By Roland Salloum, Esq., SeedTrust Escrow
If there’s one thing Americans can expect from the presidency of Donald J. Trump, it is the unexpected. President Trump has issued a total of 19 executive orders as of February 3, 2017, at which point he’d been on the job as the Commander in Chief for just 15 days. His orders range from a directive for the Treasury secretary to review the 2010 Dodd-Frank financial regulatory law to an order instructing federal agencies wishing to introduce new regulation to first abolish two other existing regulations.
With President Trump’s administration now actively pursuing legislation, it is possible that a new federal policy could be pursued, which impacts the surrogacy process. As far as current legislation in the US, family legal codes only cover (for the most part) surrogacy through laws and regulations set at the state level. The closest any federal policy comes to impacting surrogacy is the landmark Roe v. Wade decision, which establishes legal rights on the federal level regarding the termination of an embryo or fetus (which could be exercised by a surrogate).
What Constitutes Federal Policy?
There is a difference between legislation and federal policy. While the former is a law of the land that legally governs decision-making and the enforcement of certain codes, a federal policy is much different. In general, a policy is any principle that guides the decision-making process. While both policy and legislation can be used to maintain order in a society, policy carries no legal weight.
Specifically speaking, a federal policy is an established outline for a goal set by the federal government of the United States. Policies are used to guide the decisions of the federal government, and are of an informal nature. While in some cases policy can be used as a guiding force to create new laws, policy is generally restricted to being a statement of the intentions of the federal government.
A Look at Current Laws
Each individual state currently has the right to put in place any laws it sees fit to govern surrogacy and related family issues within state borders. Only The Uniform Child Custody Jurisdiction and Enforcement Act (1998) provides a uniform code of conduct for how states should handle child custody cases when the parents or guardians live within or move to separate states.
As that law exists today however, each state is free to adopt or reject it in whole or in part depending on the legislative views of the individual state. With the exception of Massachusetts, all US states have adopted that law.
Problems with the Lack of Federal Policy on Surrogacy
Given the fact that each state in the US can set its own legislation impacting surrogacy and family matters, there are problems that arise with frequency under the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJE).
First, the lack of federal policy regulating surrogacy matters in the United States leaves too much room for individual states to set their own legislative mandates. For example, if intended parents live in one state and a surrogate lives in another, they now have to navigate the complex legal codes of two different states on top of all the other matters involved in the surrogacy process.
Secondly, the fact that the UCCJE does not address adoption is also a sticking point for parents-to-be. Adoption is used by intended parents to take legal custody of a child from the surrogate. With each state free to set its own adoption laws, yet complex layer of state laws is added to the surrogacy process.
Why is this a Problem?
The lack of a clear, concise federal policy governing surrogacy and related family matters is important because as the system operates now there is too much flexibility for states to set different regulations. Further, when legal cases are brought during a surrogacy, there is a potential for rulings on a matter to happen in jurisdictions different than where the intended parents live, meaning their rights may not be protected to the same degree in a different jurisdiction.
What is Needed Going Forward?
The nation is in need of federal policies that establish clear, concise legal code to govern surrogacy matters. Establishing a new federal policy would remove the varying legal codes that now exist at the state level, and present all parties involved in surrogacy with a uniform set of laws governing the process. This would protect the rights of both the intended parents and the surrogate throughout the process, and remove a great deal of stress that exists under the current system of state-by-state laws.
With President Trump now in office, the unexpected has become possible on a seemingly daily basis. Although surrogacy rights and a new federal policy don’t appear to be at the forefront of legislative discussions at the moment, the Affordable Care Act has been open for intense debate in Washington DC. Alterations to the Affordable Care Act could impact the responsibility for and cost of maternal care for surrogates. SeedTrust will dive deeper into the topic of the Affordable Care Act and what potential changes could mean in a later post.
Secure Financial Service
SeedTrust is a surrogacy escrow service based in West Palm Beach, Florida. The company was co-founded by a CPA and business attorney with the intent of providing intended parents and surrogates with secure escrow services. Rather than leaving parents to their own devices in managing payments to a surrogate, or entrusting a surrogate company with the full funds, SeedTrust believes in a better means of tracking escrow accounts for surrogacy.
Partnering with SmartVault, SeedTrust provides disbursement and reimbursement calendars, copies of all contracts, and other relevant paperwork such as receipts and invoices to intended parents and surrogates. All of these documents are available through a secure online network 24/7, ensuring both sides can view all relevant documents in real time.