IPSingleDad

Legal and Escrow

5 posts in this topic

Hi y'all, first post here.  Single guy, straight, 39-years old.  Started my journey seven-months ago, and about 40% through.  Picked a great fertility clinic, egg donor, have blastocysts ready, finally matched with a wonderful surrogate (this was the longest/hardest part so far), and got medical screening clearance.  We are drafting contracts now.  My questions:

 

1)My surrogate is experienced; I suggested we use one of her old contracts and then do a simple doc review with a lawyer for her, but agency strongly advised against that.  Any reason why each contract from scratch?  $3800 is a lot for copy and pasting, which is what I am certain most of these lawyers do, and my surrogate and I are on the same page.

2)Agency went ahead and started the lawyer drafting.  I thought this was usually a separate choice for IP?  Agency assures me lawyer is independent, said thought I had verbally ok'd when we first met six months ago.  Agency is a small shop recommended by someone at my clinic, so this could have been an honest mistake; I actually like the more individualized attention, but there are aspects that seem somewhat "fly-by-the-seat-of-the-pants," like moving forward with this lawyer without my explicit say-so.

3)Agency is advising using same lawyer for birth order (PBO).  Is this a good idea; talking with other IPs, they said use a separate lawyer, but not sure if there is utility in that.  Lastly,

4)Escrow - how much do you usually fund; is it all of the surrogate comp and fees at once?  Who manages?  Agency is saying use same lawyer for escrow, but the agency will review receipts, etc. with me having access to see what's going on.  Under this arrangement, I'm not sure what the lawyer's doing.  I am not very comfortable with this idea, because it does not seem independent and concerned basically about giving the agency a blank check.  Is this a typical arrangement, are there third party escrow companies you recommend, and standard charge for their services?

 

Surrogate is in SoCal, San Diego/L.A. area.  Thanks for your help, and if there are any single guys contemplating a journey, feel free to ask me any questions on my experience so far!

 

Edited by IPSingleDad

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7 minutes ago, IPSingleDad said:

Hi y'all, first post here.  Single guy, straight, 39-years old.  Started my journey seven-months ago, and about 40% through.  Picked a great fertility clinic, egg donor, have blastocysts ready, finally matched with a wonderful surrogate (this was the longest/hardest part so far), and got medical screening clearance.  We are drafting contracts now.  My questions:

 

1)My surrogate is experienced; I suggested we use one of her old contracts and then do a simple doc review with a lawyer for her, but agency strongly advised against that.  Any reason why each contract from scratch?  $3800 is a lot for copy and pasting, which is what I am certain most of these lawyers do, and my surrogate and I are on the same page. Because most every attorney out there copyrights their contracts. If you take a contract that was written by 1 attorney and try to make another attorney use it, it IS theft. Attorneys work (most of them anyway) hard on drafting their own contracts and while yes, through negotiations things are added or removed which can make some seem like "all the others", it is individual and unique to each attorney. I have seen some agencies that use an "in house" attorney sometimes c/p from contract to contract what they see elsewhere, but that is never recommended.

2)Agency went ahead and started the lawyer drafting.  I thought this was usually a separate choice for IP?  Agency assures me lawyer is independent, said thought I had verbally ok'd when we first met six months ago.  Agency is a small shop recommended by someone at my clinic, so this could have been an honest mistake; I actually like the more individualized attention, but there are aspects that seem somewhat "fly-by-the-seat-of-the-pants," like moving forward with this lawyer without my explicit say-so. 

This is a bit different. I have found that most agencies tend to "assume" that the IP's are going to work w/whichever attorney they deal w/the most, BUT the IP's should have the option to choose someone different if they want. It should not be just assumed it's a given. My 1st IP's had chosen a different attorney from the agency firm (my original agency is 2 separate entities...one is the agency but they also have an ART law firm that is run separately from the agency). My other IP's all chose to use the attorney from this law firm. The agency was fine w/either situation, but it was ALWAYS the call of the IP's, period. 

3)Agency is advising using same lawyer for birth order (PBO).  Is this a good idea; talking with other IPs, they said use a separate lawyer, but not sure if there is utility in that.  Lastly, The PBO most certainly does NOT need to be handled by separate attorneys. Unless you happen to be using an attorney personally where your surrogate lives, the typical "protocol" would be that the surrogate's attorney handles the PBO, because it needs to be done where the surrogate lives and will deliver. The only time you absolutely MUST have 2 separate attorneys is when you are working on the contracts. 

4)Escrow - how much do you usually fund; is it all of the surrogate comp and fees at once?  Who manages?  Agency is saying use same lawyer for escrow, but the agency will review receipts, etc. with me having access to see what's going on.  Under this arrangement, I'm not sure what the lawyer's doing.  I am not very comfortable with this idea, because it does not seem independent and concerned basically about giving the agency a blank check.  Is this a typical arrangement, are there third party escrow companies you recommend, and standard charge for their services? As both a surrogate that has been paid from an escrow acct and as a program coordinator for an agency now, the standard is the surrogate's full comp, money to cover certain fees (maternity clothes, transfer, multiples, c-section, etc) and a certain amt. (can be anywhere from $3-5000 on avg for incidentals such as travel expenses, co-pays or other medical bills, etc) W/both my original agency as well as the one I work for now, the IP's are provided a monthly expense accounting of where all of the money is going along w/copies of any invoices they want. If at any time these additional funds drop below a specific amt, then the IP's are required to fund it to bring it up to the set amt. (mine seemed to be around $3-4k in general) This money was kept in escrow until either a specific time frame following the pg, or until all medical bills have been paid out. The 1st 3x I carried, they kept it funded for 3mos after the birth. W/my last surrogacy, once I knew I had received my last bill and it was paid, I let them know it was safe to close the escrow acct. All funds remaining in the acct is then refunded back to the IP's.

 

The escrow SHOULD be maintained by a 3rd party that is not invested in the agency. Having an agency hold the escrow or have access to it is a conflict of interest, IMO, and I have seen this very situation and the agency mismanage the funds or even take the money and run. It has and does happen! Now, the programs I oversee, the surrogates DO submit their receipts to me, I make sure they have provided everything necessary, and I forward it on to the escrow company. The escrow that we use has a copy of the financial part of the contract, so that he can see #1 how it needs to be paid out and #2 what they are able to submit for/be reimbursed for/etc. Because the IP's ultimately are the ones paying for everything, we also need to have these on hand to correctly bill the IP's and provide them w/the expense report. For example, when a surrogate it ready to transfer, I book her flts, her transportation, hotel, etc, and I can't wait to get those funds from the escrow acct, so I use the company CC to pay for it, then submit these receipts for us to be reimbursed from the escrow acct and give the IP's an invoice to see how their money has been applied. I've had to use the company CC to cover med refills and other items that couldn't wait for escrow, so anything like this I also have to review and then submit. Does that make sense? 

 

Surrogate is in SoCal, San Diego/L.A. area.  Thanks for your help, and if there are any single guys contemplating a journey, feel free to ask me any questions on my experience so far!

 

 

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This is great info, thanks Traci!

I agree that 3rd party escrow is the way to go, what confused me was being told the lawyer "handles" escrow, but "[agency] am the one handling your account, and receive all invoices, and payment requests."  I'm going to clarify this, but sounds like the agency looks at the money requests, then submits to lawyer for check.  I'm assuming the lawyer then rubber stamps approvals unless something major comes up, like surrogate decides to cancel or does not go to appointments.  The no-no for me is if the lawyer just opens up the bank account, but gives the agency all the check writing power, which wouldn't provide any protection.  As an IP, it is a scary moment to prepay the agency $20k, then prefund another $60k, all before a transfer is even attempted.  That's why I was taken aback that the agency moved forward with the lawyer before I knew his name or interviewed; I don't like giving strangers an $80k blank check!

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Hi and :welcome: 

 

I don't think it's uncommon for agencies to pass along your file to an attorney that they have had success with before. If there is no exchange of money between the attorney and the agency, that should be fine. But, like Traci said, you definitely may chose a different ART/ surrogacy experienced attorney if you prefer. 

 

Regarding escrow, is the attorney licensed and bonded? Does the agency have access to the account? Are you doing a set monthly stipend or reimbursing for actual expenses as they are incurred?

I would think having the surrogacy agency look over expense reports to make sure everything is legit before sending the request to the escrow agent is a nice value add. A set monthly stipend instead of receipts for all vitamins and pregnancy supplies is a nice way to keep the books clean.  Again, you should have the right to pick any escrow agent, and the surrogacy agency should not have access to the account. 

 

Best wishes! 

Edited by beachalice

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