When considering surrogacy, Intended Parents can choose to go through a surrogacy agency or an independent journey. Each option has unique advantages and considerations. While the decision should be based on specific needs, preferences, and circumstances, some prioritize the expertise and support provided by agencies. When selecting an agency, parties are typically presented with a surrogacy agency agreement near the start of the agency’s services.
A surrogacy agency agreement is a legally binding document that outlines the terms and conditions of the relationship between the parties, the intended parents and the agency. As the agreement will govern the parties’ relationship for the next year or more, a close reading of the agency agreement is essential to confirm that it is well-drafted, legally sound, and aligns with the interests and expectations of all parties involved.
In one of our weekly FAQ posts on our social media, we provided an overview of some things to consider when reviewing an agency agreement. In this article, we will delve deeper into its importance and offer a more comprehensive understanding of each item’s significance. Here are some key factors to keep in mind:
Agency Fee. Intended parents seek clear information on when and how much they need to pay the agency. The agreement must specify payment stages, amounts, and methods, which vary between agencies. This is important to be checked, as the provisions differ between agencies and the timing may be subject to negotiation. Surrogacy agencies also commonly charge fees at various stages of the process such as match meeting, match confirmation, or upfront before accessing the surrogate database. It's important to also see what services are provided when an agency fee is provided, and what will not be covered by the agency fee. Some agencies will charge for surrogate screenings and background check, others include it in the agency fee.
Rematch Fee. This secion in the surrogacy agency agreement usually outlines the additional costs or fees that may be incurred when intended parents and the surrogate seek a new match due to the termination of their initial match. What is important to pay attention to are situations where no rematch fee is charged. No rematch fee should typically be charged for cases where the surrogate withdraws prior to legal or does not pass the clinic’s screening. Some agencies do not charge rematches where the surrogate did not receive legal clearance, or where the surrogate terminates the contract before an embryo transfer. Some may even not charge rematch fees if the surrogate does not become pregnant or does not deliver a baby. Most agencies will charge a rematch fee if the intended parents terminate the match without good cause. There can be a wide range of situations where a rematch might be likely which an attorney may be aware of and which inexperienced intended parents may not. The rematch fee may also differ in amount from a smaller fee to the size of the agency fee itself.
Duration of the Contract. The length of a surrogacy agency agreement can vary and is typically outlined in the terms. Some agencies charge fees for extending the contract or a new agency fee entirely, so it’scrucial to check the agreement details. Consider that a surrogate who is not prescreened may take months to pass screening, and that add in the length of legal contracts and the calendar of the clinic, the possibility of multiple transfers, a successful journey is likely to take significantly longer than one year. This doesn’t take into account the possibility of failed matches and rematches.
Services Provided. Surrogacy agency agreements include different services. While coordination is included which means providing referrals, checking in on the surrogate and addressing any differences between the parties, you also want to see what the agency will do after the contracts are signed. Intended parents may wish to have the case manager attend embryo transfers or the delivery, and if this is not included, the exact cost of the additional charge should be laid out.
Given the complexity and legal nature of agency agreements, these four points provide an overview and do not cover all the important deal points in an agency agreement. It is advisable to have a lawyer review your surrogacy agency agreement. While there are legal fees involved in reviewing a contract, they may be applicable to a future contract, and you will have peace of mind knowing and understanding the agency agreement.
The lawyers at Tsong Law Group have expertise in surrogacy laws and experience with reviewing surrogacy agency agreements, and can provide clients with the guidance and assurance needed. For more information, contact us now.