What is included in a surrogacy contract and why.
The surrogacy contract (or surrogacy agreement) is a vital part of your surrogacy journey and is drafted as soon as your gestational carrier passes her medical screening. This contract is separate from the contract you sign when you choose and agree to work with your surrogacy agency. In this article, we go over the most important clauses included in a surrogacy agreement, average costs, timelines, and why it’s so important to have one.
What is a surrogacy agreement?
A surrogacy agreement sets out the rights and obligations of the gestational carrier and the intended parents. As Assisted Reproductive Technology (ART) Attorney and Founder of International Fertility Law Group Richard Vaughn explains, “the purpose of the surrogacy agreement is to allow each party to state their intentions, and their responsibilities to one another. The agreement will clearly state that the surrogate does not intend on parenting any resulting child(ren) and does not wish to have physical or legal custody of any resulting child(ren). The surrogacy agreement will also define the rights and responsibilities of the assisted parents.”
What does the surrogacy attorney do?
The surrogacy attorney (also known as fertility lawyer):
- Prepares the surrogacy agreement between the gestational carrier and the intended parents
- Goes into court to obtain a court order stating that the intended parents are the legal parents – in some states this is done before the birth and in others not until after the baby is born.
- Our US Surrogacy Law Map provides detailed information on the states that allow pre-birth orders (these are generally more surrogacy friendly states and are more preferable to intended parents) and those where only a post birth order is possible.
- Ensures that the intended parents’ name appears on the birth certificate
Experienced surrogacy attorneys may also offer the following additional services:
- Guardianship documents
- Estate planning portfolio
- Advanced healthcare directives for signature
- Power of attorneys
- Drawing up a will
What is included in a surrogacy contract?
Laws on surrogacy vary from state to state. Your surrogacy agreement will be based on the laws in the state where your gestational carrier lives and outlines each party’s rights, roles and obligations before, during and after the pregnancy. Generally, surrogacy agreements include clauses on:
- State Law: The state laws and regulations governing the agreement
- Rights and Obligations: The rights and responsibilities of the gestational carrier and the intended parents, including the role of each party.
- Intentions: The parties’ intentions, namely that the Intended Parents are sole parents of the child(ren) and that custody of the child is relinquished to the parents as soon as possible after the birth. It also states that the gestational carrier and her husband (if any) have no claim to physical or legal custody of the child.
- Financial Terms: This includes the gestational carrier’s reimbursement schedule, screening costs, legal fees, psychological support, escrow account service fee, maternity wear, travel expenses, contingency costs, and compensation should the pregnancy not proceed to term.
- Medical Care: Intended parents are responsible for the medical and psychological well-being of the gestational carrier, as well as medical and life insurance, provided the carrier isn’t already covered (in which case, the intended parents may still have to pay a fee to offset her coverage). This provision also confirms that the gestational carrier is aware of and accepts the medical and psychological risks of the pregnancy. It’s important to also note here that the gestational carrier has the right to choose her own OBGYN throughout the pregnancy. The intended parents must ensure they have health insurance for the child.
- Health Matters: Agreement on general health aspects to ensure a healthy pregnancy. This includes diet, travel, dangerous activities, and vaccination (if, as an example, it’s important to you that your carrier continues to receive boosters against COVID-19, then you should discuss it up front to ensure you’re working with a gestational carrier who is comfortable with this expectation, and then explicitly include in the contract).
- Mental Health: Counseling for all parties throughout the contractual agreement
- Communication Guidelines: Outlines communication between all parties during pregnancy and beyond.
- Conception: Whose egg and sperm will be used, if the embryos will be transferred fresh or frozen and if frozen, whether or not PGT-A or PGT-M testing was done. This clause also outlines the number of embryos to transfer, where the transfer will take place, how many attempts will be made and details around the intended parents’ involvement in medical decisions. It also addresses difficult subjects, such as pregnancy termination or reduction should the situation arise, and what happens in the case of a miscarriage or still birth.
- Genetic Relationship: the contract addresses all eventualities, even if extremely unlikely. This includes a plan in case of an embryo mix up or any other situation where the child does not have the planned genetic relationship to the parents.
- The Birth: Details on what happens once the gestational carrier goes into labor, who will be present at the birth, and other planning matters, as well as the process for the parents to be listed on the child’s birth certificate.
- Risks, Liabilities and Conflicts: Written resolutions for all “what ifs”. This part will also indicate where any court action can take place in case of disputes as well as alternative dispute resolution provisions. It also addresses what would happen if the intended parents divorce or separate, or if one of them dies or becomes disabled. This includes estate planning documents that name guardians and trustees of the child, and also the person responsible for ensuring that the surrogacy agreements’ financial obligations are all met.
- Confidentiality: This clause sets out privacy issues, namely that personal, medical and other information about the gestational carrier and the intended parents remains confidential. It also addresses considerations such as blogging and sharing on social media, including to what extent.
As we’ve already noted, there are differences between surrogacy agreements as this greatly depends on the state where your gestational carrier lives, as well as your specific case. It’s important to consult with your fertility lawyer to see that what is important to you has been included and is thoroughly covered.
Once you have a first draft, read your entire contract word by word and make sure that you understand each and every provision. Surrogacy contracts include important legal concepts that you need to get familiar with in order to truly understand your rights and responsibilities as well as what you can expect and not expect. Get in touch with your attorney if anything is unclear and ask as many questions as you need to before moving forwards as comfortable and informed as possible.
What is the process for completing a surrogacy contract?
This may differ according to the fertility lawyer you’re working with, but generally:
- The process starts once you have matched with your gestational carrier and she has been medically cleared
- A first draft is prepared which is sent to you for review. At this stage you have the option of asking as many questions you’d like as well as suggesting edits or revisions
- Once you approve the draft, it is sent to the gestational carrier who reviews it with her attorney. The gestational carrier may request changes. These will be reviewed by your attorney and you will be notified of the edited provisions. Your attorney will negotiate on your behalf to finalize a version that is acceptable to both parties.
- The finalized agreement is sent out to you and the donor for signing
- Once both parties sign the agreement, your attorney prepares a legal clearance letter informing your fertility provider that the cycle can proceed.
How long does it take to finalize a surrogacy agreement?
This depends on the time it takes for you to revert with questions, comments, and requests for edits once you receive a first draft – as well as the time it takes for your gestational carrier to review the contract. On average, this process takes 3-4 weeks. For a more detailed overview of the time it takes to complete a surrogacy journey, check out our article The Surrogacy Process: A Timeline.
How much does a surrogacy contract cost?
Intended parents pay for their own and their carrier’s attorney, for the drafting of the contract, and for the establishment of parentage. This can cost anywhere from $3,750 to $15,500 and greatly depends on the state where you are pursuing your surrogacy journey. Our article How Much Does Surrogacy Cost? provides a breakdown of all the costs involved throughout the entire journey – including the ones outlined in this article.
Can I use a template surrogacy agreement?
While less expensive in the short term, ART professionals advise against using a sample or template surrogacy contract. Without the support of an experienced attorney, you may encounter difficulties when securing your parental rights as well as leaving you susceptible to life-long risks. Adoption and ART Attorneys at Jennifer Fairfax LLC list 6 reasons why a surrogacy contract is important:
- It protects the gestational carrier
- It protects the intended parents
- Unlike a sample surrogacy agreement, it is specifically tailored to your situation
- Since it’s required that each party is represented by their own attorney, the contract ensures that “all parties are equally advocated for”
- It serves as a guide for your surrogacy journey and addresses all potential scenarios
- It clearly points out each party’s rights, responsibilities and roles throughout the process and beyond.
The surrogacy agreement is an extremely important part of any surrogacy journey. It protects all parties involved – intended parents, gestational carriers and the future baby. The surrogacy process can be an emotional rollercoaster, so having a roadmap with all potential scenarios covered can give you additional peace of mind, allowing you to focus on and prepare for the next step of your journey: parenthood.
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