Are you wondering how surrogacy contracts work? Are you confused by all the legal terminology and different state laws? Don’t get overwhelmed! It can all seem very intimidating at first, but you just need someone to guide you through the surrogacy legal process.
In this post, we’ll answer all your questions and go over everything you need to know about surrogacy contracts and how they work.
What Is A Surrogacy Contract?
Also known as a gestational carrier agreement (GCA) or assisted reproductive agreement, a surrogacy contract is a legally binding agreement between the various parties in gestational surrogacy. This includes both the intended parents and the surrogate mother (sometimes referred to as the surrogate carrier), although in some states the surrogate’s spouse or partner also has to sign the contract.
Essentially, it’s a legally binding agreement that determines key aspects of the surrogacy process and establishes contingency plans in case of complications. It also specifies the rights, responsibilities, and obligations of both intended parents and surrogates.
In most US states, surrogacy contracts are not only allowed but are actually required. This is especially true in surrogacy-friendly states like California, Oregon, Texas, North Carolina, and Florida.
Are Surrogacy Contracts Enforceable?
This depends on the state, but if the contract is drafted by knowledgeable surrogacy attorneys and is legally sound, then yes, it’s 100% enforceable. However, the surrogacy contract must be completed, signed, notarized, and executed before any medical procedures take place, including fertility treatments or embryo transfers.
In some surrogacy-friendly states, the expectations of a surrogacy contract are codified explicitly in state law. For instance, in California, Assembly Bill No. 1217 specifically outlines what needs to be in a valid and enforceable surrogacy contract. In other states, the requirements might not be as clear, creating more of a legal “grey area”.
As a result, all these different state surrogacy laws and case precedents can become totally overwhelming. If you’re a regular person, then it can all sound like gibberish to you! That’s why it’s so important to have the contract drafted by experienced surrogacy attorneys who represent you and your interests, either as a hopeful surrogate or an intended parent. These surrogacy attorneys can also be called reproductive lawyers or family lawyers.
Plus, working with a reputable surrogacy agency is tremendously helpful since they’ll coordinate these logistics with the lawyers, further allowing you to focus on what’s most important to you. If you’re a surrogate, that’s having a healthy pregnancy and successful birth. If you’re an intended parent, that’s preparing your house and family for the new baby.
Do You Really Need A Surrogacy Contract?
Yes, absolutely! They’re a crucial part of the surrogacy process and it’s always better to have a valid and enforceable contract. Let’s take a moment to look over the primary reasons why you need a surrogacy contract:
- It protects the surrogate because their rights and responsibilities are explicitly covered in the contract.
- It also protects the intended parents by establishing their rights to establish parentage and take part in medical decisions.
- No two surrogacy journeys are the same, so it’s drafted to cover your particular situation.
- Each party has separate legal representation that contribute to the contract, so it protects everyone from potential conflicts of interest.
- A well-drafted surrogacy contract covers all the what-if scenarios, effectively acting as a roadmap to the whole surrogacy journey.
- It decreases the chances of further conflict by preemptively dealing with and solving any potential sources of confusion.
Never underestimate the importance of a surrogacy contract. It’ll make the whole process that much easier to navigate so that everyone can focus on the most important thing: a healthy baby being born and a brand-new family being built. At the end of the day, that’s why we’re all here!
What Does The Surrogacy Contract Need To Include?
The precise requirements for surrogacy contracts will depend on the state, but most of them contain the following pieces of information and contingencies:
- Basic information, including the legal names of all parties and the date of the agreement.
- Choice of venue and governing law to determine which state law applies, although you can always work with surrogacy agencies in other states.
- Assumption of risk to ensure that all parties understand the inherent risks.
- Release of liability to legally protect all parties.
- Breach of the agreement to establish the protocol if someone violates the contract as well as specifying what actually constitutes a breach of contract.
- Right to separate legal counsel because most states require separate legal representation for each party.
- Counseling will establish how medical, psychological, and/or group counseling will be made available to the parties.
- Conception plan that specifies how the surrogate will get pregnant, including fertility treatments and/or embryo transfer.
- Medical instructions that explain to the surrogate what she needs to do to maintain a healthy pregnancy and successful birth.
- Birth plan to specify how and where the surrogate will give birth.
- Surrogate compensation to establish the surrogate’s base salary as well as covered expenses and potential “bonuses.”
- Surrogate responsibilities and expectations, including avoidable behavior that might disqualify the surrogate.
- Rights and responsibilities for intended parents, including the expectations of their involvement in medical decisions.
- Establishing parentage and custody, usually via a pre-birth order. This will also protect the intended parents in the unlikely scenario of the surrogate trying to keep the baby.
- Marital status of all parties at the time of the agreement as well as what happens if any of the parties divorce or get married.
- Health coverage, including a review of the surrogate’s health insurance policy and the potential inclusion of a special surrogacy insurance policy.
- Selective reduction in case the surrogate gets pregnant with twins or triplets. This is important since in vitro fertilization (IVF) increases your chances of having twins.
- Pregnancy termination in case one party wants to terminate.
- Miscarriage or death of the fetus as well as a contingency plan if all parties want to attempt another pregnancy.
- Confidentiality and contact will explain what information can be shared with whom and determine levels of contact between the parties before and after the pregnancy.
As you can see, that’s a ton of important and complex information! Plus, we haven’t even considered unusual contingencies or circumstances that might be highly specific to your particular situation.
Each surrogacy journey is different, so each contract must properly reflect that. You want everything covered to make sure you and your interests are always protected.
Should I Use A Surrogacy Contract Template?
No, definitely not! Although you’ll find plenty of generic surrogacy contracts online, you need to avoid these at all costs. As a matter of fact, choosing independent surrogacy instead of going through an agency will present all kinds of problems, challenges, and liabilities that you could otherwise avoid.
This document is highly complex, with lots of ins and outs that require legal expertise to properly navigate. The surrogacy contract templates online are just too generic to cover all your bases – they won’t cover all the contingencies that you might encounter.
What’s The Surrogacy Contract Process At Surrogacy By Faith?
If you want to have a positive and meaningful surrogacy experience, then you should take the time to find the best surrogacy agency for you. Surrogacy By Faith is a California-based agency that’s experienced and knowledgeable in every part of the process, including surrogacy contracts.
Our contract-drafting process takes much less time than other agencies. The industry standard is 1 to 2 months whereas we usually have it done in 1 to 2 weeks! This is because we start with a standard template that we then customize for each intended parent/surrogate match to ensure that everyone’s needs are addressed.
We send the first draft to the intended parents’ attorney, they make any necessary changes, specify some basic “dos and don’ts”, and then we send that draft to the surrogate’s attorney. There are some standard details that are covered right away, including the surrogate’s job/income, disability insurance, and lost wages. According to our surrogacy contracts, even the surrogate’s husband is eligible for up to 10 days of lost wages!
From this point on, the process is usually swift. It’s perfectly normal for a surrogacy contract to go through a few drafts back and forth, but we’ll handle all the logistics and coordinate all the communication between the lawyers.
Surrogacy By Faith is also unique compared to other agencies in that all parties agree to not terminate the pregnancy. We’re guided by our faith and values and we take our mission very seriously – we believe each baby is a gift. As a result, we work hard to match surrogates with intended parents who will cherish each and every child.