Surrogacy Agreements - Contract Terms

What goes into the Surrogacy or Gestational Carrier Contract? Once the prerequisites are met and a carrier or surrogate is successfully matched with the intended parent(s), then the parties can begin the process of contract drafting. The parties should be sure to allow plenty of time (at least 4 weeks) for the contract to be drafted, reviewed, discussed, and negotiated by all parties including with their respective attorneys. Surrogates and gestational carriers (along with their spouses or partners) must have separate legal representation from the intended parents in the contract drafting process. Also, the intended parents normally pay the attorney fees for the carrier (and her spouse or partner if applicable). The contract itself generally is very extensive and will address the following major topics (although this is not at all an exhaustive list):

• Governing Law, Choice of Venue, Dispute Resolution. A critical part of any contract is to indicate what state law will govern the arrangement and also, if any dispute arises, where any court action might take place. Many contracts also will contain alternative dispute resolution provisions such as whether the parties must try to mediate before bringing any court action
• Separate Legal Counsel. The contract must indicate that the parties have had separate qualified legal counsel and that they have reviewed and understand the contract and have had the opportunity to negotiate any of the terms of the agreement.
• Medical, Mental Health, and Group Counseling. Medical and mental health counseling for all parties, including group counseling, should be addressed in the contract with group counseling made available throughout the contractual arrangement.
• Conception. The parties should address how the conception will occur. This section may include whose gametes will be used, whether the embryos are fresh or frozen, whether the embryos have undergone PGD or PGS testing, how many embryos will be transferred per attempt, where the transfer(s) will occur, how many attempts the parties will make, and how long the parties will be under contract or try to make attempts.
• Medical Instructions. The surrogate or gestational carrier generally agrees to reasonable restrictions on her travel, nutrition, and activities, etc., to ensure a healthy and safe pregnancy. She also agrees to cooperate with her medical providers and ensure that the intended parents are recognized and treated as the legal parents.
• Resolution of Parental Rights. The contract very clearly should spell out how parentage will be addressed, including how the intended parents will be established as the legal parents, and how the gestational carrier and her spouse (if applicable) will be relieved of any and all possible rights and responsibilities regarding the child.
• Custody. The contract should ensure that the intended parents have immediate custody of the child upon birth whether there is a pre-birth order in place or the legal parentage process is expected to occur after the birth.
• Divorce or Separation or Marriage. The contract should address what would happen if any of the parties intend to divorce or separate or get married (and in some cases, may restrict them from doing so until after the child is born or may require the contract to be amended).
• Death or Disability of the Intended Parents. The contract should have a plan for what the gestational carrier will do if the intended parents die or become seriously disabled during the course of the agreement. This includes requiring the intended parents to have their estate planning documents in place that name guardians and trustees so as to not only cover who will take the child but also who will be responsible for ensuring the surrogacy agreement is carried out with all financial obligations properly met.
• Child’s Name and Birth Certificate. This section of a contract often deals with the hospital process, and how the parties will make sure that the intended parents are listed on the child’s birth certificate.
• Health Insurance. The gestational carrier’s full and complete health insurance policy must be reviewed prior to contract drafting to ensure that there are no exclusions for her serving as a surrogate. Also, sometimes certain insurance provisions will be incorporated into or addressed in the contract. The contract should require the intended parents to pay any insurance deductibles, co-pays, or uncovered amounts. The contract also should make the intended parents responsible for obtaining or ensuring that they have health insurance for the child and for covering any and all medical expenses for the child.
• Payment of Expenses. State laws vary on what amounts can be provided to surrogates and gestational carriers, and how the payments should be characterized. For example, in Virginia all amounts have to be characterized as reasonable medical and ancillary expenses associated with the pregnancy which can include monthly household living expenses. The agreement should spell out clearly the nature and types of payments, and the methods and timing of any such payments.
• Breach of Agreement. The contract should define what constitutes a material breach versus a non-material breach by any of the parties and spell out the remedies for the non-breaching party. The contract typically will include notice and cure provisions: meaning that one party has to give notice to the other party that there has been a breach and that there is a certain time period to “cure” (that is, fix) the breach if it can be fixed.
• Miscarriage, Consensual Abortion, Stillbirth, or Death of the Child. In the unfortunate event of a miscarriage or consensual abortion, the parties must address whether any attempts at another pregnancy will be attempted. This typically is left up to the surrogate. Also, if the child dies prematurely, at birth or shortly after birth, the parties should agree on what will be done with the remains. Custody of the remains usually is turned over directly to the intended parent(s) in order to make burial or funeral arrangements.
• Assumption of Risk and Release of Liability. The parties should be clear about what risks they are assuming in entering into a gestational carrier agreement.
• Assumption of Responsibility. The contract should very clearly spell out the intended parents’ responsibility for the child, even in the case of unexpected issues.
• Notification of Labor and Hospital Plan. The contract should detail the plan for notifying the intended parents of when the carrier goes into labor, as well as who will be present at the birth and other hospital plan matters.
• Elective Abortion, Selective Reduction, and Termination of Pregnancy. It is crucial for the parties to agree on when the surrogate or gestational carrier might be asked to abort, selectively reduce, or terminate a pregnancy, before contract drafting begins. The contract uniformly will allow for such termination if the surrogate or gestational carrier’s life is in danger. Also, while a contract may provide certain legal remedies in the event that the carrier aborts or refuses to abort contrary to the wishes of the intended parent(s), the parties also must understand that a pregnant woman has the constitutional right to abort, or not abort, a child in utero, even if that means she is breaching the contract.
• Genetic Testing and Failure of Intended Genetic Relationship. While unlikely, the contract should have a plan to address an embryo mix up or other situation where the child delivered by the carrier does not have the planned genetic relationship to the intended parents (e.g., if the fertility clinic makes an error, or the child ends up being the carrier’s genetic child).
• Gestational Carrier’s Residency. Since laws vary state to state, the contract should address where the carrier lives, especially if the child will be born there.
• Duties of the Spouse of the Gestational Carrier. If the gestational carrier is married, the contract should address her spouse and generally her spouse will be required to be a party to the contract.
• Confidentiality and Continued Contact. The parties should agree on the levels of confidentiality and continued contact, both during the pregnancy and afterwards. This can include issues such as blogging, posting on social media, and what the intended parents will ultimately disclose to the child and when.
• Other Provisions. There are numerous other provisions that generally are incorporated into the contract including, but not limited to, if the surrogate must be placed on life support, if the surrogate loses the pregnancy due to the fault of a third party, if there are changes in the existing law, and many more. Given the continued changes in assisted reproductive technologies and the law, including new medical procedures and governing standards, contract terms may need to be updated on a fairly frequent basis.