Stanley R. Brenner, Esq. of Infertility Solutions Law, has concentrated his law practice in the field of Assisted Reproduction Law and Adoption. Since 1992, Stan has helped create hundreds of families through adoption, surrogacy and egg donation. And came to this field through his own personal experiences. Stan has represented birth parents, adoptive parents, adoption agencies, intended parents, surrogates, egg donors and sperm donors, and has a bonded escrow division that safely holds funds for intended parents. We asked Stan to provide his expertise in the U.S. and abroad and answer some of the frequent questions that fertility travelers have about their money and how to protect it.
1. Why is it important for Intended Parents to put their money into an escrow account? An escrow account is important because it provides a secure place for funds that are to be used to fulfill the Intended Parents obligations under the gestational surrogacy contract. It is recommended that the funds be placed with a licensed and insured escrow company or an attorney’s trust account.
2. How does an escrow account protect the Intended Parents? Unfortunately, in recent years there have been a few cases where a surrogacy agencies that were holding intended parent’s funds have misappropriated these funds that were supposed to be used for the benefit of the carrier. The vast majority of agencies are reputable. However, had the funds been placed with a licensed and insured escrow company or in an attorney’s trust account, the Intended Parents would have had some protection for their funds.
3. How does an escrow account protect the Surrogate? Having an independent third party escrow agent eliminates the unpleasantness and stress of having to deal directly with the Intended Parents regarding financial matters. The escrow entity provides a buffer and in most cases to resolve financial issues without having to interfere with the relationship between the surrogate and the Intended Parents. In addition, it provides peace of mind to you in knowing that the funds that are owed to the surrogate under the Surrogacy Contract are set aside in a secure account to be distributed to them in a timely fashion in accordance with the terms of the Surrogacy Contract. In addition should an unforeseeable tragedy or event happen to the Intended Parents (death or the loss of a job), it is comforting to the surrogate that the funds that are owed to her are in a secure account and will still be distributed to you in accordance with the Surrogacy Contract.
4. Who decides when payments are made? The payments are made in accordance with the terms negotiated in the Surrogacy Contract. The escrow entity does independently not decide when a payment is to be made. Generally the Intended Parents and Surrogate have had independent counsel represent them in the drafting and negotiation of the surrogacy contract.
5. What are things I should beware of when looking for an escrow company? It is advisable to do your homework in deciding whom to use as the escrow entity. Some factors to assist you might be, are the funds being place in an attorney’s trust account, if you are using escrow company are they licensed and adequately insured, how long the escrow entity has been in business, check with the better business bureau to see if there have been any unresolved complaints filed, references from a reputable agency is helpful.
6. What happens if there is a disagreement between a surrogate and an Intended Parent, then how are payments made? If there is a disagreement between a surrogate and intended parent regarding a payment, it is advisable that there be a method to resolve disputes that may arise. It may be the use of a neutral third party agreed to by the Intended Parents and the surrogate, if there was an agency that facilitated the match between the intended parents and the surrogate, the agency may be designated to resolve differences that may arise. It may be agreed that a mediator be used to resolve the issue, As a last resort, the disputed funds may be placed with the Court and an interpleader action may be filed where the Court will resolve the dispute. This is not a preferred method and will likely only be used where other methods to resolve the dispute have failed.
7. Do I make interest on my money? If the funds are held in an attorney’s trust account (called and IOTA or IOLTA account) interest earned on funds in the account go to the bar of the state where the trust account is established and the attorney is located. Whether or not interest is paid on other types of escrow management services may depend on which state the funds are being held and whether or not a state has legislation governing that type of account.
8. Why shouldn’t I just put my money into a bank account instead of an escrow account for a surrogacy? An escrow account is a bank account it is a bank account that is managed by a third party with specific directions on how to disburse the funds. If the funds were placed in a bank account completely under that control of the intended parents, the surrogate may not be protected should the funds be withdrawn by the intended parents or the intended Parents suffer an adverse event that affect their ability to make payments to the surrogate.
9. Is there anything in particular that International IPs should know in regards to using a U.S. based escrow company for their US surrogacy journey? International Intended Parents should have the same concerns as domestic intended parents in choosing an escrow entity. It is more likely that international intended parents will be using a surrogacy agency that will likely make refer them to the escrow entity.
10. What if I am an Intended Parent coming from a country where surrogacy is illegal (lets say Italy) and I don’t want anything to do with ‘surrogacy’ to show up on any legal or financial documents.. can you assure me that will be okay? How will that work? If the Intended Parents are concerned about anything to do with “surrogacy” showing up on legal or financial documents as it relates to the escrow entity, it would be advisable for the Intended Parents to discuss these concerns with the escrow entity to make sure that any communications or documents are not going to cause them concern.
11. Can I just use any escrow company (like a real estate escrow company?) or does it have to be a surrogacy one? Any escrow entity can be used. I find it is helpful if the escrow entity understands the nature of the underlying transaction but that is not necessarily a requirement. Some states have do have specific requirements as to who may hold the surrogacy funds and I would want to make sure that these requirements are followed.
12. How do escrow companies charge for there services? Escrow entities may charge a flat fee for an unlimited amount of checks to be written, others may charge a flat fee plus an additional charge per check written, and other may charge a fee for a certain amount of checks and then a per check charge once that number of checks have been written.
13. Many Intended Parents come to the US to do surrogacy and/or egg donation – can you offer any tips so they don’t spend funds unwisely or lose money with disreputable agencies or clinics? Choosing an Agency to help you find a surrogate or egg donor is an important decision and requires a little research and time. Do your homework. Most agencies and clinics are reputable Check to see how long the agency has been in business, how many matches do they do, and how financially sound is the agency. Does the agency do a thorough screening process on the surrogate or egg donor. What services does the agency provide to intended parents and surrogates and donors. What are the agencies requirements for surrogates and egg donors?
14. What’s the best advice you can offer IPs going abroad? When traveling abroad for IVF/Surrogacy and or Egg Donations it is of utmost importance to work with a reputable Agency and experienced professionals. Make sure that you will be able to leave the country where the birth takes place and return to your country of origin. Getting competent legal counsel in both your country of origin and where the birth will take place is of utmost importance. There have been too many cases where people are stuck in countries unable to bring their children home because they were not properly counseled. It is important to remember that while surrogacy may be legal in your chosen destination country, you may still encounter problems once you get home, especially if your home country is less surrogacy friendly. In some instances you may be able to return home with your child but you child may not be recognized as a citizen of your home country. Again, a reputable Agency will make referrals to competent professionals who can guide you through the process.