Surrogacy contracts are an essential part of your process, even if the intended parents and surrogate are family or friends. Agencies will absolutely require them, and if you are going independent, you should avoid working with any intended parents or surrogates who are okay working without one.
A surrogacy contract, sometimes also called a surrogacy agreement, can be overwhelming to consider, we understand that, but they’re designed to protect everyone involved equally. In some states it’s illegal to enter into a surrogacy arrangement without an executed contract, and many IVF clinics won’t begin working with intended parents or a carrier until an executed contract is in place.
Here’s a look at what the contract should contain, what it shouldn’t, and how to go about getting a good one.
What Surrogacy Contracts Do
Contracts for the purpose of surrogacy should do two main things:
- Establish expectations of behavior before, during, and after the pregnancy
- Establish expectations of expenses, compensation, and parentage
These topics are broad and without a doubt your contract will include many smaller items as well. Items of key importance include the number of live embryos to transfer, planned procedures in the event of a needed or desired reduction or termination, plans for the birth, and other expectations.
The actual contract document is lengthy, often more than 40 pages in length. You’ll typically begin the contracting phase once you’ve been formally matched. The entire process takes somewhere between 4-6 weeks to complete and will include independent reviews of the document with (separate) legal counsel for both the surrogate and the intended parents.
What Should be Included in your Surrogacy Contract
The basic principle of a surrogacy agreement is to prevent conflict in the event of potential circumstances that could arise from a surrogate situation. While it is not common for things to go awry, it can happen, and having an agreed upon legally binding contract in place in advance of any potentially complicated scenarios is the best way to prepare for surrogacy.
Bearing that in mind, it is appropriate and critical that your contract include clauses about things like:
- Mutual agreement to number of embryos to be carried by the surrogate;
- What should happen to the baby in the event of injury or death of the intended parents;
- Who has desired parentage of the child upon birth?;
- What should happen to the fetus in the event that the surrogate needs to be placed on life support?;
- Agreed upon feeling surrounding selective reduction or termination;
- Agreed upon compensation, if desired;
- Lifestyle choices of the surrogate, typically including an agreement to avoid alcohol, tobacco, and illegal drugs during the course of the agreement;
- Financial responsibility for medical bills incurred as a direct result of the pregnancy;
- Any potential travel restrictions.
These are just a few of the common inclusions that should be a part of your surrogacy agreement. Other, more specialized inclusions can be made as well. These inclusions are typically personal to the desires of the individual surrogate or intended parent. Things we have seen in the past include an obligation that the surrogate eats only organic foods during the pregnancy, and an obligation that the rights to the placenta be assured to the surrogate (for placenta encapsulation purposes) following delivery.
What’s important to remember is that your contract can, and should, be catered to you. If something is very important to you, it should be noted in your agreement.
What Should Not be Included
Even with the above statement that a contract can include many personalized items, there are some things that you likely would not want to include in your agreement. You’ll want to avoid things that are too personal or that can’t be enforced. The contract is not a place for intricate, specialized considerations that can not be changed due to extenuating circumstances. Your attorney should be able to advise you on what sorts of requests are not appropriate for the contract.
Make it Work
We cannot stress enough how important it is to work not only with a lawyer for the drafting of your contract, but to work with a lawyer who specializes in fertility and reproductive law. The reason for this is that reproductive law is managed on a state level, not a federal one. As a result, laws will vary, sometimes dramatically, from state to state. Add to that that these laws are frequently changing and you start to see why it is so crucial to work with someone who not only is well versed in the laws of your state and of the state in which your surrogate lives (if different than your own), but with someone who also focuses only on reproductive law. This means that these lawyers are well aware of the laws they need to follow, when these laws change, and have real-life courtroom experience with these contracts that they’ve written previously.
Understanding Your Surrogacy Contract
While much of the jargon and wording may be new to you and a bit difficult to understand, it is important to read every page of your surrogacy contract in its entirety before signing. It’s also important to ask questions, if you have them. And do know- it’s absolutely OK to have questions. This is potentially the first intensive contract you’ve signed in your life, and it’s totally normal to feel overwhelmed or even intimidated by the document. It doesn’t make you look unintelligent or difficult to ask questions.
Each parties lawyer will take the time to review the contract, then set up a time to speak with their client (either the surrogate or the intended parents). During this time, your lawyer will review the contract with you line by line to ensure you understand and agree to everything lined out in the contract. If either party has an issue with something in the contract, this is the time to speak up and ask for changes to be made.
Understand that there is literally no circumstance in which you don’t need legal framework for your surrogate journey. It is intended to protect the interests of both parties and is a step that should absolutely not be skipped for any reason. Whether or not you’re working through a surrogacy agency, taking the time to find legal representation with a specialty in reproductive law is an absolutely crucial first step to a successful journey.