $50,000. There are other things parents could also cover including maternity clothes, a life insurance policy, C-section fees, etc., that are on top of the original compensation.
Emily McArthur, owner of McArthur Law Firm, LLC, who has worked in the surrogacy field for about 20 years, explained before the Colorado Surrogacy Agreement Act, attorneys like her were using the most practical and ethical ways to deal with surrogacy issues.
McArthur, who works out of Colorado, added having a federal surrogacy law would be simpler, but there can be large differences between states, meaning it’s a state issue.
McArthur echoed what Trachman said noting many insurance companies won’t cover surrogacy and those involved have to work to get a policy for the surrogate.
McArthur noted the Colorado Surrogacy Agreement Act also applies to genetic carriers and within a contract they sign, it would indicate the parents the surrogate is having the child for are the actual parents.
“I used to be a ‘jack of all trades,’” McArthur said regarding her previous practice areas, but in the last 10 years she’s seen a large influx of surrogacy cases.
Seth Grob, a founding partner at Grob & Eirich, LLC who practices in Colorado, has been practicing for 32 years with much of his focus on family building.
Grob added one of the things that makes Colorado’s statute unique is it requires the surrogate and intended parents to be represented by legal counsel.
“Let’s theoretically say we have intended parents from California using a gestational surrogate in Colorado, both the intended parents in California have to be represented by Colorado counsel, as does the surrogate,” Grob said. He added the rule of thumb he typically follows: he applies the choice of law to wherever the surrogate is located because they know she’s going to give birth in that state.
As for issues Grob deals with the most, they include how much the surrogate is going to be paid and what kind of contingency fees the surrogate is entitled to.
Grob added he thinks it’s really important when they do surrogacy agreements, they have an independent escrow agency managing the disbursement of funds for the surrogate.
“One of the reasons that we do that, among others, is because, let’s say if the intended parents were to pass away during the course of the pregnancy. We want to make sure that there’s a fund available to assist the surrogate with the reimbursement of her expenses,” Grob said, adding generally funds would get disbursed on a monthly basis.
In the event that both parents did pass away, in the contract the primary and secondary guardians would get named, according to Grob.
Grob added he has seen his surrogacy practice growing in the last five or 10 years.