A Surrogate Can Make $500,000?! Sounds Too Good To Be True

Don't drop out of law school to become a surrogate just yet....

pregnant woman with cash money paid surrogate surrogacyRecently, a German court issued a disappointing ruling that not only made it harder for German citizens to start families, but also appears to have got one important fact wildly wrong. Specifically, a German court refused to recognize a birth certificate issued in the United States that named a couple as the legal parents of their twin sons. Here is the court order of the OLG Braunschweig. It’s in German, or auf Deutsch, for you Germanophiles. For the rest of you, there’s Google Translate.

The Facts. According to the ruling, an older German couple, ages 61 and 57, were unable to have children in the traditional manner. They ventured to the United States to utilize this country’s high-tech fertility specialists, and arranged for both an egg (oocyte) donor and a surrogate (gestational carrier) to carry a child. The couple used (1) an egg donation and surrogacy agency, (2) a reputable fertility clinic, and (3) attorneys to represent both the future parents and the anonymous donor and surrogate in the legal contracts.

Mo’ Money, Mo’ Problems. Aside from the intended parents being older than most new parents, the facts set forth in the German court’s opinion look pretty normal for a surrogacy arrangement in the United States. With one major exception. The surrogate’s purported compensation! The court ruling describes how the intended parents agreed to pay the surrogate $500,000 for a twin pregnancy. Wow! That would be incredibly high. And sure enough, the surrogate successfully carried twins, babies L. and O, to birth.

Just for a little context, the industry standard compensation for a gestational carrier is currently in the range of $25,000 to $40,000. In some places like California, the rates can go a little higher. And most contracts add an additional $5,000 to $8,000 for a twin pregnancy. So even now—not to mention six years ago–half a million dollars would be unheard of! I’m sure the court was wildly off, and that the compensation was more likely around $25,000 or $30,000, with an addition of $5,000 for twins. (So don’t drop out of law school to become a surrogate just yet.) It is common for intended parents in a surrogacy agreement to pay for a life insurance policy for the surrogate – and $500,000 is a normal amount of life insurance coverage for these contracts. I suspect that may be where that number came from. But it’s hard to understand how such a significant mistake made it into a final court opinion.

Parentage Problems. The German court was troubled by several facts that are actually standard practices in the U.S. First, it took issue with the U.S. determination of parenthood. The court noted that the relevant pre-birth parentage order—which I obtain for my clients on a regular basis—was a problem: (1) because the determination of parentage was made prior to the birth of the children and (2) the surrogate was not represented in the process. But given that the surrogate is not related to the child she is carrying, all parties are generally in agreement that the surrogate is not and should not be recognized as the parent of the child, even at the time immediately after the birth. Instead, a pre-birth order is the preference for most intended parents and surrogates alike. Without a pre-birth order, there can be additional complications, the least of which is applicable insurance coverage. Who makes medical decisions for the baby? Who has legal rights? Who has the obligation to trudge through administrative hospital paperwork?

As for legal representation, it is true that most states with surrogacy statutory frameworks require a surrogate to be represented by legal counsel when she enters into a surrogacy agreement. However, not so for a parentage petition or determination. This is generally because there is no disagreement on parentage. Indeed, parentage petitions for surrogacy cases are frequently styled with the intended parents and surrogate as co-petitioners. There is no respondent, there is no adverse party, and everyone agrees as to who should be determined to be the legal parents of the child.

Nevertheless, the German court said nein to the couple. It held that neither a U.S. pre-birth court order, nor a U.S. birth certificate, could establish parentage in Germany. Instead, the family would have to file a new petition either for paternity (because the father is genetically related to the twins), or for adoption.

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Going forward, an attorney should, of course, consider advising a German couple undergoing surrogacy in the United States to be sure the surrogate has legal representation throughout the process, and that the parentage is not determined until (or is determined again) after the birth. And, of course, just a reminder, you don’t need to pay her half a million dollars.

Surrogacy Verboten! Unsurprisingly, the German court made much of the fact that the parents went through this process in the United States to circumvent Germany’s prohibition on surrogacy. Similar to many other European countries, Germany forbids surrogacy in any form, including altruistic, or unpaid, surrogacy arrangements. Additionally, the court noted that the intended parents should have, and still could, gain parental rights to the twins in Germany through other avenues.

So for all international intended parents coming to the United States, this case serves as a warning. Always, always consult an attorney in your home country. This is not the first time that a birth certificate issued in the United States has not been recognized in another country. It certainly won’t be the last. So be sure that your lawyer knows how to get your children properly recognized in your home country as the parents of your surrogate-born child.


Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at babies@abovethelaw.com.

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