The Surrogacy Contract

All About the Surrogacy Contract

How does the Surrogacy Agreement protect me?

The agreement sets the legal parameters of the relationship between parent and surrogate. Since the parties are working together toward a pregnancy and live birth, a good surrogacy agreement is fair to all the parties. From the parent’s perspective, a good agreement will confirm that the child(ren) is her/his from the moment of implantation. From the surrogate’s perspective, a good agreement will safeguard her from the medical bills and provide guarantee of reimbursement. From both parties’ perspective, a good agreement will set a stable environment which will promote open communication and trust.

Intended parents typically want security that the baby will be theirs and some predictability about total out of pocket expenses. The two most important variables are monthly carrier reimbursement during pregnancy and the surrogate’s obstetrical insurance coverage or subsequent out of pocket expenses if she does not have insurance covering this. If her care is not covered, the intended parents will need to purchase an insurance policy to cover the surrogate in case there is a catastrophic event.

The surrogate has a different perspective. After confirming the amount of her monthly reimbursement, she will want an assurance the money will be available for her and that she will be paid on a timely basis. The resolution is to put the funds into an escrow account held by an independent escrow agency. The week before the surrogate’s embryo transfer, the entire reimbursement is put in an escrow account, held by an agency not associated with the match.

So parents and surrogates both need to have open and honest discussions with their lawyers about their needs, their fears and their desires.

Why can’t we just use a clinic consent form to move forward with our surrogacy?

There is a common misconception that if parent and surrogate each sign a medical consent, they are under contract. The reality is, however, that a consent merely directs the IVF clinic to provide services to the patient who signs it. Since the consents are not negotiated as between parent and surrogate they do not meet the minimum standards of a contractual relationship. Absent that relationship, there are no terms to direct each of the parties through the medical and administrative aspects of the typical surrogacy relationship. Finally, parents always should have a contract because they need the assurance that the birth certificate will be in their names.

Will your firm also represent my surrogate?

No, we will not represent your surrogate. She will have independent counsel so that we can avoid any appearance of impropriety. When asked, we can recommend other attorneys who are well versed in surrogacy law to represent her.

What are the typical provisions of a surrogacy agreement?

Once we know that the reproductive endocrinologist has cleared the Parties medically and psychologically, we drafting the surrogacy contract. There are many details that the attorneys for both the intended parents and the surrogates must discuss with their respective clients. Some, but not all, include:

  • How personal identifying information is handled
  • 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
  • Everyone’s thoughts about abortion and selective reduction
  • How bedrest will be handled if there is a high-risk pregnancy
  • Whether the carrier will be given a premium for carrying multiples
  • Planning where the birth will occur so as to provide the Parent(s) an easy pathway to a Birth Certificate in their name(s)

We then send a draft to the client and meet face to face or via Skype. We 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 we will craft it to his or her particular needs. There usually is another round of edits. When the client is satisfied with the contract, we forward it to the surrogate’s attorney, who can review it with his or her client. When the surrogate, through her attorney, requests any changes, we will discuss those with our client. We can either approve or reject the changes.

At some point, everyone will agree that the surrogacy contract works. A final document will be printed, and everyone signs. We then provide the IVF Clinic a legal clearance letter so the medication cycle and treatment can be scheduled.

Generally we work lawyer to lawyer. There are some situations where the parents and surrogate meet with both lawyers present. There might be a situation where the surrogate has a familial relationship with the parents and may waive her right to use an attorney. Then there are some women who, because there were previous surrogates feel they don’t need an attorney.

How long does it take to finalize an agreement?

We typically can draft a contract within 48 hours. We then meet with the parents for as long as it takes to answer any questions and amend the document to personalize the Agreement.

After that meeting, we will re-submit the draft with the changes the parents requested. When approved, the contract is sent to the surrogate’s attorney. If the parents are motivated, we can get the contract into their hands and then to the surrogate in four days.