Surrogacy 101

Surrogacy: Whatever YOU think the time table should be; don't count on it!

 

       OK, I admit it....I just have to chuckle to myself when someone says they want to be pregnant by, say, the new year or by their next birthday or before their 5 year old is out of kindergarten....or they would like to be matched by next month so they can hit that next cycle or better yet, have a transfer in 2 months.... Please realize that in the world of A.R.T.  it truly is an art form! A delicate dance with many partners. First, you have to find that perfect couple or surrogate (your full time partner for this dance), then you have to meet the RE and have all the clinical testing done in order to be cleared for the IVF procedure. There is a visit to the psychologist as well. From there, contracts have to be drawn up, agreed upon and signed...and don't forget that all of these professionals have their own time tables! If an egg donor is included in this waltz around the room, then HER cycle needs to be taken into consideration...and lets see, the clinic may "batch you" which means that they only perform transfers one week during the month...and maybe not in December or July. (perhaps closed for vacations, holidays and lab cleanings) And then there are the unplanned situations that may arise during all of this 'scheduling' like a death in the family, the ED didn't stimulate well, the frozen embryos all died during the thaw, a polyp was found during the mock transfer and needs to be removed, a failed transfer, and so on and so forth.

 

     A note on my personal experiences: For my first surrogacy we signed contracts in 1998 and I gave birth to twins in March of 2000 and for my second surrogacy I wanted to retire from being a surrogate by the time I was 40. I met my couple at age 39 and ended up giving birth to their twins shortly after I turned 41.

 

 

     The best way to protect yourself from continual frustration is not to have any time expectations. I don't mean allow people to drag their feet or for situations to continue to go unresolved but to move forward at a steady pace, together. Keep in close contact with everyone involved and try to have an idea of the issues that may pop up or slow down the process. Work on each phase of your ART journey without jumping too far ahead of yourself. Be aware of everyone else's time constraints and the future will take care of itself!

 

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You want to be a Surrogate? But WHY?

 

 

     Although Surrogacy has made itself well known or, dare I say it, popular, still I believe that the general population wonder what motivates women to become surrogate mothers or gestational carriers. It is understood that infertile couples or singles will explore all their options, surrogacy included,  but why in the world would a perfectly healthy woman want to go through a pregnancy, labor and delivery for mere strangers? (which happens in a majority of the cases.)

 

     The first conclusion usually is money. I would like to dispel that myth right away. A first time carrier with her own health insurance may be entitled to compensation/reimbursements between $25,000 and $30,000. What is this money used for? Its illegal to 'sell' a baby, or your body for that matter, so why is money involved at all? This compensation is to be used while the surrogate is pregnant with a child to support her throughout the pregnancy. She can use it for anything she likes but it is earmarked for food, insurance, local transportation, and general living expenses. Other 'benefits' listed in a contract may be clothing, child care, out of state travel, house keeping and invasive procedures. Often it takes months before a surrogate becomes pregnant and even then it may take 2 or 3 IVF treatments. Any compensation is minimal. She quickly finds that she could make more money working at a fast food restaurant for minimum wage!

 

     Perhaps attention is the motivator? Some women enjoy being the center of attention while pregnant and as a surrogate, attention is a huge part of the journey! Not only is her own family focused on her but her IP's and their family are all in the picture...waiting for the big day to arrive. It is a heady feeling and maybe one of the many reasons why some women become surrogates more then once.

 

     Could it be that she actually enjoys being pregnant? A woman who is raising her own children may have LOVED being pregnant however, as much as she adores her own kids, economically it's just not feasible to raise a dozen or more babies...so combined with helping another couple she can enjoy the experience of being pregnant again.

 

     Maybe the reward in being a surrogate is helping another family enjoy what she already has, babies.....a new generation...a branch on the family tree. Seeing the faces of her Intended Parents as she sees them holding THEIR own baby is sometimes all the incentive that some women need.

 

     Honestly I think its a combination of all of the above. Any extra money that comes into a home, through surrogacy or a raise or a windfall, is always welcomed. I have heard of some women buying a much needed car, taking their family on a dream vacation, paying off bills, paying tuition for their own child and yes, even a down payment on a house. Having the ability to help another family and enjoying all the gratitude and rewards that come with that is a wonderful feeling....one that stays with you for the rest of your life especially if the relationship lives up to what you dreamed it should be. Knowing that, as a surrogate, there is a little life out there making some very special people happy is a wonderful feeling. A heady experience that, often times,  makes a woman willing to carry for someone else again....and again!

 

 

 

 

What Surrogates and Egg Donors Need to Know About Tax Season! by Chrissy Hanisco, Esq., The Stein Law Firm, PLLC

It is income tax season; the April 15^th filing deadline is less than two months away. Many people have already filed and may even have spent their return at one of the many Valentine's Day, President’s Day, or just because sales already.

If you were a surrogate or an egg donor in 2016 and received compensation you need to be aware of your obligation to report the compensation as gross income. I have heard many donors and carriers state that the compensation was for “pain and suffering” or that they did not receive a 1099, so they do not have to claim the money as income. This is not correct. The 2015 case of Perez v. Commissioner, 144 T.C. 4 (2015), made it clear that an egg donor is required to report the compensation she received for the egg donation process. The Court made this ruling even though the contracts Perez signed with both the agency and the intended parents specifically stated that she was not being paid for her eggs and that the donor fee was for her “time, effort, inconvenience, pain and suffering.” In reaching this conclusion the Court found that in order for income to be tax-free due to “pain and suffering” that it had to be the result of damages arising out of an injury (a tort). The Court further stated that Perez’s physical pain was a voluntary act; “a byproduct of performing a service contract, and…not to compensate her for some unwanted invasion against her bodily integrity.”

Although there is not a specific case at this time relative to gestational carriers or surrogates, the analysis is likely to be the same. Like egg donors surrogates enter into contracts with agencies and intended parents about the service they will provide. Like egg donors surrogates undergo medical procedures as part of that agreement. If a pregnancy results, the pregnancy itself may be difficult and involve additional medical procedures, but even under the best of circumstances pregnancy is rarely comfortable. Many surrogates argue they should not have to pay an income tax on the money they receive for compensation of their services due to “pain and suffering.” Reading the Perez case it is easy to see why this argument would likely fail if an individual was audited.

As a result of the Perez case more agencies than before are issuing 1099 forms to surrogates and egg donors. However, it is important to remember that receiving a 1099 does not trigger the obligation to report income; receiving income triggers the obligation. I recommend that anyone who was a surrogate or an egg donor consult with a tax professional and suggest that you share a copy of Perez with that professional. If you are planning to be a donor or surrogate you may also want to consult with a tax professional in advance of negotiating your compensation, so that you may plan for what could be a significant tax liability.

Chrissy Hanisco is an attorney who practices in New Hampshire and Massachusetts with a focus on third party assisted reproductive law and adoption. Chrissy’s entire legal career has been focused on assisting others in difficult situations. After personally battling infertility she decided to use her legal skills to help others build their families. She is an active member of RESOLVE New England, the American Bar Association’s Assisted Reproductive Technologies Committee, and Parents Via Egg Donation. Locally, she is a Board member of Capital Region Mothers of Multiples. She lives in Concord, New Hampshire with her partner, their twin fraternal boys, her stepson, and their faithful, yet slightly neurotic Labrador retriever, Luke. The Stein Law Firm, PLLC

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