You’ve found a surrogate, either independently or through an agency, that you believe would be perfect to carry your baby. Now you need a surrogacy agreement, a legally binding contract between you and the surrogate. This document must clearly express the plans, expectations, and responsibilities of both parties. Here are some key elements to consider before you draft your surrogacy agreement.
- Hire a Lawyer
You might think that skipping the lawyer will help you save money. This simply isn’t true, since a poorly worded contract can result in legal battles with a high price tag. Your assisted reproduction lawyer gives you a safety net that you’ll value more and more as you move through the surrogacy process. Your attorney helps you sidestep potential legal pitfalls, drafts a surrogacy contract that protects your family, and protects your rights so that your baby will be in your arms at the end of the surrogate’s pregnancy.
- Specify Required Exams
Make sure that your surrogacy agreement includes a physical and psychological exam for all parties. If you go through an agency, this is typically required by the agency anyway, but it never hurts to state it in the surrogacy contract. It’s even more important to include this wording if you are pursuing an arrangement with an independent surrogate. You want to be sure that she is in the best possible physical and mental health to minimize any risk to your baby.
- Discuss the Assisted Reproductive Technology and Its Use
When you draft the surrogacy agreement with the help of your lawyer and others on your team, be sure that you include specific wording about the assisted reproductive technology that you plan to use to achieve the pregnancy. Agree on the number of times that you will attempt a successful pregnancy and how long you will work with each other. Some parties agree to three attempts over an 18 month period.
- Agree on Behavioral or Dietary Restrictions
When you have found a surrogate whom you trust and whom you believe is a good fit, you probably feel that you can count on her to take care of herself and the baby during the pregnancy. However, it is always advisable to state your expectations in the surrogacy agreement. By signing the agreement, the surrogate agrees to, for example, avoid smoking, illegal drug use, drinking, and other behaviors that threaten the fetus.
In addition, the agreement should specify that the surrogate must attend regular prenatal checkups, submit to any medical tests that the physician deems necessary, and follow the diet and activity restrictions that you state clearly in the contract. For example, if you want your surrogate to avoid coffee and drink lots of milk during the pregnancy, you would need to talk to her about it, come to an arrangement, and make that arrangement clear in the contract.
- Identify the Custody and Rights
Next, you come to the most crucial part of the agreement, the section where your lawyer’s help is vital. This is the part of the contract where you state that the surrogate intends to have no legal or physical custody over that baby she is carrying. The surrogate should also agree to do whatever is necessary to ensure you have legal and physical custody of the child.
- Address the Financial Issue
Finally, the surrogacy agreement needs to deal with any monetary reimbursement for the surrogate’s expenses. Make this section as clear and concise as possible so that everyone knows exactly what to expect. In addition, include wording that specifies what reimbursement or compensation should be given if the surrogate miscarries at some point during the pregnancy. Consider factors such as extra reimbursement for bed rest, a C-section, child care during appointments, maternity clothes, and other details.
- Agree on Termination and Selective Reduction
For some, this is a very difficult topic to discuss. However, it is very important that you and your surrogate are in agreement on whether to terminate or reduce a pregnancy and under what conditions to abort or reduce a pregnancy.
No matter what your views are on terminating a pregnancy or reducing a pregnancy, all parties must share the same views before moving forward.
These seven elements are essential to consider for your surrogacy agreement. Once you have thought through each one, communicate your wishes to your lawyer and your surrogate so that you can come together and draft a contract that protects everyone. If you don’t have an assisted reproduction attorney on your side yet, start your search today!
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About Nicole K. White
As a mother via gestational surrogacy, Nicole is passionate about helping her clients experience the joy and fulfillment of starting or growing a family of their own through third party reproduction. Her knowledge and experience as an attorney and as an intended parent mean she knows firsthand what you will go through and what you will need – understanding, ongoing support, guidance and a smooth process.
