A formal review of your surrogate/gestational carrier’s health insurance policy is a critical first step in your surrogacy/gestational carrier arrangement, as a lack of suitable maternity coverage is one of the most significant areas of financial risk to you, as intended parents. Not all insurance policies cover maternity care in the context of a surrogate pregnancy, and the variations between plans can be substantial, particularly with self-insured plans, where employers retain discretion to interpret benefits and exclusions. As a result, each policy must be evaluated on its own terms, regardless of who the insurance carrier is or their history of providing coverage.
Insurance policies may be silent on surrogacy, contain explicit exclusions, include implied coverage, or rely on ambiguous language that requires careful interpretation of the specific words used and where the language is found. Determining whether a policy is suitable to provide surrogate maternity coverage is not a straightforward review, it requires a detailed, nuanced analysis of the governing documents by a professional with specific experience in assessing insurance coverage for surrogate pregnancies. Working with someone who has this specialized expertise is essential to accurately identify risks, avoid misinterpretation, and ensure informed decision-making and risk management.
By having an insurance review done early in the process, intended parents can better understand their financial exposure, evaluate their risk tolerance, determine whether supplemental coverage is needed, and proactively address any gaps, ultimately avoiding costly and unexpected surprises later in the journey.
Contact SHS & Associates today to discuss the importance of a formal review of your surrogate/gestational carrier’s pre-existing insurance policy and how we can help provide you with the resources and guidance to determine what additional coverages you may be interested in.
Starting a family through surrogacy comes with unique legal considerations, and an often-overlooked aspect of a surrogacy/gestational carrier arrangement is the need for proper estate planning for the intended parents and the surrogate/gestational carrier to prevent catastrophic outcomes in the event of death or incapacity of any of the parties prior to parentage being legal established in the intended parents.
Our attorneys help create a comprehensive estate plan that properly addresses your surrogacy/gestational carrier arrangement and protects you and your family in the event of incapacity or death. Our estate plan work is dedicated to families involved in a surrogacy/gestational carrier arrangement helping Minnesota-based intended parents and surrogates/gestational carriers, whether you are single or married, or a heterosexual or same-sex couples.
Because surrogacy separates the physical pregnancy from the legal and genetic parentage, unique risks exist if death or incapacity occur before parentage is legally established. For this reason, intended parents should have a complete estate plan in place prior to an embryo transfer that includes a formal Will with guardianship and trust provisions for the anticipated child, powers of attorney in the event of incapacity, and health care directives. Once an embryo transfer occurs, it is possible for your surrogate/gestational carrier to carry and deliver your child even if one or both of you were to pass away or become incapacitated. Without advance planning, this could create serious uncertainty regarding custody, decision-making authority, and financial support for your child.
Similarly, it is highly recommended that your surrogate/gestational carrier has her own estate planning done that specifically contemplates the surrogacy/gestational carrier arrangement. Because surrogates/gestational carriers are typically required to have previously given birth and to be raising their own child(ren), she may already have an estate plan in place to protect her family. However, those documents are generally written with the assumption that any child born during her lifetime is her legal child and heir. During a surrogate pregnancy, that assumption is not accurate, in which case it is critical that her existing documents are updated to contemplate the surrogacy/gestational carrier arrangement.
Without estate planning documents in place that contemplate the current surrogacy/gestational carrier arrangement, if your surrogate/gestational carrier were to pass away after the pregnancy becomes viable but before parentage is legally established in you, your child could unintentionally fall under the terms of your surrogate/gestational carrier’s existing estate plan or the relevant state’s laws of intestacy if there is no estate plan in place. This could result in your child being treated as your surrogate/gestational carrier’s legal heir, sharing in her estate, or being placed in the custody of guardians designated for her own children—outcomes that are contrary to the intent of all parties.
To prevent this, it is highly recommended that the surrogate modify her existing estate plan or to have one drafted prior to viability to clearly state that any child she is gestating pursuant to a surrogacy/gestational carrier arrangement is not her legal child or heir, should not inherit from her estate, and should be placed with the intended parents pending the legal establishment of parentage. This ensures that, in the unlikely event of death, the child’s custody and financial interests align with the surrogacy/gestational carrier agreement and the parties’ intentions.
Having an estate plan tailored to contemplate the nuances of assisted reproduction creates a clear path forward if any party is incapacitated or died before the legal process is complete. The lack of timely and proper planning creates serious uncertainty regarding custody, decision-making authority, and financial support for the child.
A proper Will ensures your child is considered your descendant and heir, regardless of genetic connection and should account for the following:
Powers of Attorney and Health Care Directives should reflect the specific circumstances of your ART journey by including the following:
Estate planning documents should reflect the agreements you create with surrogates/gestational carrier and donors by:
Creating a family through ART involves both legal and personal planning that you should not undertake alone. Our firm can guide you through this complex process, helping you protect your rights and those of your child.
Contact SHS & Associates today to discuss how estate planning can support your ART family.
