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  • Writer's pictureRalph M. Tsong

Tricky provisions: three surrogacy contract sections where the parties often don’t meet eye-to-eye


surrogacy contract sections

When embarking on the journey of surrogacy, the drafting of the contract between surrogate and intended parents is crucial. In our experience, there are three contract sections we more commonly see disagreement between intended parents and surrogates. In this blog, we will explore these three terms and recommend how the parties deal with different opinions.



COVID Vaccination Status


While the most dangerous days of COVID-19 have hopefully passed us, COVID may be fresh on some parties’ minds and intended parents and the surrogate may have strongly differing viewpoints on the need for vaccination or boosters. Ideally, the parties discuss and already have an agreement on the surrogate’s decision to vaccinate or not vaccinate prior to the legal stage. If the parties reach legal and find their viewpoints differ, it is best to keep in mind that the parties are unlikely to change their viewpoint at the contract stage. Open communication is key. Intended parents and surrogates can start by sharing reasons for individual positions on the COVID vaccine.


If the intended parents strongly request vaccination or booster, while the surrogate opposes it altogether, this section becomes a sensitive negotiation point that could result in an impasse. A compromise may be possible through alternative measures for preventing COVID. If a surrogate has received a vaccination in the past but opposes a booster shot, the intended parents may wish to contact their physician to see if a booster shot would be recommended or not.



Travel Restrictions


Travel restrictions are typically part of a surrogacy contract to make the surrogate aware that travel during different stages of pregnancy may have be unsafe, and travel in later stages of pregnancy seems to keep the surrogate close to the delivery hospital, prevent premature birth, and reduce the risk of an out-of-state birth where the surrogate's parentage judgment may not be recognized by that state. Intended parents may react strongly when these provisions are revised by the surrogate. However, surrogates may have valid reasons for travel that should be considered.


To resolve disputes about travel restrictions, intended parents should ask why the surrogate would like out-of-state travel or different dates for travel limitations. These reasons could be work or family-related which may allay the intended parents’ fears, and allow for more specific carve-outs. Both parties can build a cooperative and empathetic relationship with communication. Some travel restrictions, such as those to foreign countries during the pregnancy should not be modified as having a parentage judgment recognized in a foreign country will be much more complicated and healthcare access may be much more expensive.



Abortion/Termination of Pregnancy


Discussions on abortion, fetal reduction, or termination of pregnancy are a very sensitive topic. The parties’ views on the subject need to be discussed beforehand and the intended parents' attorney should be informed ahead of the drafting what the parties have agreed to. While these events are rare in most surrogacy journeys, having a mutual agreement ahead of time is vital. Intended parents and surrogates should approach the topic with empathy and recognize the other parties’ viewpoints are unlikely going to change at contract stage. If the attorney is not informed of the parties’ agreement and the wrong terms are sent to surrogate’s attorney, the parties may find themselves in a much more contentious position.


Now, after the U.S. Supreme Court has allowed states to restrict abortion access, the parties need to be mindful of what the legal consequences are if this provision is inconsistent with state law. Even if the parties agree on termination provisions, the contract has to be drafted consistent with the laws of the surrogate’s state. If the surrogate is a “no term” surrogate, the parties should discuss what the termination provision says when the health of the surrogate or the developing child is at risk. A comprehensive approach not only acknowledges the the parties’ views on abortion but also acknowledges potential legal consequences. The parties should approach this section by acknowledging and respecting the other parties’ viewpoints ahead of time.


Conclusion:


Surrogacy contracts serve as the foundation for a successful and harmonious journey. Every surrogacy contract must be reviewed with the attorneys who should point out potential areas of disagreement, such as COVID vaccination status, travel restrictions, and abortion/termination of pregnancy. Your surrogacy attorney should promote the contract negotiation with an emphasis towards empathy and understanding. This paves the way for possible compromise smoothing over differences in key points.


If you need drafting or review of your surrogacy agreement, Tsong Law Group is ready to assist you. We have experience in complex negotiations and resolving difficult contract issues. Contact us today.

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