GESTATIONAL SURROGACY LAW VERMONT
The Vermont Parentage Act of 2018 specifically permits gestational surrogacy making it possible for intended parents to build their families through this type of surrogacy.
Although the following guide can give you a better understanding of the general rules and regulations of surrogacy in Vermont, it is not meant to be used as legal advice. It is important to consult with an experienced attorney to guide you through your unique journey.
Below is a list of some of the most frequently asked questions about surrogacy in Vermont.
Is Gestational Surrogacy Legal in Vermont?
Is Traditional Surrogacy Legal in Vermont?
Yes. Traditional surrogacy is legal in Vermont but traditional surrogacy is treated the same as an adoption. This means that a surrogate might not be able to receive base compensation and may be subject to strict regulations regarding the termination of her parental rights after birth.
Is Compensated Surrogacy Legal in Vermont?
Yes. Compensated surrogacy is legal when pursuing gestational surrogacy. Intended parents are permitted to compensate the surrogate for her time and expenses. This is something that is established when the surrogacy contract between surrogates and intended parents is drafted. In addition to their base pay, Surrogates are compensated for their time, the medical risks they accept, and the list of expenses below:
- Mock cycle compensation
- Embryo transfer compensation
- Starting medication compensation
- Monthly allowance for miscellaneous expenses
- Monthly Housekeeping budget
- Maternity clothing budget
- Medical expenses
- Travel to and from clinic/hospital
- Lost wages if applicable
- Child care if bed rest is required
- Term life insurance
- Medical insurance
- Independent legal counsel
- Psychological counseling
- Other depending on agency
Creating a Vermont Surrogacy Contract
In order for a surrogacy agreement to be enforceable in Vermont, intended parents and surrogates must have independent legal representation and it must meet the following requirements:
- No more than a one-year term to achieve pregnancy
- At least one of the parties must be a legal resident of Vermont
If these terms are met, a the surrogacy attorneys can negotiate a surrogacy contract that addresses the needs and expectations of both parties including but not limited to:
- Rights and responsibilities for each party
- Potential risks and liabilities, and the steps to take should they occur
- Surrogate compensation and other important financial information
- Agreements on sensitive issues like selective reduction and termination
- Contact expectations before, during and after the surrogacy
- And more
Once intended parents, the surrogate and her spouse (if applicable) consent to and sign the surrogacy contract, the medical process of surrogacy can begin.
Determining Legal Parentage in Vermont
Pre-birth parentage orders are available to any intended parent, regardless of marital status, sexual orientation, or genetic connection to the child born through surrogacy.
The exception to this would be if the intended parents are from Vermont but complete a surrogacy arrangement in a different state where they are unable to obtain or secure their parental rights (by parentage order or adoption). In such a situation, they may complete a post-birth adoption in Vermont.
Same-Sex Surrogacy in Vermont
Q: Is Same-Sex Surrogacy Legal in Vermont?
A: Yes. Same-sex couples and LGBT+ intended parents have the same legal rights and will experience generally the same surrogacy process as opposite-sex couples, with the exception of likely requiring an egg donor or sperm donor to complete the IVF procedure.
Q: Are There any Additional Laws Impacting Same-Sex Parenting in Vermont?
A: No. There are no additional laws impacting same-sex parents in this state.
Q: Are Surrogacy Contracts (Whether Compensated or Altruistic) Enforceable in Vermont?
A: A gestational surrogacy contract is enforceable if it is in writing, signed by all parties, witnessed by at least one other person, and executed prior to the start of any medical procedures. The agreement must require no more than a one-year term to achieve pregnancy. At least one of the parties must be a legal resident of Vermont.
Q: Are There any Particular Laws for Parents Outside the United States Who Complete a Surrogacy in Vermont?
A: No. The same laws that apply to domestic intended parents are the same as those that apply to international intended parents. It is important, however, that Intended parents from another country speak with an immigration lawyer to ensure they follow the proper legal steps for taking their child home.
Q: When do Intended Parents Need to Complete an Adoption After Birth?
A: Post-birth adoptions are rarely necessary. Typically, a post-birth adoption will only be necessary if the intended parents are from Vermont but complete a surrogacy journey in a different state where they are unable to obtain or secure their parental rights (by parentage order or adoption). In these situations, they may complete a post-birth adoption in Vermont.
Q: Does Vermont Allow Second-Parent Adoptions? Who Would Need to Complete a Second-Parent Adoption vs. a Stepparent Adoption (If Applicable)?
A: Yes. However, unmarried couples who complete a second-parent adoption will need to complete a home study before they can be approved for adoption.
Stepparent adoptions are permitted and available to married couples. Unlike a second-parent adoption, a home study is not required, so the process is much quicker for a stepparent adoption.
Q: What Happens in Cases Where Intended Parents Use a Donor Egg, Sperm or Embryo?
A: Intended parents who complete a surrogacy in Vermont are usually able to obtain a pre-birth order regardless of whether they used a donor egg, sperm or embryo. The Vermont Parentage Act of 2018 states, “a donor is not a parent of a child conceived through assisted reproduction.
REPRODUCTIVE LAW PRACTITIONERS
Kathleen King DeLisle
Southborough, MA (licensed in VT)
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