What Is a Surrogacy Agreement?
A surrogacy agreement is a contract between a surrogate and the intended parents. It typically lays out the responsibilities and guidelines that both parties are required to follow, as well as provide more detailed expectations for how the pregnancy will be handled. These agreements may vary in length depending on the state in which it is signed, as well as the preferences of both parties. Most contracts will spell out exactly what is expected of a surrogate mother, such as medical procedures, diets, and other protocols for her to follow .
Perhaps most importantly, a surrogacy agreement will establish legal rights between the surrogate and intended parents to the child before the surrogate gives birth, as well as outline the rights and responsibilities the surrogate has after the birth.
In most cases, surrogacy agreements are established right away, prior to or right at the beginning of the medical procedures. Contracts often lay out the following requirements: Of course, each contract may be different, but those are allowed to contain a fairly wide range of surrogacy-relevant factors. The main purpose is to establish rights and responsibilities for each party so that they have clearly defined boundaries and the surrogacy process can proceed as smoothly as possible.
The Framework of a Surrogacy Agreement Template
The surrogacy agreement template is one of the most important aspects of a surrgoacy agreement. It serves to protect both the surrogates, the gestational parents and their families. It is also important that the surrogate and the gestational parents understand the elements of the surrogacy agreement template that should be adhered to in order for the agreement to be valid as a legal contract and to protect all the parties from any emotional, legal, or medical issues that may arise during the process. The following are some key elements of a surrogacy agreement template: Roles and Responsibilities. The surrogacy agreement template should outline the roles and responsibilities of both the gestational parents and the surrogate. This should generally include a fair agreement on how the surrogate can be treated by medical and psychological doctors, who is in charge of making medical decisions, outlining the surrogate’s compensation, health insurance, and other financial matters, and determining what happens should the surrogate become unable to carry the pregnancy to term. Medical and Psychological Evaluations. A surrogate will have to undergo medical and psychological testing before, during, and after the pregnancy. The surrogacy agreement template should make clear to her the type of testing required, any dietary restrictions, the types of medications she can and cannot take, and how she is to treat the fetus during the pregnancy. Pregnancy Terms. The surrogacy agreement will need to outline the birth plan for the surrogate, what she can and cannot do during the pregnancy, how her prenatal care will be handled, what a surrogate can do if they are reluctant to hand the baby over at the time of the birht, if they intend on breastfeeding, and the number of days she can spend with the child. Legal Rights. The surrogacy agreement template should make it clear to the surrogate what her legal rights are, how they will be handled should they attempt to create a bond with the baby, and what their options are if something goes wrong with the pregnancy.
Considerations for a Surrogacy Agreement
The legalities involved in surrogacy are complicated. It is not a good idea to enter into a surrogacy contract without having an attorney review it. Every state or, for international surrogacy, country has its own regulations on surrogacy. Work with an attorney who has experience with surrogacy agreements and is familiar with the laws in your state or country of origin as well as the state or country with which you will be entering into a surrogacy contract.
At a minimum, some of the legal matters that must be addressed include:
Your attorney will make sure that you understand what your obligations and rights are in the surrogacy contractual agreement.
Common Provisions in a Surrogacy Agreement
Surrogacy Agreements often include provisions relating to compensation for carrying the child. It is not unusual for a surrogacy agreement to allow the surrogate to receive financial compensation for lost wages, reimbursement for certain medical expenses, and reasonable incidental expenses related to the pregnancy or birth. Compensation may be calculated based on FICA on base salary, but both parties may agree to exclude unearned income from the compensation calculations. Not only do these clauses create predictability up front for both parties, but they also help to avoid disputes about compensation later on. The Agreement will be plainly understood as to what the compensation is, and the surrogate will not have to guess if she gets paid for her time off for vacation or other non-work events.
One of the most important clauses in any surrogacy agreement is the clause outlining parental rights. Terms and conditions to establish legal parentage usually include obtaining a court order for name change and the amendment of birth records. Without these provisions , the intended parents may not be given authority to make medical decisions for the child in the event of a medical emergency. The surrogate must be comfortable with signing away parental rights to the intended parents. The language in these clauses should also expressly prevent the surrogate from attempting to assert parental rights (which could involve filing for child support or attempting to remove the child from the jurisdiction). Most of the time, surrogate agreements include language stating that both the surrogate and the intended parents expressly waive any such rights that they would normally have under existing laws.
Another significant provision in many surrogacy agreements outlines the procedure to be used in case of a dispute between the parties. This may include involving a third party to mediate or arbitrate the dispute. Both parties often agree to utilize arbitration as there are no appeals or extended court proceedings. It also helps to encourage the parties to resolve disputes amicably to avoid unnecessary protracted litigation.
How to Draft a Surrogacy Agreement: Tips and Tricks
When embarking on the surrogacy journey, it is imperative to clearly define all expectations, obligations and future plans by creating a comprehensive surrogacy agreement. In order to ensure that the surrogacy agreement addresses all applicable laws and is enforceable, the parents and the surrogate should work with their attorneys during the drafting process.
The intent of the agreement should be determined before drafting. Typically, surrogates agree to give up their parental rights to the child carrying them. Still, the surrogate should have an agreement that guarantees her access to the child’s records, health care and information her state grants surrogate parents. This ensures she has all available information regarding the child in case a case law changes and custody needs to be established.
Medical protocols should be discussed between the parents and surrogate prior to drafting. It is important to outline what medications and procedures will be transported to the surrogate, what medications and procedures are provided by the parents and what insurance will cover the medical costs. If the surrogate needs a c-section, the cost may be covered by the parents’ insurance. If so, the surrogate needs to be aware that she will be responsible for all medical fees that her health insurance does not cover or may later deny.
The agreement should include the financial obligations of the parents and surrogate, including compensation, fees, expenses, lost wages and other reimbursements. A written breakdown of all fees allows everyone involved to know what money will be going where, as well as safeguards to protect both surrogate parents and surrogates from future financial misunderstandings.
It is important for the surrogate to have both medical and life insurance. If the surrogate is covered under her spouse’s benefits, parents may be required to pay the premium. Additionally, if a surrogate loses her job due to her pregnancy, it is appropriate for the parents to cover any lost wages.
An effective surrogacy agreement should address the surrogate’s right to health care and other personal matters. This includes emergency medical treatment and pain medications, confirming that the parents will have no objection to the type of anesthetic, the use of narcotic painkillers and whether blood products can be administered if necessary. The surrogacy contract should also include a provision addressing whether the surrogate must leave work immediately upon the physician declaring the pregnancy viable and continuing through the end of the pregnancy. In some cases, surrogates can continue to work until the baby arrives, while other contracts require the surrogate to take all medical leave available. Additionally, the contract should also include a provision stating that the surrogate must cease smoking, drinking and using drugs upon the successful transfer of embryos.
All medical information exchanged during the surrogacy process should be confidential; however, someone should be designated to review the surrogate’s medical records and provide copies to the parents, if necessary. It is important to allow time after the surrogate’s child is born for the surrogate and her attorney to review the child’s medical records and to protect the surrogate’s attorney-client privilege.
It is a good practice to have a legal professional review the drafted surrogacy agreement to ensure that all provisions comply with both state and federal laws. The agreement should define the surrogate’s role and how it differs from that of the parents.
Sources for Surrogacy Agreement Templates
Surrogacy agreement templates can be found on a variety of legal websites, surrogacy agencies, and law firms specializing in family law. It is always a good idea to check the websites of reputable surrogacy agencies, as they often publish various contracts and agreements for potential clients to review. For example, agencies such as ConceiveAbilities and Growing Generations have comprehensive forms for both intended parents and surrogates. These are usually free to download, and can be an excellent introduction to the process of surrogacy. Adding a local touch to this search, Surrogacy in Georgia provides a free surrogacy contract template available through their website. Again, it is just a sample , and should not be used as a substitute for a surrogacy lawyer or a fully-customized surrogacy agreement, but it does provide intended parents and surrogates an idea of what is to be expected and provides the foundation for any future negotiations.
Family law firms who specialize in surrogacy – either for intended parents or surrogates – will often have a section of their website dedicated to all different surrogacy forms, agreements, and contracts. Since some lawyers offer their services on an a la carte basis, surrogacy agreements may be available for purchase and download directly from their websites. This is particularly true for smaller law firms that don’t mind a little additional revenue stream from the sale of generic contracts and agreements.