Everything you need to know about surrogacy contract

Why are surrogacy contracts essential?

The main purpose of drafting a surrogacy contract is to provide legal protection equally to all the parties involved in a surrogacy journey. And to ensure a successful pregnancy of a surrogate mother, for which all the factors involved in a surrogacy pregnancy are disclosed in a contract, additionally agreement of both parties is a must to avoid complications or confusion amid the journey.

Furthermore, an attorney ensures that agreed factors are catered to the country’s surrogacy laws. Also, both parties must agree on the medical terms, finances, and compensation provided to the surrogate mother. Forming a right surrogacy agreement assists intended parents to obtain parentage orders by submitting a contract to court as proof. A successful journey purely relies on legal matters or formalities, for which surrogacy agreement plays an important role.

Additionally, a surrogacy contract guides the entire surrogacy journey, it outlines each party’s rights, roles, and responsibilities before, during, and after the pregnancy of the surrogate mother. When a surrogacy agreement is drafted correctly, it can avoid miscommunication and limit the disputes between two parties, and at the same time provide equal rights and protection to the child, surrogate mother, and intended parents.

Process of drafting surrogacy agreements

The process of drafting a surrogacy contract must be a collective effort from both the parties and respective family lawyers’ contribution to state essential and appropriate terms and factors in the contract.

Usually, to begin with, the intended parents and their attorney would form the first draft of the surrogacy contract, and then it would be sent to the surrogate mother and her lawyer for review. Furthermore, the surrogate mother discusses with her attorney and checks whether her requirements, requests, and interests are fulfilled within an agreement. If not she would make changes with the help of her lawyer and send it back to the intended parents for a second review.

The two attorneys keep on negotiating the terms to be included in the agreement until both parties are satisfied and happy with the terms. Once both parties agree, then the contract can be signed, surrogate mother and intended parents initiate the process of medical and IVF screenings and medications.

It is extremely important to have separate attorneys for each party so that they can negotiate by representing themselves as allies for their clients stating both parties’ interests. Without an attorney, either party would not be able to negotiate and there could be misleading terms and factors in the contract, which can create unwanted chaos in the surrogacy process. In addition, there won’t be a fair and balanced agreement when both parties negotiate directly and this could affect the relationship between both parties.

The surrogacy agreement needs to be drafted and signed before beginning with the medical process. With a perfect contract, both parties are protected for the duration of IVF procedure and most fertility clinics do not allow intended parents and surrogate mothers to begin the procedure without a surrogacy contract.

Difference between independent surrogacy contract vs forming surrogacy contract via agency

An Independent surrogacy contract is when you draft a contract by yourself without taking the assistance of an attorney or surrogacy agency. While a lot of intended parents and surrogate mothers think it would be more convenient and quicker if they directly download a surrogacy agreement template online. There are plenty of websites offering a free download of contract samples, though it is never recommended to draft a surrogacy agreement without a professional attorney or counsel.

Surrogacy contracts available online aren’t reliable and they are quite generic and short. They don’t state your requirements, interests, or your state’s laws and regulations. In addition, these short contracts do not include the terms and conditions in the case of uncertainties that can affect the entire surrogacy journey. This situation can create legal complications with an independent surrogacy contract and miscommunication and contention between two parties. Also, without an experienced attorney, no one is guaranteed legal protection for a surrogate, intended parent, and neither the newborn child.

Whereas a surrogacy agreement formed under the guidance of a surrogacy agency or professional aids intended parents and provides legal protections, gives guidance with legal matters, and ensures intended parents have a surrogacy agreement in their favor, there won’t be any complications regarding legal clause, obtaining parentage order, providing legal protection to a newborn child or travelling with the child once he or she is born (in case of international surrogacy).

The objective throughout the surrogacy arrangement must be providing legal protection to all the parties and the child in their best interests. Though the legal procedure can look daunting and quite time-consuming it is worth investing your time, energy and to work with a surrogacy agency or experienced attorney who could be your strong legal representative.

Decisions intended parents need to make before an official agreement

Before you sign a surrogacy agreement, there are certain decisions that IPs need to make and consider. We have listed below a few key points for you to remember:

• Surrogate’s responsibilities with medical and health during her pregnancy.
• Confirming the compensation of the surrogate mother and her benefits package, excluding lost wages, multiple pregnancies, and medical procedures.
• Decide who will be present at prenatal appointments
• Determine who will be present during childbirth
• The post-birth relationship between intended parents and gestational carrier like will the surrogate have a role in the baby’s life?
• Privacy of intended parent’s identities and information while finding a match.
• Will the surrogate mother provide her breast milk? If yes, then for how long? And what would be the compensation granted to her?
• Medical concerns regarding health risks and health complications.

What happens in case of disagreement between two parties?

Global Star Surrogacy takes care while matching the surrogate mother and intended parents, we try to align matches with how they would react or feel about the essential topics involved in the surrogacy agreement. While differences of opinion between two parties may arrive and it is common.

Depending on the situation, your and the surrogate’s attorney will try to draft that works for everyone. While there might be those rare situations where the difference in opinion may lead to breaking a match. This does not mean that we would not align you with another surrogate mother who would be related to your issues and struggles.

Although, we suggest that intended parents and surrogate mothers negotiate with an open-minded approach to understanding others’ perspectives and pain points. While disagreements are bound to happen but with the help of an attorney’s guidance we can work this out. We won’t force any of the parties to blindly agree with one another but having a space for understanding makes the process feasible.

Your legal representatives will assist you with various factors, it is recommended to have a candid conversation with them to get clearance in certain elements. As they have been working in this industry for years, they can guide you by explaining the process, specific requests, standard provisions, and probable changes.

Ask as many questions as you have in your mind before signing a contract, remember it protects your rights during the surrogacy pregnancy but even after the child is born, the same goes for the surrogate mother as well.

Surrogacy contract checklist

As we discussed above, how important a surrogate agreement is and how beneficial it can be for your surrogacy journey. To review, change or negotiate intended parents must be aware of surrogacy contract checklist and a few important topics and factors that complete a surrogacy agreement. We have given a detailed breakdown of surrogacy contract checklist below:

Number of embryo transfers

Usually, gestational carriers permit up to 3 embryo transfers with the gamete materials of their intended parents and or donors (if required). If in case the first transferred embryo isn’t implanted successfully, then IVF specialists would recommend moving forward with transferring more embryos into the uterus of your surrogate by checking her health.

While there are times that the intended parents or country’s law requirement demands to transfer all 3 embryos within a specific period from signing a contract to performing the embryo transfer procedure.

Travelling

Once a contract is signed, your surrogate isn’t permitted to travel abroad. After she enters the phase of the second trimester, she cannot travel to countries where surrogacy is prohibited due to unfavorable surrogacy laws. If in case she wishes to travel out of the state in her third trimester, then it must be agreed upon in the surrogacy agreement in writing and there must be approval from healthcare professionals.

Miscarriage, selective reduction, or abortion

While every intended parent wishes to have a successful surrogacy pregnancy without any complications, you can’t ignore the risk factors and chances of uncertainties in the surrogacy arrangement. This section of the contract is catered to intended parents to request termination in the case of uterus abnormalities, mental or physically handicapped child, or other chromosomal disorders, with the surrogate’s termination timeline.

All the parties must be on the same page, hence agreeing on topics like this is crucial. Although the uncertain situations are mentioned in a contract, it is difficult to determine what a court would do in the case if the surrogate breached and didn’t terminate. Intended parents must discuss with their attorney in detail about this.

Pumping/ surrogate’s breast milk

Some intended parents and gestational carriers agree to have her breast milk. If they agree to have a surrogate pump, the weekly compensation would be discussed which would be inclusive of shipping cost.

Usually, having the breast milk of a surrogate mother is beneficial for gay couples or single intended fathers. They can be relaxed and ensure their toddler has good nutrition in the initial phase.

Current state surrogacy laws

Each surrogacy contract includes a description of the country’s current surrogacy laws applicable in a particular state or region. It includes the parentage rights of the intended parents and surrogate mother, including the cost of the entire surrogacy journey and legal protection for each outcome.

Medical consent

Intended parents and surrogate mothers both must agree on a provision or contract that agrees on screening for any medical conditions or communicable diseases like COVID, AIDS, HIV, Malaria, and Zika virus. This ensures that both parties are aware of medical risks and implications or treatment for the same and regulations as well.

Financial essentials

A surrogacy agreement must outline each party’s obligation for expenses during the surrogacy journey. It also entails surrogate compensation and benefits in detail. To get a breakdown of the entire surrogacy cost, you must ask your surrogacy agency.

Parentage order

The surrogacy agreement is cited in front of the legal authority of your surrogacy destination country to ensure the enforceability of your agreement. By submitting the agreement to the court, the agreement establishes the process of obtaining parentage orders for the intended parents and declares them as legal parents, and the surrogate mother and her spouse aren’t legal parents of the child.

Unusual or uncertain results

Some topics are very difficult and overwhelming to discuss but it is essential to ensure that in case unusual outcomes occur then all the parties already know what to do. The situation with C-section, cesarean, death of intended parents while the child is born, or surrogate being placed on life support. Both parties must discuss such topics before the surrogate gets pregnant and must mention it in the surrogacy agreement.

Additional tips to look for in a surrogacy agreement

We discussed a few factors including in a surrogacy agreement, but remember every contract would look different depending on the country’s surrogacy laws and both parties’ interests, requirements, and circumstances. Hence, we have mentioned few more factors that must include in your surrogacy contract checklist

• The risk and responsibility following pregnancy
• How would regular checkups with an obstetrician be conducted?
• How will communication be held between all the parties during the surrogacy journey?
• Procedure in fertility clinics.
• What happens if a baby is born with physical abnormalities?

Are you ready to commence your surrogacy arrangement?