The process of gaining legal clearance is required before intended parents and their surrogate can actually start the medical process of surrogacy. Legal clearance occurs when a surrogacy agreement is signed by all parties.
Surrogacy agreements are an important part of the journey, as they memorialize the intentions of the parties and guide the parties’ actions for the next year or so that a surrogacy journey takes. It is a collaborative effort involving the intended parents, the surrogate, and their respective attorneys. Generally, the intended parents’ attorney initially drafts the contract which is then reviewed by the surrogate (and spouse or partner, if applicable) and her attorney to also ensure that the interests of the surrogate are protected. Thereafter, negotiations will continue between the parties. In our previous articles, we have discussed the legal requirements of surrogacy agreements in states where Tsong Law Group are licensed, namely California, Washington, Illinois, Arizona, and New York.
To readers who hope to understand what is in a surrogacy agreement, in this blog article, we will outline the Fundamental Topics, Finances, and Risk and Liabilities.
Basic Framework
Here are some typical provisions that should be included in every surrogacy agreement:
An introduction which contains the identity of the parties, including both intended parents and the surrogate;
A purpose and intent section which, in California, also identifies source of gametes, as well stating who will be the parents, who relinquishes their parental rights, and that everyone has provided true and accurate facts to one another;
A description of the medical procedure to occur, namely the embryo transfer, and the selection of the physicians for the process;
Prohibitions on the surrogate’s conduct which can include, abstinence, activity restrictions, drugs and alcohol; and
Rules of conduct will be requested to be followed by the surrogate such as following medical instructions, restrictions for travel and activities.
Paragraphs discussing risks, liabilities of the parties, breach and termination of the agreement.
While most surrogacy arrangements are followed successfully, every surrogacy agreement has to consider how to pay for medical expenses; what happens in the event of disagreement, breach; how to terminate the agreement; and waivers of liability. These are some sections we regularly see in surrogacy agreements:
Grounds and procedures for termination of pregnancy;
An assumption of risk and general release by the parties;
An explanation of the intended parents’ responsibility for medical costs and the results of a review of the surrogate's insurance policy, if any;
A discussion of a life insurance for the surrogate and the legal consequences of providing it;
What happens in divorce or separation, and death of intended parents;
The duration of the agreement and how and when the parties can terminate the agreement; and
A breach and/or dispute resolution section.
The Financial Component Last but not least, unless the surrogacy agreement is in an altruistic arrangement (one where the surrogate does not receive compensation), it is essential there is a section on the finances which should highlight the following:
Compensation. While the payment differ with each case, there is usually the following categories of compensation:
A monthly allowance to cover monthly expenses;
Pregnancy compensation (usually paid monthly) while the surrogate is pregnant;
A start of medication fee and embryo transfer fee; and
Fees for certain types of invasive procedures, loss of organs, or a cesarian section.
Travel expenses. If travel is required, what travel expenses will be paid for.
Lost Wages. This can include the length of lost wages and other childcare and housekeeping allowances while on bedrest.
Escrow or trust account. A discussion about who holds the funds during the journey, how long the escrow or trust account remains open after the journey, and what the balances should be at different times.
Conclusion
The surrogacy agreement is a crucial step in a surrogacy journey. Although this may not be the most exciting aspect and some will be tempted to try to use a contract they found from someone else or on the internet, it is critical to consult with legal counsel prior to making such a move. Most ART attorneys find it easier to use their own contract rather than work off of a contract the client found on the internet which they lack the permission to use.
The attorneys of Tsong Law Group have drafted and reviewed hundreds of surrogacy agreements, representing both intended parents and surrogates. We can represent you efficiently and explain the surrogacy agreement in an understandable way. Contact us now for more information.