Checklist: Surrogacy Contract

Drafting a surrogacy contract is tricky business. Only experienced attorneys should attempt such a task. Your attorney needs your input, however, in drafting such an agreement. It should reflect your wishes.

Below is a checklist of items to help you think about what terms you want to include in your surrogacy agreement. Items in your contract should also reflect whether you are the surrogate or the couple using the services of a surrogate.

It is important to note that the couple and the surrogate mother need separate and independent counsel. This will ensure that their best interests are protected, and it will also help avoid a potential conflict of interest.

Surrogacy Basics

You might be considering a surrogacy arrangement for many reasons, such as:

  • Genetic testing indicates that you and/or your partner carry genetic conditions you do not want to pass on to a child
  • Either you or your partner (or both) cannot have children due to an issue with fertility
  • You or your partner have undergone fertility treatments that did not yield any positive results

You might not be struggling with infertility, and maybe you just want another person to carry a fetus to term. You could even use your own eggs. You can, of course, use donor eggs, as well.

There are many ways to approach surrogacy. Perhaps the most common is in vitro fertilization (IVF) or artificial insemination. It would then be necessary that you find a sperm donor.

In a traditional surrogacy arrangement, the surrogate is technically a legal parent of the child until the intended parents obtain a court order that says otherwise. These arrangements can be complex and are not the most common approach anymore. Instead, the person we'd see as the “birth mother" is actually a gestational carrier. Both the sperm and eggs for the process come from people other than the surrogate.

Whatever the case may be, many legal issues can arise from whatever form of assisted reproduction you choose. In any surrogacy journey, it's important to know about what legal issues you could encounter. Continue reading to learn terms that should be included in the surrogacy agreement.

Below is a checklist to be used for drafting your surrogacy contract.

____ Date of the agreement
____ Names of the parties, including both prospective parents and the surrogate. The prospective parents are also known as the “intended parents." These are the names you will put on the child's birth certificate. The surrogate is also known as “the gestational carrier," and the process of carrying a fetus for another person is known as “gestational surrogacy"
____ Statement that all parties are of the age required by their state
____ Agreement by the surrogate to submit to requested physical and psychological exams
____ Details of the surrogate's health insurance coverage, and their agreement to keep existing coverage in full force and effect; or alternatively, indicate how you all plan to cover medical costs
____ Agreement of the prospective parents (“legal parents") and surrogate to the assisted reproductive technology procedures involved and the placement of fertilized embryo(s) in the uterus of the surrogate. This part of the agreement may also specify which fertility clinic the parties will use
____ Agreement as to the maximum number of attempts to achieve a pregnancy
____ Agreement that the surrogate will not engage in intercourse during the attempts to achieve a pregnancy
____ Agreement that the surrogate will not terminate the pregnancy unless their own life is at risk or unless otherwise agreed upon in writing (for instance, if the fetus has significant problems and may not be viable)
____ Agreement by the surrogate to refrain from smoking, drinking, and using illicit drugs during the pregnancy
____ Agreement that the surrogate will obtain regular prenatal medical care, with/without the prospective parent(s) in attendance
____ Agreement that the surrogate will submit to any medical testing requested by the prospective parents or required by the medical professional
____ Agreement regarding the diet of the surrogate during the pregnancy
____ Agreement regarding any restrictions on the activities of the surrogate during the pregnancy
____ Agreement that the prospective parents will/will not be present for the birth of the child
____ Agreement that the surrogate and their spouse, if any, will have no claim to physical or legal custody of the child born as a result of the surrogacy
____ Agreement by the surrogate to the termination of their parental rights upon the birth of the child
____ Agreement that it is in the child's best interests that they be raised by the prospective parents
____ Agreement that custody of the child will be relinquished to the father and mother as soon as possible after birth
____ Agreement regarding the financial terms of the arrangement (including reimbursement, payment for uninsured pregnancy-related medical expenses, provisions on how this will be covered if insurance doesn't cover the surrogate, payment for psychological counseling, payment for maternity wear, payment for lodging and other living expenses if the surrogate relocates to be near the mother and father, payment of travel expenses, etc.)
____ Agreement as to compensation should the pregnancy not proceed to term
____ Confidentiality agreement
____ Any other requirements that the parties agree upon as to pre-birth and post-birth arrangements, as well as any other issues related to the child's birth and other issues related to parentage
____ Any disclaimers of liability in cases of emergent circumstances
____ Governing law (choose a state)
____ Statement that the contract constitutes the entire agreement
____ Severability clause
____ Signatures

With So Much at Stake, Get Legal Help With Your Surrogacy Matters

For couples that struggle with infertility or other issues related to pregnancy, surrogacy offers the hope of parenthood. However, as with most arrangements in society, especially ones with such far-reaching implications, it's important for everyone to understand their legal and contractual obligations before moving forward.

Because so much can be at stake with a surrogacy contract, it's imperative to speak with an experienced family law attorney before signing the dotted line. It's important to get the legal help you need under these circumstances.

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Can I Solve This on My Own or Do I Need an Attorney?

  • State laws vary in their treatment of surrogacies
  • Surrogacy law is constantly changing and can be complex
  • An attorney can draft an enforceable surrogacy contract and negotiate contract terms

Get tailored advice and ask a lawyer questions about your state laws. Many attorneys offer free consultations.

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