Surrogacy contracts. What you need to know

The surrogacy contract is of decisive and crucial important  for both Intended parents and surrogate. This legal document outlines expectations and protects the Parties from risks and liabilities in the future program.
— Anastasia Herman law office team

The surrogacy contract is one of the most important legal documents of every surrogacy process since it guides the entire surrogacy journey, outlines each party’s rights and responsibilities throughout the whole procedure.

In case the surrogacy contract is comprehensive and done correctly, it will help to avoid misunderstanding and disputes along with the protection of everyone involved in the surrogacy process: the intended parents, the surrogate mother and the baby.

The surrogacy agreement is a collaborative effort, with each party contributing to the terms that are included. It is essential to consult a legal professional on every level of the procedure from drafting to negotiating the contract. Such actions are extremely important in order to finalize the terms and to evaluate the contract later. This necessary security measure can prevent significant negative consequences for the signatories in the future. The lawyer will review the contract from the first to last page, making sure everything contained in it is correct and the client understands all facets of the document. This is the client’s contract and  it will be crafted to his or her particular need.

It is important for the Intended parents and surrogate to negotiate via their legal professional, for the latter  to act as each party’s ally, representing their client’s interests and ensuring the final contract is fair and balanced. Without any legal support, the Intended parents and surrogate would need to negotiate directly, which can be stressful and damaging to their relationship.

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.

Every surrogacy contract will look somewhat different based on 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, etc.

  • The risk 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.

  • Arrangements that the Intended parents will make on how to reimburse the surrogate over the course of the pregnancy so that the money is safe and any disbursements are made through a fiduciary.

  • How bed rest will be handled if there is a high-risk pregnancy

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 lawyer who knows what to look for in the contract.

Some surrogates and Intended parents assume 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 legal professional who can create a strong legal surrogacy contract.