Surrogacy Contract: A General Guide

A surrogacy contract guides a couple through a surrogacy process defining each party's rights and responsibilities before, during, and after the pregnancy. The contract also helps limit miscommunication and disputes to protect everyone involved in the process.

What Is Surrogacy?

Surrogacy is a process that involves an agreement supported by a legal contract whereby a woman agrees to deliver a child for another individual or parents. It is a method of assisted reproduction during which the parents work with a surrogate who will carry and care for the child until birth.

Most intended parents use surrogacy to grow or start families when they cannot do it independently. However, how to outline the terms and conditions of surrogacy? The best resort here is a legal contract.

What Is A Surrogacy Contract?

The surrogacy contract is a legal agreement that includes the terms and conditions decided between the intended parents and the surrogate mother. The contract helps secure the rights of all parties while ensuring there is no dispute or discrepancy before, during, or after the pregnancy period. The surrogacy contract lays out the entire process and provides an overview of the actions of all parties.

What Is the Process of Negotiating a Surrogacy Contract?

The surrogacy agreement is a collaborative effort, and all the parties, including their respective attorneys, must contribute to the terms. The intended parents work with their attorney to draft the initial agreement, which is then sent to the surrogate for review. The surrogate will consult her attorney to ensure her requests and interests are represented. The latter will make the required changes to the agreement and send it back to the intended parents and their attorney. The process continues with the two attorneys negotiating the contract until both parties are satisfied with its terms and conditions.

They can sign the contract and move forward with the medical procedures once done with the negotiations. The parents and the surrogate should have their respective attorneys negotiate the contract before signing it. The attorneys act as each party's ally and represent their interests to ensure a fair and balanced surrogacy contract. Both parties must sign the surrogacy contract before beginning any medical procedure.

What Factors Are Covered in a Surrogacy Contract?

The surrogacy contract may vary according to state and federal laws and individual preferences and circumstances. However, most surrogacy contracts cover the following factors:

• Finances that include the surrogate's base compensation and additional expenses for invasive procedures, going for bedrest, carrying multiple children, etc.
• The risks and liabilities associated with the surrogate's pregnancy.
• The surrogate mother's health-related responsibilities so that she can take care of herself and the child.
• An agreement addressing sensitive issues, such as termination and selective reduction.
• The individuals who will be present during the prenatal appointments and childbirth.

What Are the Prerequisites that Must be Addressed in the Surrogacy Contract?

The surrogacy contract is extensive and addresses the following prerequisites and other topics:

• Governing Law and Dispute Resolution

  The surrogacy contract indicates which state law will govern the entire arrangement and the location where the court action will take place in case of a dispute. A few contracts also include alternative dispute resolution provisions that parties can mediate before seeking court action.

• Legal Counsel

  The contract also indicates that both parties must have separate qualified legal counsels who will review and understand the terms and negotiate changes if necessary.

• Medical Support and Group Counseling

  The surrogacy contract includes medical health counseling for all parties made available throughout the agreement process.

• Conception

  The contract includes obligations, such as the number of attempts the parties will make for pregnancy, the surrogacy tenure, the embryo type, and other medical requirements.

• Medical Instructions

  The surrogate mother agrees to a few reasonable restrictions mentioned in the contract on her nutrition, travel, and other activities. Medical instructions are added to the surrogacy contract to ensure a safe and healthy pregnancy.

• Parental Rights

  The contract will specify how to address parental rights, including how the intended parents will be established as the child's legal guardians and when the surrogate mother will be relieved of all roles and responsibilities related to the child.

• Custody

  The surrogate contract ensures that the intended parents get immediate custody of the child upon birth. The legal document often has a pre-birth order to resolve everything instantly after the child's birth.

• Divorce, Separation, or Marriage

  The contract also addresses what happens if any parties intend to get separated or divorced.

• Child's Name and Birth Certificate

  The surrogacy contract includes a section that deals with the medical procedures and ensures that the intended parents get listed on the child's birth certificate.

• Payment of Expenses

  The contract also includes the payment details to ensure zero discrepancies in the surrogacy process. However, state laws may vary regarding the amounts paid to surrogate mothers.

• Breach of Agreement

  The surrogacy contract defines what constitutes a material or a non-material breach by either of the parties and specifies the remedies for the non-abiding party. The same section also includes the notice and cure provisions related to the breach of the agreement.

• Miscarriage, Stillbirth, or Death of the Child

  The contract also includes provisions on the next steps both parties must take in case of a miscarriage, stillbirth, or death of the child. It is often left to the surrogate mother whether she wants to make another attempt in pregnancy or leave the agreement.

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Key Terms Related to a Surrogacy Contract

Surrogacy is a lengthy process, and the contract includes multiple extensions related to the terms and conditions decided by both parties.

• Surrogate or Carrier Mother: A woman carrying the child for the intended parents who cannot have one of their own.
• Gestational Surrogacy (GS): A pregnancy type in which the surrogate mother is not related to the baby.
• Traditional Surrogacy: A pregnancy type in which the surrogate mother is related to the baby.
• Intended Parent (IP): Individuals who become the legal parents of the child born through surrogacy.
• Intended Mother (IM): A mother who will become the legal parent of the child born through surrogacy.
• Intended Father (IF): A father who will become the legal parent of the child born through surrogacy.
• Egg Donor: A woman who donates her eggs for assisted reproduction through IVF.

Conclusion

A surrogacy contract is an important legal document that helps outline the terms and conditions for the intended parents and the surrogate mother ahead of childbirth. The extensive document is of utmost importance for both parties, so it is advisable to seek legal help in drafting it. If you want to draft or review your surrogacy contract, contact Contracts Counsel now. You can state your requirements in a project and post it on the official website to get professional help.