Surrogacy can be an incredibly fulfilling experience, however, clear communication and expectations are crucial to protecting everyone’s rights and minimizing misunderstandings. To ensure this, both parties (surrogates and intended parents) must agree to and sign a surrogacy contract before any medical procedures occur.
In this guide, we’ll address the following:
What Is a Surrogacy Contract?
A surrogacy contract, or a surrogacy agreement, is a legal document between the intended parents and the surrogate mother that sets expectations and responsibilities for the rest of the surrogacy journey. Two attorneys must draft the contract, each representing a separate party, to ensure everyone’s rights and surrogacy goals are properly addressed.
The surrogacy contract guides the entire journey, clearly outlining each party’s rights, roles and responsibilities before, during and after the pregnancy.
The most important objective of a surrogacy contract is to protect all parties involved equally and ensure a successful surrogate pregnancy that discloses all contract terms and confirms that the contract follows specific surrogacy state laws. Both parties should agree on all necessary financial and medical terms within the agreement. The contract also details the process for ensuring the child gets the correct parentage. A successful surrogacy relies on a thorough, comprehensive legal foundation.
What’s Included in a Surrogacy Contract?
Every surrogacy will look different based on the needs and preferences of the surrogate and the intended parents. Therefore, their surrogacy contract will reflect those personal circumstances. The contract-drafting process can begin once a surrogate is successfully matched with the intended parents. The parties should allow several weeks for the agreement to be drafted, negotiated and reviewed by all involved and their respective attorneys.
This is not an exhaustive list, but in general, a well-drafted surrogacy contract includes:
Establishing Legal Framework
Each surrogacy contract should outline the current laws and how they apply in that particular state. This includes the legal rights and responsibilities of the intended parents and surrogate through each step of the process.
The contract should also specify which state’s laws govern the arrangement, where any court action must occur and alternative dispute resolution methods required before legal action. While these sections ensure understanding if conflicts arise, the primary goal is a legal document protecting all parties and facilitating a smooth surrogacy journey.
Intended parents and surrogates should mutually agree on critical medical decisions in the surrogacy process. This includes agreeing on the number of embryos to transfer, positions on abortion and selective reduction and the number of fetuses to carry.
The contract also needs to address conception details, such as whose genetic materials are used, if embryos are fresh or frozen, the number and location of transfer attempts and total attempts within the contract duration. It’s also important to address all parties’ medical and mental health counseling, including whether group counseling will be available throughout the arrangement.
The base compensation of a surrogate must have legal negotiation and contract. Also, the surrogacy contract should address the surrogate’s pregnancy-related costs that the intended parents must pay.
Before drafting the contract, it is important to thoroughly review the surrogate’s health insurance policy to ensure no exclusions for surrogacy. The contract may incorporate relevant insurance provisions and should require intended parents to cover any deductibles, copays or uncovered amounts. Additionally, the intended parents should obtain health insurance for the child and be responsible for all their medical expenses.
Both parties must understand the legal processes for establishing parentage that need to take place before or after birth. It should clearly outline how the parties will resolve parentage. This involves establishing the intended parents as the legal parents and relieving the surrogate and spouse of all rights/responsibilities for the child.
Intended parents should have immediate custody of the child when they’re born. The contract should also address relationship status changes, such as divorce or separation.
Surrogacy is a complicated medical process that will come with some risks. The surrogacy agreement should ensure both parties understand these and layout procedures should any unforeseen complications arise. This includes rare outcomes like the need for selective reduction or termination if the surrogate’s life is endangered. Or, while unlikely, the scenario where the child does not have the intended genetic relationship due to an embryo mix-up or other error.
How Are Surrogacy Contracts Negotiated and Drafted?
A surrogacy contract is a collaborative effort requiring input from all parties and their attorneys. This ensures a fair, legally sound agreement protecting everyone’s rights and goals. The intended parents and surrogate should each have their attorneys negotiate the contract. The attorneys serve as allies, representing their client’s interests and ensuring a fair and legally sound final agreement.
Typically, the intended parents’ lawyer drafts an initial contract, which the surrogate’s independent lawyer then reviews. The surrogate’s attorney proposes any necessary additions or changes to represent her interests. The two attorneys negotiate mutually acceptable terms through an iterative process.
Finalizing the agreement requires careful consideration from the surrogate and intended parents. All must be comfortable with the terms before signing this foundational document. Only once satisfied with the protections and provisions outlined can the parties proceed with medical procedures.
What to Beware of With Surrogacy Contracts
When pursuing surrogacy, it’s best to err on the side of caution. Sometimes, intended parents look to avoid the costs of hiring a surrogacy attorney. They choose to create an independent contractor through a sample surrogacy contract found online. However, we strongly advise against this path. While professional legal help has costs, it provides critical insight you likely lack. Attempting to navigate surrogacy contracts yourself risks overlooking crucial provisions or legal nuances.
Surrogacy contracts require expertise to protect all parties adequately. The importance of a surrogacy contract goes beyond just the adherence to local surrogacy laws. Trying to develop an agreement without expert legal guidance means the intended parents or surrogate will not know how to protect themselves.
Attorney guidance is essential to ensure adherence to local laws and determine rights protections for intended parents and surrogates. General lawyers may lack specialized knowledge of surrogacy regulations and procedures. Vet any potential attorney to ensure their practice focuses specifically on surrogacy contracts.
When reviewing a surrogacy contract, ensure it does not seem one-sided and addresses all possible scenarios. A thorough agreement will cover medical consent, legal parentage, potential disputes and other intricacies. A fair, comprehensive contract indicates your attorney represented your interests equally alongside the other party’s.
Surrogacy Contract Checklist
Let’s walk through a standard surrogacy contract checklist to know what to look for in your agreement. As you review your surrogacy agreement, make sure it covers these commonly agreed-upon terms:
- Date of agreement
- Full names of all parties – intended parents and gestational carrier
- Confirmation all parties meet the minimum age per state law
- Carrier agreement to required medical and psychological evaluations
- Details on carrier’s health insurance or plan to cover medical costs
- Consent to fertility procedures and embryo transfer
- Maximum number of pregnancy attempts
- Carrier agrees to abstain from intercourse during attempts
- Agreement on pregnancy termination — only if the carrier’s life is at risk or otherwise mutually agreed
- Carrier’s commitment to refrain from smoking, drugs and alcohol
- Carrier agreement to regular prenatal care, with or without intended parents
- Carrier consent to any requested medical testing
- Mutual decisions on diet and activity restrictions during pregnancy
- Intended parent attendance at birth
- Carrier and spouse relinquish custody rights to the child
- Carrier consent to terminate parental rights after birth
- A statement that intended parents raising the child is in the child’s best interest
- Immediate custody transfer to intended parents after birth
- Compensation terms and details
- Compensation if pregnancy does not reach term
- Confidentiality agreement
- Other pre/post-birth arrangements and parentage issues
- Liability disclaimers for emergencies
- Governing state law
- Entire agreement statement
- Severability provision
- Signatures of all parties
How Do Surrogacy Laws Vary by Location?
Surrogacy laws vary widely by state. Some states, like Arizona, ban surrogacy contracts entirely. The surrogate is considered the legal mother entitled to custody, with her husband presumed to be the father if she is married.
Other states like California have created comprehensive laws regulating gestational surrogacy and making the process easier. California permits both traditional and gestational surrogacy, though traditional surrogacy is less regulated. For gestational surrogacy, the law outlines requirements for surrogacy contracts to establish the intended parents as the legal parents from birth.
States like Nevada take a middle ground, allowing gestational surrogacy but restricting payment to only living and medical expenses related to the birth. Oregon has no statute prohibiting surrogacy but also lacks comprehensive regulations.
Some states, like Washington D.C., prohibit all surrogacy contracts, declaring them unenforceable. Violators can even face fines and jail time. Other conditions may void surrogacy contracts but not impose penalties.
It’s crucial for those pursuing surrogacy to research the laws in their state thoroughly. Requirements around establishing parentage, payment and contract enforceability can vary greatly.
Working with an experienced surrogacy agency can help navigate any obstacles, especially in states with restrictions. Agencies familiar with surrogacy laws are equipped to guide intended parents and surrogates through the process.
International surrogacy laws vary significantly across countries. Many nations severely restrict or completely prohibit surrogacy. For example, surrogacy is illegal in France, Italy and Spain.
Other countries like Kenya and Malaysia have no formal laws, making commercial surrogacy technically permissible but lacking regulations to protect all parties. A third group allows surrogacy only under certain conditions, such as unpaid surrogates and a friend/family member.
The United States is widely considered the safest and most surrogacy-friendly option for international intended parents. Though state laws differ, commercial surrogacy is permitted and well-regulated in many states, providing legal protections for surrogates and intended parents that may not exist elsewhere.
Those pursuing international surrogacy should thoroughly research their home and destination country’s laws.
Partner with Joy of Life for a Worry-Free Surrogacy Process
When you work with Joy of Life®, we will protect your legal interests and appropriately handle all legalities. Our team is ready to assist you every step of the way, ensuring a finalized surrogacy contract with which you are comfortable.
Are you interested in starting the surrogacy process? Apply today to become a surrogate with Joy of Life® Surrogacy.
*This page was written or reviewed by Joy Millan, Founder and CEO of Joy of Life Surrogacy. Learn more about Joy and the team!