Why is a surrogacy contract important? What should be included in a surrogacy contract? Why shouldn’t our agreement just be a verbal agreement?
What Surrogacy Agreements Are
A surrogacy agreement (also known as a surrogacy contract) is a legally binding agreement that outlines the surrogacy process from start to finish for both the surrogate and the intended parent(s).
A well written surrogacy agreement is one of the most important parts to the surrogacy process as it provides the guides and boundaries for the intricate needs of a surrogacy arrangement.
There are two kinds of surrogacy agreements – a “traditional” surrogacy contract and a “gestational” surrogacy contract.
A traditional surrogacy contract is far more extensive due to the increased legal and emotional risks involved since the surrogate mother is biologically related to the child. There are states that do not legally permit traditional surrogacy as an option.
For the purpose of this article, we are going to focus on gestational surrogacy contracts, where the surrogate mother is not genetically related to the child. Since there is no genetic relationship between the surrogate mother and the child, it makes gestational surrogacy contracts much more common and more straightforward.
When Must This Contract Be Finalized?
Once a surrogate has been medically screened and is considered to be a viable candidate for surrogacy, the contract phase, if it has not already started, is officially started. The surrogacy contract should be legally finalized before the start of any stimulation medication begins in preparation for an embryo transfer.
Importance Of A Formal Gestational Carrier Contract
A written, formal gestational carrier contract is important to clearly address all of the elements of your arrangement. It is important to be clear about both the financial and non-financial terms of the contract for a smoother surrogacy arrangement.
1. Protects The Gestational Surrogate
A surrogacy contract legally and financially protects the surrogate. The surrogacy contract should protect the surrogate from undesirable post-birth rights and responsibilities as well as outline her responsibilities both before, during, and after the pregnancy which protects her from any unreasonable demands that could arise.
Financially, the surrogacy contract should ensure when and what compensations and reimbursements are due to the surrogate, and clearly lay out who is responsible for the pregnancy and child related medical bills.
2. Protects The Intended Parents
The surrogacy contract also legally and financially protects the intended parent(s). The surrogacy contract establishes who the legal parent(s) of the child(ren) will be and protects the rights and responsibilities of the legal parent(s).
Financially, the surrogacy contract protects the intended parent(s) from unreasonable financial requests by providing an outlined guide for what compensation and reimbursements the surrogate is owed and when.
3. Specifically Modified To The Situation Of All Parties Involved
One of the important things to recognize in a surrogacy contract is that the needs and concerns of each party will be different. Not only do we mean the surrogacy contract is specifically modified for each party, as in, the parent(s) needs versus the surrogates needs, but even more specifically modified to meet your exact needs and concerns because of your specific situation.
For example, a stay-at-home surrogate mother may not have a large emphasis on lost wages in their surrogacy contract, where a surrogate mother who is the family breadwinner may have more of a focus on making sure their lost wages for bed rest and delivery are fairly covered.
For the intended parent(s), being able to attend all the doctor appointments and be in the delivery room could be very important for them so making sure that is established in the surrogacy contract appropriately will be necessary.
4. All Parties Are Equally Represented
Making sure both parties are represented and treated fairly should be the overall goal of a surrogacy contract. Both parties should be individually represented by their own attorney to avoid any bias.
Each attorney should aim to make sure that the contract protects their parties’ roles and rights but also make sure their client understands their responsibilities and obligations.
5. Provides A Framework For Your Surrogacy Journey
The surrogacy contract provides a sturdy framework around the surrogacy process to address both the legal and financial aspects of the journey and hopefully cover all the potential scenarios that could arise during the process.
What You Should Look For
Below are some general key elements you should look out for as you navigate your surrogacy contract. Keep in mind there are state surrogacy laws and your case specific needs and circumstances that drive what will go in your surrogacy contract.
All of the compensation and reimbursement possibilities with the surrogacy process should be detailed in the surrogacy contract with clear and concise instruction of how and when those items are paid.
To protect both the surrogate and the intended parent(s) legally and financially, an experienced and reliable third party escrow service should be used to follow and carry out the financial terms of your surrogacy contract.
It is important that your escrow agent has enough experience to understand the terms of the surrogacy contract to properly and timely disburse funds, ensure the escrow balance is properly maintained and be able to effectively communicate to the both parties.
2. Pregnancy Risks And Liability
Pregnancy already comes with its own share of health risks. Surrogacy is an intricate medical process that does add some additional risk to the typical pregnancy.
The surrogacy agreement will make sure both the surrogate and the intended parent(s) understand these risks and lay out what procedures should take place should any unforeseen complications arise.
3. Social Roles Of Your Surrogate
Each surrogacy arrangement will be specific to the expectations on the use of social media, blogging, and general communication throughout the surrogacy journey. The communication desires between the parties can range greatly so having a clear understanding of what is expected and needed is critical to the relationship.
4. “What-If” Situations
The surrogacy contract will not only discuss what will happen should everything go as planned but it should cover the “what-if” scenarios. These “what-if” situations can happen before, during, or after the pregnancy.
Some examples that should be addressed in the surrogacy contract is a failed embryo transfer, multiple pregnancies, medical complications, bed rest, c-section delivery, or even an after birth “what-if” situation such as the loss of a reproductive organ.
5. Sensitive Issues
Sensitive issues can be very hard to think about, much less discuss. However, the surrogacy contract needs to discuss sensitive issues to make sure all the parties are clear and understand what needs to happen if they arise.
Some examples of some of the more sensitive issues would be selective reduction, pregnancy termination, the passing of any of the parties of the surrogacy arrangement, or emergency medical issues for either the surrogate or the baby.
6. Agreement On The Surrogate’s Health Conduct
Much like the social roles above, each surrogacy arrangement will be specific to the expectations of the surrogate before the embryo transfer and during the pregnancy.
These conduct restrictions will range from the surrogate’s diet to her travel plans or even her extracurricular activities. Some contracts will be very basic and stick with the standard items like no smoking, drinking, and illegal drugs language.
Other contracts will add on to this list with a much longer list of things to not consume, limit travel after a certain gestational week or distance from home, and even clarify the use of things like roller coaster, motorcycle use, and other more potentially dangerous activities while pregnant.
7. Insurance Coverage
The surrogacy agreement should address how health insurance and related medical costs of the surrogate and child will be addressed.
Normally, if the surrogate is not already a part of a surrogacy friendly health insurance policy, the intended parent(s) will be responsible for paying for a health insurance policy that should cover through the postpartum appointment (or if there are complications, potentially longer).
The surrogacy agreement should also clarify that any costs that insurance doesn’t cover related to the surrogacy is covered by the intended parent(s).
Additionally, the surrogacy agreement usually states that the baby’s medical costs are the sole responsibility of the intended parent(s).
There will normally be clauses in the surrogacy contract that obligates the surrogate to use the insurance wisely, such as choosing in-network physicians and notify the intended parent(s) of any potential urgent medical situation that could add unexpected medical costs.
8. Court Order Declaring Parentage
Both the Intended Parent(s) and Surrogate will need to be familiar with what is required for the parentage process. Depending on where you live, the parentage process will vary, but there are steps that take place before and after the baby is born. This process is key to defining each party’s legal rights and responsibilities.
Gestational Surrogacy Lawyers’ Role in Creating A Contract
The initial goal of the gestational surrogate’s lawyer will be to make sure the surrogate understands all the points covered in the surrogacy contract.
Hopefully, if the surrogate is working with an agency, there is a cross reference check to the agreement the surrogate signed with the agency to confirm all of the items that the surrogate was previously promised have been translated into the surrogacy contract.
It is important to note, that the surrogate’s understanding should not only be for all the compensation items but should also understand the social roles and conduct expectations as to not fall in breach of contract.
Why Independent Contracts And Templates Are A Big No-No
While this may seem like an inexpensive and quick way to get a surrogacy contract in place, it is not recommended for several reasons.
First, there are the state specific laws that need to be addressed to make your agreement uphold in a court of law.
Second, there are many clinics that will not work with you without a proper surrogacy contract executed by a licensed attorney experienced in reproductive law.
Third, you could end up inserting or removing critical and important pieces of information that need to be in the contract and that could have severe legal or financial ramifications for either party named in the agreement.
In the end, trying to cut corners could cost you more time and money in the long run than if you had your surrogacy contract prepared with an experienced licensed attorney from the start.
Ensure A Legal And Seamless Surrogacy Journey
As you can see, there are very important reasons why your surrogacy contract deserves a special level of attention. The legal and financial aspects for both the surrogate and the intended parent(s) can be detrimental to the arrangement if not properly attended to up front.
Verbal or informal agreements are not legally binding. Having a well written and customized agreement tailored to you and your surrogate’s specific needs that has been fully reviewed with your attorney’s is clearly not only the best option legally, but what both parties deserve to lessen stress and complications throughout your surrogacy journey.