Understanding the Surrogacy Contracts

Surrogacy Contract & Legal Processes


Surrogacy is a wonderful, highly rewarding process for everyone involved.  Once the Intended Parents and the Surrogate have met with one another, they are usually eager to begin the embryo transfer and pregnancy. However, before proceeding to the medical procedures, there are many important legal factors you need to consider. 

Typically, there are three important legal processes to know when it comes to surrogacy laws: the surrogacy contract, the pre-birth parentage order, and adoption or post-birth legal procedures. Here is an outline of these and other legal issues regarding surrogacy. 

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Creating and negotiating the surrogacy contact

Before the embryo transfer, the Intended Parents and the Surrogate need to work with their respective lawyers to create and negotiate the surrogacy contract.

The surrogacy contract should be a group effort, with both parties and their lawyers contributing the terms to be included.

Usually, the hopeful parents and their lawyer will first draft the contract and send it to the Surrogate Mother and her lawyer for review. The Surrogate and her attorney will work together to ensure her interests and requests are well represented, make necessary adjustments, and send it back to the would-be parents’ lawyer.

The lawyers of both parties will continue to work on the contract until everybody is okay with the terms. The Intended Parents and Surrogate can then sign the contracts and proceed to medical procedures.

It is essential that Intended Parents and Surrogate Mother have their own lawyers who will negotiate the contract. Both lawyers will work hand-in-hand, representing the interests of their clients and making sure the final contract is balanced and fair to both parties. Without lawyers, the Surrogate and Intended Parents would have to negotiate the contract themselves, which may be stressful and ruin their relationship.

The surrogacy contract has to be completed and co-signed before commencing medical procedures. Both parties need to be protected during the medical process, and fertility clinics don’t usually go ahead with the medical procedures until the surrogacy contract is in place.

What to check for in the Surrogacy Contract

Generally, the surrogacy contract should include the following:

  • Finances, including the base compensation for the Surrogate and other compensation she may get for invasive procedures, carrying more than one baby, being placed on bed rest, etc.
  • The risks and liability linked to the pregnancy.
  • The Surrogate Mother’s health and her responsibilities to take good care of herself and the child she’s carrying during pregnancy.
  • An agreement on sensitive topics like pregnancy termination and selective reduction, in case it becomes necessary.
  • Who will be there with the Surrogate during prenatal appointments and delivery.

In essence, a surrogate contract outlines two important legal issues:

  • Finances: The lawyers of both parties will negotiate the surrogate’s compensation and other payments for things like maternity clothes. The surrogacy contract also needs to determine additional compensation in case of complications or situations like going on bed rest or carrying two or more babies.
  • Social Requirements: The contract also outlines the basic responsibilities of the Surrogate during the pregnancy – like quitting alcohol, tobacco, and other recreational drugs. Most surrogacy contracts cover certain social agreements between both parties, for instance, who will be around during important prenatal appointments and childbirth.

Other factors

There are several factors that can affect the course of a pregnancy and a surrogacy arrangement. It is important to partner with an experienced lawyer to help create a surrogacy contract covering all possible outcomes.

Every surrogacy contract will vary depending on surrogacy laws in different states and countries as well as each parties’ unique needs and situations.

There are lots of variables and “what ifs” in surrogacy that should be addressed in the contract. So, it is crucial to consider all possible outcomes and work with an experienced lawyer who understands what to check for in a contract.

If you are working with a surrogacy professional, they should be able to coordinate legal representation for you. But if you are searching for an independent lawyer to help draft your agreement, the American Academy of Assisted Reproductive Technology Attorneys (AAARTA) has a directory of experienced surrogacy lawyers on their website.

The Pre-Birth Order

The second step in the legal process is to officially declare the Intended Parents as the legal parents of the baby or establishing their guardianship. This process may look different based on state surrogacy laws. But most surrogacy-friendly states allow hopeful parents to file a pre-birth order before the baby is born.

Basically, the pre-birth order speeds up the post-birth process and enables the child to be discharged from the clinic to the would-be parents.

The criteria to file a pre-birth order differ from one state to the other. Generally, the Intended Parents will have to compile the paperwork listed below:

  • A doctor’s affidavit saying that the embryos were indeed transferred to the Surrogate mother.
  • Any social documents made solely for the surrogacy, including assessments of the Surrogate and the Intended Parents.
  • Paperwork signed by the Surrogate Mother’s family stating that they wish to hand over any legal rights over the baby once he/she is born.

Most lawyers start working on the pre-birth order around seven months into the surrogacy pregnancy.

If a pre-birth order is submitted, the only paperwork necessary to finalize the surrogacy after delivery is a document signed by the Surrogate mother and her spouse stating they are not the child’s legal parents and documentation from the would-be parents saying that they are willing to accept the custody of the baby.

Adoption & other post-birth legal processes

In certain cases, additional legal steps may have to be taken after the baby’s birth. This applies in any surrogacy arrangement in which one or both of the hopeful parents are not biologically linked to the child.

A second-parent adoption is needed when the genetic material of one parent was “mixed” with a donor’s eggs or sperm to produce the embryo. A male partner may adopt her wife’s biological baby. Depending on state surrogacy laws, unmarried homosexual couples may have to complete a second-parent adoption instead of a step-parent adoption.

If the hopeful parents completed an embryo adoption and did not share genetic ties with the baby, a full adoption would be needed.

When adoption is needed in surrogacy, the parents-to-be have to follow the adoption laws in their state. Your lawyer can help you navigate the legal adoption process depending on your state’s laws.

The dangers of independent contracts

Intended Parents and Surrogates may think it would be easier to just download a template of surrogacy contract from the internet. Although there are lots of websites that allow you to download sample surrogacy contracts for free, it is unwise to attempt to draft the surrogacy contract without the necessary legal representation and counsel.

Online surrogacy contracts are usually generic and short-sighted. They don’t consider each party’s unique needs and situations, and they definitely don’t cover all probable outcomes and variables that may impact the course of the surrogacy journey. This may result in serious legal consequences and an increased chance of misunderstanding and disputes between both parties. Without a legally-binding surrogacy contract, there is zero protection for the Intended Parents, the Surrogate, or the baby.

The objective throughout the surrogacy process should be to protect the child and his or her interests. Although the legal process may appear challenging, it is best to put in time and effort and work with a lawyer who can help draft a surrogacy contract.

A word from Physician’s Surrogacy

The legal surrogacy process differs based on many factors. Gestational surrogacy laws are different from those of traditional surrogacy. State regulations determine the right steps to take to legally complete a surrogacy arrangement, and the situation of each pregnancy can impact the legal process.

The best decision Surrogates and Intended Parents can make to legally protect themselves during the surrogacy process is to work with a reputed surrogacy expert and an experienced lawyer.

Would you like to know more about the surrogacy contract or how to commence the process? Contact Physician’s Surrogacy today to schedule a complimentary consultation with one of our experts.

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