It’s important to understand that only qualified attorneys can review, draft, and finalize surrogacy agreements. You should never draft your own surrogacy contract to save money or because an Intended Parent or surrogate is a family member or friend. Legal contacts are not the place to cut corners, always take the advice of a licensed professional.
Surrogacy laws vary substantially across the United States. You will need to use a licensed lawyer in your specific jurisdiction. This is generally the state the surrogate resides in, but in some cases jurisdiction can be based on the residency of the Intended Parent(s) or even the location of the fertility clinic where the embryo transfer will occur.
Here are some of the things your attorney will discuss with you when you are entering a surrogacy arrangement:
- Who is involved? Is the surrogate married? If so, their spouse will need to be a party to the agreement. Is the Intended Parent married? If so, both partners need to be represented in the agreement. The agreement will also include language specifying the legal identity and residence of all parties.
- Consent to enter an agreement. All parties must be willing participants and must have the capacity to consent to a legal contract. New York state require this type of formal informed consent to include an acknowledgement of a surrogate’s “bill of rights.”
- Compensation, expenses, and schedule of payments. If not doing an altruistic (compensation-less) surrogacy arrangement, surrogacy contracts will include the surrogacy base compensation in addition to a list of expenses the Intended Parent(s) will need to cover. All Intended Parents regardless of the surrogacy fee will need to cover all medical costs associated with surrogacy such as hormones, vitamins, prescriptions and OTC medications, as well as pregnancy care such as ultrasounds and ob-gyn check ups. If a surrogate does not have surrogacy-friendly health insurance, the Intended Parent(s) will need to purchase a plan for her or risk playing potentially astronomical out-of-pocket medical expenses in the event of pregnancy complications. Intended Parents will also need to purchase a life insurance policy protecting their surrogate’s family in the event of fatal pregnancy complications. It’s typical for Intended Parents to cover lost wages for a surrogate and/or her spouse due to missed work around medical appointments, travel, pregnancy-related job restrictions, or bed rest. Additionally, if a surrogate is a mom and has young children of her own, Intended Parents are usually expected to provide reimbursement for reasonable childcare costs. If Intended Parents request a special diet for surrogates, Intended Parents will have to cover the costs of organic or other specialty foods and supplements. Most surrogate contracts include a maternity clothes budget, while some agreements also include a housekeeping budget for the final trimester and during postpartum recovery. Intended Parents are expected to cover 100% of all legal fees incurred by the surrogate who is required to have her own attorney specifically representing her interests.
- Parental Rights. Except where prohibited, surrogacy agreements explicitly provide that Intended Parents are the legal parents of any resulting child(ren). This is regardless of the genetic ties the Intended Parent(s) may or may not have to the children e.g. when using an egg/sperm/embryo donor. Agreements usually specify custody, including in the event the Intended Parents are unable to immediately retrieve their child(ren) at birth (e.g. due to travel delays/restrictions), or in situations where the Intended Parents split up/get divorced before birth. Surrogacy agreements include provisions by which Intended Parents appoint a guardian in the event of incapacitation or death prior to the birth of the child(ren). While some surrogates will volunteer to temporarily care for children on behalf of delayed Intended Parents, others insist that IP family members or a hired nanny service step in when Intended parents cannot.
- General responsibilities and obligations. Surrogacy contracts will include the responsibilities of each party during the process, including a commitment to honor all financial and ethical obligations. Surrogates will be expected to follow a pregnancy-safe lifestyle, including following doctor’s orders on diet and prohibited activities. Surrogates will also face travel restrictions including a ban on international travel and restrictions on domestic travel starting around 24-26 weeks.
- Medical procedures and birth plan. Surrogacy agreements include a list of medical procedures related to surrogacy including embryo transfer as well as prenatal care and a preferred birth plan/expected delivery location. Surrogacy agreements include who makes healthcare decisions for the surrogate if she becomes incapacitated (this is usually her spouse or partner), and remuneration in the event of organ loss such as an emergency hysterectomy.
- Confidentiality. While you may think this is only for high-profile celebrity surrogacy, most surrogacy agreements will acknowledge that all parties must respect the privacy rights of each other.
- Termination or breach of surrogacy contracts. Surrogacy agreements include provisions for what happens if a surrogacy contract is terminated, or if there’s a substantial breach in the agreement. Surrogacy agreements can generally be terminated fairly easily until there’s a confirmation of a positive pregnancy. After pregnancy confirmation, there are provisions outlined to protect both sides in the event of a breach or termination.
- Jurisdiction. Jurisdiction is always specified identifying the state and local laws the contract will be enforced under.
The list above is not meant to be a final list of everything that goes into a surrogacy contract. Additional provisions may be included (or removed) depending on locality and unique individual circumstances.
When drafting surrogacy contracts, you will need to consider all aspects of surrogacy. Omitting crucial safeguards can happen without the help of an experienced attorney. Surrogacy regulations are incredibly complex and vary widely by jurisdiction. Make sure your attorney is well versed in reproductive law so that he/she can draft provisions designed to protect you. A common mistake is not starting a surrogacy arrangement with clear communication and expectations from both sides. There’s nothing like a surprise restriction showing up in the legal phase of surrogacy as a way to build mistrust. Always make sure you clearly express your needs during matching.
Surrogacy agreements must also address parental rights and legal parentage in a way where there is no ambiguity. Surrogacy is a costly financial endeavor, a fully funded escrow account is nearly always required at the onset of a surrogacy arrangement. Surrogacy contracts must address potential complications and various medical scenarios, including twins/multiples and how all parties feel about selective reduction or termination. It’s a good idea to work out a dispute resolution process as well. This can prevent costly litigation should conflicts arise.
Every surrogacy arrangement is unique and comprised of individuals with separate needs and visions for what a successful journey looks like. Professional legal advice is necessary and only a qualified attorney should be drafting your comprehensive surrogacy contract. If you would like a list of surrogacy professionals, please see Surrogacy Place’s attorney directory.