Understanding Surrogacy Contracts
This legal contract is critical for both intended parents and surrogates — not only to outline expectations but protect themselves from risks and liabilities.
The surrogacy contract is one of the most important pieces of every surrogacy process. The contract guides the entire surrogacy journey, clearly outlining each party’s rights, roles and responsibilities before, during and after the pregnancy.
When the surrogacy contract is comprehensive and done correctly, it can help limit disputes and miscommunication while protecting everyone involved in the surrogacy process: the intended parents, the surrogate, and most importantly, the baby.
Below, learn more about the process of drafting and negotiating the contract and find tips for what to look for in your own surrogacy agreement.
Drafting and Negotiating the Surrogacy Contract
The surrogacy agreement should be a collaborative effort, with each party and their respective attorney contributing to the terms that are included.
Generally, the intended parents will work with their attorney to draft the initial contract, which will then be sent to the surrogate and her attorney for review. The surrogate will work with her attorney to ensure her requests and interests are represented, make any necessary changes and send it back to the intended parents’ attorney. The two attorneys will continue to negotiate the contract until everyone is happy with the terms that are included. The contracts can then be signed, and the intended parents and surrogate will move forward with medical procedures.
It is important for the intended parents and surrogate to each have their own attorneys to negotiate the contract. The attorneys will act as each party’s ally, representing their client’s interests and ensuring the final contract is fair and balanced. Without attorneys, the intended parents and surrogate would need to negotiate directly, which can be stressful and damaging to their relationship, and some of the language may not hold up in courts.
The contract needs to be completed and signed prior to beginning any medical procedures. It is necessary to protect all parties during the medical process, and most fertility clinics will not perform the surrogate’s medical procedures until the contract is in place.
What to Look for in the Surrogacy Contract
Every surrogacy contract will look somewhat different based on state surrogacy laws, as well as each party’s individual needs and circumstances.
In general, every surrogacy contract should cover the following elements:
- Finances, including the surrogate’s base compensation, as well as additional compensation the surrogate may receive for invasive procedures, carrying multiples, going on bedrest, etc.
- The risks and liability associated with the pregnancy
- The surrogate’s health and her responsibilities to take care of herself and the baby throughout her pregnancy
- An agreement on sensitive issues such as selective reduction and termination, if that should become necessary
- Who will be present at prenatal appointments and birth
- And more
There are many variables and “what if” scenarios in surrogacy, which need to be addressed in the contract. It is important to take all possible outcomes into consideration and work with an experienced attorney who knows what to look for in the contract.
The Dangers of Independent Contracts
Some surrogates and intended parents think it would be more convenient to simply download a template surrogacy contract online. While there are many websites that offer free downloads of sample surrogacy contracts, it is never advisable to attempt the surrogacy agreement without the proper legal representation and counsel.
Surrogacy contracts found online tend to be short-sighted and generic. They don’t usually account for each party’s individual needs and circumstances, and they certainly do not cover all of the possible outcomes and variables that could affect the course of the surrogacy arrangement. This can lead to extreme legal consequences, as well as an increased chance of disputes and misunderstanding between the surrogate and intended parents. Without a strong legal contract, there is virtually no protection in place for the surrogate, the intended parents or the child.
The goal throughout every surrogacy process should ultimately be to protect the baby and his or her best interests. While the legal process may seem daunting, it is worth it to put forth the necessary time and effort and to work with an experienced attorney who can create a strong legal surrogacy contract.
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