Surrogacy Agreements - Matching and Prerequisites

There are numerous issues to be addressed in the successful matching of the intended parent(s) with a gestational carrier or surrogate (and her spouse or partner if applicable). These issues all should be addressed prior to any attempt at drafting the necessary legal contract between the parties. If these issues are not addressed in advance, then the contracting process can fall apart or not go very smoothly.

The following are items to address before contract drafting. Many of these recommendations come from the American Society of Reproductive Medicine’s (ASRM) most recent published guidelines and recommendations for using a gestational carrier:

• Background Forms Completed. It is important for the parties to really get to know each other and background forms are a conducive way of starting that process. Such forms ultimately also can assist the attorneys in the contract drafting process.
• Health Insurance for the Surrogate. If the surrogate does not have health insurance, this can be a huge impediment to the success of any arrangement. If she does have such coverage, then her full and complete health insurance plan or policy should be reviewed by a qualified professional prior to entering into any surrogacy agreement, to ensure that she will have no issues with maternity coverage. An insurance review also can identify other relevant issues, such as how a health savings account will be used, whether an insurance plan provides any special programs for pregnant members, whether medical care will or will not be covered for going out of network, and much more.
• Medical clearance. If the intended parents are providing the sperm and/or egg that will be used in forming the embryo, they should be medically screened prior to the embryo creation to minimize the risk of any diseases that could be transferred to the gestational carrier. The gestational carrier first should be cleared by her own ob-gyn to get pregnant again and then also should be screened for anything that could be passed on to the child in utero. If she is married or in another long-term relationship, then her spouse or partner also should be medically screened for anything that could be transmitted to the gestational carrier.
• Medical counseling. All parties should be counseled on the medical aspects of the arrangement, including the risks involved in the embryo transfer and the risks of pregnancy and loss of pregnancy.
• Mental health clearance and counseling. All parties should be screened by mental health professionals prior to entering into a gestational carrier arrangement. The surrogate or gestational carrier may be subject to slightly more intense screening for a variety of reasons. Further, the parties should participate in group counseling before any pregnancy to ensure open and effective communication throughout the arrangement. A qualified counselor also can help the parties work through many of the items that will ultimately go into the contract such as addressing abortion and selective reduction issues, level of communication and contact, and degree of confidentiality. Group counseling can be absolutely essential in ensuring a smooth arrangement between the parties. Recommendations of the counselor can even be incorporated into the legal contract.
• Background checks. All parties have the right to request background checks (including Child Protective Services, credit history, and criminal records checks) on the other parties.
• Home Visit. Intended parents may request a home visit with the surrogate, or the agency may arrange for a social worker to conduct a brief homestudy of the carrier. This is meant to allow the intended parents to get a sense of her lifestyle and of the environment in which she will be living while carrying their child.  If the parties request, the agency may also arrange a visit for the surrogate/carrier at the intended parents’ home.
• Agreement on Major Contract Terms. Before drafting the contract, the parties should make sure they agree on the major issues including, but not limited to, the following:
  • Religious, abortion, and selective reduction views. Usually individuals with a strongly held belief of pro-life or pro-choice outlook need to be partnered with someone of the same belief. For example, if a gestational carrier has strong pro-life beliefs and will not agree to abort a child for any reason, then she should not be matched with intended parents who would want a fetus aborted under certain circumstances.
  • All of the financial terms that will go into the agreement including legal fees.
  • Method of payments. This includes whether or not payments must be made through an escrow service and if so, which one.
  • The level of confidentiality both during the arrangement and after the contract is over.
  • Contact and Communication. The level of contact and communication between the parties, both during the pregnancy and after the child is born.
  • The restrictions that will be expected to be placed on the gestational carrier during the pregnancy. While it is standard for the surrogate to abstain from drugs, alcohol, and tobacco and to follow her ob-gyn’s instructions, there are many other factors that now are important such as not traveling to areas where the Zika virus is an issue or engaging in overly strenuous or dangerous activities (e.g., triathlons or sky diving) and much more.
• Estate Planning. The intended parent(s) should have in place, or be prepared to have in place as soon as the surrogate or gestational carrier is confirmed to be pregnant, estate planning documents. In these documents, which come into play upon the indended parents' death, they will nominate a guardian to care for the child, and a trustee to ensure that the parents' financial obligations under the contract are met.