By Darlene M. Pinkerton
Today, there are many egg donation and gestational surrogacy agencies to choose from, some have been in business for a long time and deserve respect for the excellent and professional services they provide. Many other agencies, however, are very new, with limited experience and little or no business qualifications. Some of these agencies merely provide poor services, while some have actually committed crimes against their clients by stealing money held on the client's behalf, which of course left the intended parents and their egg donor/surrogate without any payments or recourse.
With today’s easy internet and online access, agencies are able to make themselves appear to be in business longer than they have, and to appear much more successful and honest than they truly are. Surrogacy and egg donation are expensive undertakings. Thoroughly investigate an agency before committing to their surrogacy or egg donation program, before signing their retainer, and definitely before sending them your money.
Though not a comprehensive list, here are some basic guidelines of what you should know or ask before choosing your agency.
- How long has the agency really been in business?
Assisted Reproductive Technology (ART, or egg donation/surrogacy) is a relatively new infertility treatment (first case in 1984). Most reputable agencies have been in business five to ten or more years. Few agencies have more than ten to fifteen years of matching and coordination experience, and only a couple of agencies have twenty or more years of actual agency experience. The only way you can know how much business experience an agency has is to ASK! Who owns the company? When did the company incorporate? When did it get a business license? In which state? How many cycles has this agency coordinated during its years in business? How many in this past year?
- Is the agency’s experience business experience or personal experience?
There is a very common marketing and advertising tactic: an agency will post its years of experience on its website or written materials without stating clearly whether that experience is as the agency, or their personal experience, or a combination of both. The only reason an agency has to not be transparent about this is because it wants to give the appearance of more years of agency experience than the business actually has. Take my own experience as an example: I have 28 years of personal experience in egg donation and surrogacy, because I did a number of egg retrievals, utilized IVF, and am now the mother of a gestational surrogate child who was created in 1989 and born in 1990. I also have professional experience in this field because I worked in a law office that specialized in third-party reproduction for a number of years and I helped match a number of families with egg donors and surrogates for two years while employed at that law office. However, A Perfect Match was not incorporated until the year 2000. Using a deceptive marketing strategy, I might say I have 27 years of experience in this field — but the truth is that A Perfect Match has 16+ years experience as a business entity specializing in egg donation and surrogate matching services. That’s a nine-year difference, and I believe it is significant and dishonest to say otherwise.
- Are the stated years of experience actually a combined total of several individuals?
This advertising tactic gives the impression of a lot more years in business—or more matching and coordination experience— than the agency actually has. Three people, each with five years of experience, does not equal 15 years of agency experience! Open and honest agencies will use the words “combined years of experience,” but many agencies do not. Know what is accurate.
Does it really matter if an agency distinguishes between its business experience and personal experience, or if it lumps together the combined years of individual employees’ experience? YES, it does! First of all, the agency should be honest and completely transparent about its experience. If they do good work, they do not have to exaggerate their level of experience. Furthermore, a short time in business may mean that agency or those employees do not have the experience necessary to provide the expert coordination and agency services you expect and need for a successful cycle.The longer the agency has existed and the more cycles it coordinates the more likely it is that the agency has gained both the solid reputation and the valuable experience needed to work through difficult situations that can arise during a cycle. Never be afraid to ask.
- An Agency For Every Person
There is a right agency for every person. Not every agency has the same office culture or business model. It is important to understand the culture of your agency so you know what to expect and so you can know your needs will be met. An egg donation cycle be completed in a short time, but a surrogacy relationship with an agency can last a year or longer.
An agency’s culture—or feel—is not determined by size alone. You may find a small agency with a very corporate feel, and a larger agency with a surprisingly personal touch and homey feel. Do you prefer a more structured and corporate agency, or would you prefer a more relaxed and personable agency? Do you prefer the more individualized treatment and personal touch of a smaller agency, or do you prefer to work with a larger agency that may brings you a sense of security?
If you can’t meet with the agency in person, you can still meet via Skype, Facetime, WeeChat, etc., so there is no reason you can’t get a virtual tour of the office environment and meet the staff members with whom you will work. There is a good agency fit for everyone, and it is important you feel like you are in a place that will meet your needs. Call. Skype. Visit in person.
Business hours and number of employees
- What Size Of Agency Means For You
Larger agencies have full-time employees in the office during normal business hours, which means you are always able to talk personally to someone who can help you immediately. Smaller agencies may have only part-time employees—or may be a single-person office that doesn’t keep normal business hours. For instance, once you are in cycle there are often times when an IVF center will call with a sudden change in protocol, medications, or appointments for your donor or surrogate—and it is critical they reach someone immediately. The lack of immediate availability of your agency could leave you, your IVF center, and your donor/surrogate vulnerable to problems during the cycle—and especially for time-sensitive situations.
Ask the agency about the number of employees working full time and part time. Ask about the agency’s normal operating hours. Is your coordinator a full-time employee and available during normal business hours, or is she only part-time employee with limited availability? What is the plan if the person coordinating your cycle is unreachable, becomes ill, or goes on vacation? Who is your backup person? If you have a full understanding of the number of agency employees, and you know whether your coordinator is full time or part time, then you can decide if you are comfortable in that situation.
Errors & Omissions Insurance
- Agency Coverage
Professional agencies should carry errors and omissions insurance (or other type of professional liability insurance) for their business. Agency coverage varies from $100,000 to $3,000,000 or more and is intended to protect a client if an agency commits an act of gross negligence or causes harm to the client. Depending on the level of coverage, the annual premium typically ranges from $5,000 to $10,000 or more. Not all agencies carry this insurance, and although you hope never to experience the need to seek restitution, it is always best to know if an agency does or doesn’t carry E&O insurance. You can ask your agency for a copy of the declarations page of their E&O insurance or professional liability insurance so you at least know if your agency does or doesn’t have coverage and the amount they have.
It is said, “If you haven’t been sued, you haven’t been in business long enough!” There are many reasons for lawsuits—some for very legitimate reasons where the agency did something wrong, but also when the lawsuit is merely a nuisance suit. Ask your agency if they have ever been involved in legal actions. If yes, ask for details as to what happened and the final outcome, if available. You can also do a litigation search, because many disputes between agency and client will not end up as an E&O claim, but may surface in a small claims, municipal, or superior court action (all of which are public records, and therefore searchable online). But remember that there is always more than one side to a story, so it is best to speak openly and honestly to your agency about any concerns.
Unfortunately, there have been far too many incidences over the past few years in which an agency suddenly closed its doors and took the client’s trust fund money. When checks start to bounce, when phone calls suddenly go unanswered, when a company simply closes its doors this has historically meant that client money was taken by the agency (or other entity). In such a case there is often little recourse for the client. To protect clients from this situation, California requires that all funds are to be held in an attorney trust account or a licensed escrow company. The best advice I can give: Do not allow an agency to hold your money for the cycle—let the following professionals hold it.
- Attorney Trust Funds
An attorney trust account is regulated by a state bar association, and the attorney is accountable to the state bar for every penny held in trust. The attorney can be disciplined for the slightest oversight, including the suspension or loss of the attorney’s license to practice law. The interest earned on the account goes to the state bar office in the state in which the attorney practices, so attorneys do not gain interest on the funds they hold. Neither is there any financial advantage to holding your funds for longer than necessary. A state bar also mandates the type of bank in which the funds can be held and the amount of insurance that must be provided by the bank. Furthermore, it is that bank which is responsible for sending the interest directly to the state bar. A law firm will generally charge a one-time fee for donor and/or surrogate trust management, and some attorneys also charge an additional per-check/invoice fee for a surrogacy cycle. You should understand how the law office will handle your funds, how often you will receive statements, and how refunds or remaining funds are handled.
- Licensed Escrow Company
Your money held in escrow is not necessarily money held by a licensed escrow company—and it’s the latter you should insist on. In California, for example, a company seeking to be licensed as an escrow company must prove they have five years of actual escrow experience (which means they have probably worked in the escrow department of a reputable company or bank) and demonstrate a minimum level of financial strength (in California, $50,000 in liquid assets). Furthermore, a company seeking licensed escrow company status must submit to a background check by the state, purchase one or more bonds (to cover such things as misappropriation of trust funds), complete an application process, and more. You should ask for the escrow company’s license and proof of bonding, as well as how long it has worked in providing escrow functions specifically for egg donation and/or surrogacy cases.You should also understand how often you will receive statements, and how refunds or remaining funds are handled.
- Bonded Agencies
Some large and reputable agencies do hold client funds outside of California—but if you choose to work with one of these agencies, you should ensure they provide proof of insurance and bonding. Bonding is no guarantee, of course, but it will show that they have taken the steps to put a system in place that protects your money, at least to some degree. Ask about the maximum amount of money the bonding or insurance covers, so you can determine if you are covered for the amount of money you are required to deposit into their account. If an agency isn’t insured and bonded, do not let them hold your funds.. Be warned by a recent scam: an agency insisted all the funds be deposited to escrow, but it wasn’t a licensed escrow company—only a holding company of which the agency owner was an undisclosed owner. She has since been indicted.
- A Note For International Families
You should be especially concerned about where your funds are deposited. It will be far more costly for you to attempt the recovery of your funds, because any legal action must be taken in the U.S. Some agencies have their international clients deposit money into the agency’s account rather than an attorney trust account or escrow company, although they do not require the same of their U.S. clients. There is no reason to treat international clients differently than U.S. clients—any client’s money should be held in a trust or escrow company. If the agency tells you they need to hold your funds, ask them to explain why they do not use an attorney or escrow. If the explanation leaves you feeling uncomfortable, do not give them your money.
Most agencies are caring and professional and have your very best interest at heart. The reputable agencies are very willing to discuss their agency program and answer all your questions - because they want you to have complete confidence in them as your agency. Once you’ve done all you can do to investigate the agency and protect yourself and your funds, then it is time to trust in the professionals you choose and enjoy the process—because it really is an amazing journey. And the end result is worth it. We wish you the greatest success in building your family.