Understanding Surrogacy Contracts:

For the Intended Parents and the Surrogate

A surrogacy contract is a legally binding document that is essential for the intended parents of the child and the surrogate. The surrogacy contract not only outlines the expectations for both parties, but it also serves to protect both parties from any risks and liabilities. For this reason, the surrogacy contract is one of the most vital parts of the entire surrogacy process. This legal document will guide the entire surrogacy as it develops. It will clearly outline the rights of each party by declaring each member’s responsibilities before, during, and after the pregnancy.

When a surrogacy contract is inclusive and completed correctly, it can limit disputes and miscommunications between parties. It can also protect every person involved in the surrogacy process, which includes but is not limited to:

  • The intended parents of the unborn child,
  • The surrogate carrying the unborn child, and
  • The child.

It is important for all parties to understand their surrogacy rights. This article outlines the process of drafting and negotiating the contract. It will also provide tips on what should be included in a surrogacy contract. If you or someone you know is considering entering into a surrogacy contract, obtaining the assistance of a qualified surrogacy attorney can be the best source of support. Contact an experienced family law attorney who can help you understand the best options for your specific case.

Planning and Consulting the Surrogacy Contract

The surrogacy contract should be a cooperative effort. Each party, along with their respective attorney, should make dutiful contributions to the terms and conditions that create a wholesome surrogacy contract.

Typically, the intended parents of the child will develop the initial contact under the guidance of their attorney. The finalized draft will then be sent to both the surrogate and her attorney for a revisal. Both the surrogate and her attorney will work together to make sure that her requests and her interests are represented in the contract. They will also be responsible for making the necessary changes needed and will return the document back to the intended parents and their attorney for further review. Both parties will continue to negotiate the terms of the contract until they reach an agreement. Once this process has been completed, both parties will sign the contract and will proceed to move forward with the medical procedure that will incite the pregnancy.

Be Weary of Independent Contracts

It might seem convenient to draft a surrogacy contract based on a template found online. While some sites offer free sample surrogacy contract downloads, these contracts rarely serve the entire needs of both parties. Surrogacy agreements found online can be too generic. They usually do not interpret each party’s individual needs or circumstances. They also will not cover all possible scenarios that could affect the progression of the surrogacy arrangement. Independent contracts could ultimately lead to extreme legal consequences, and an increase of possible disputes or misunderstandings between both parties. Without a resilient legal contract, both parties become susceptible to legal problems. Create your own surrogacy agreement that satisfies your unique situation.

Finding the Appropriate Legal Representation

Another fundamental step in the development of a surrogacy contract is that both intended parents and the surrogate are encouraged to have their own separate attorneys. Depending on the local jurisdiction, this may be mandatory. Having separate attorneys will ensure that both parties have an equal voice when it comes to the contract negotiations. While not allowable in all states, both parties may have the opportunity to negotiate without the support of attorneys. It is important to understand, however, that following this route means both parties must negotiate directly. This could prove stressful and damaging to the party’s relationship. Further, the surrogacy contract could lack the necessary language to be accepted and or upheld in court.

What You Need for a Successful Surrogacy Contract

The surrogacy contract has to be fully completed and signed by both parties before any medical procedures are initiated. It is absolutely essential to safeguard all parties throughout the medical process, and many fertility clinics will refuse to perform any of the surrogate’s medical procedures unless the contract is completed.

Every surrogacy agreement will be slightly different based on the jurisdiction law in which the surrogacy contract or surrogacy itself will be completed in. The contract itself will also vary depending on what each party has requested. Generally, each contract should have the following elements:

  1. An understanding of the finances, including:
    1. The surrogate’s compensation
    2. Other financial components that the parties have decided to cover
    3. The set compensation if the surrogate carries multiple fetuses
    4. Compensation set for recovery
  2. Risks and responsibilities associated with the pregnancy
    1. The surrogate’s wellbeing and the responsibility she will assume to care for the child throughout the pregnancy, as well as herself
  3. An understanding on delicate issues
    1. Both parties shall mutually agree on how to handle issues such as the possibility that the pregnancy must be terminated for whatever reason

Surrogacy: The Bottom Line

It is important to understand that this is only a limited list of all of the many factors that should be considered in a surrogacy contract. It is vital to consider all possible scenarios and work with a qualified and experienced family law attorney who understands what to look for in the surrogacy contract.

Finally, the purpose throughout this process should be to protect the unborn child and his or her best interests. While a surrogacy contract and its legal process may seem intimidating, it is worth the time and effort to work with a knowledgeable and qualified attorney who can develop a solid legal surrogacy contract.