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10 Critical Surrogacy Contract Terms

November 25th, 2019
meg

As ConceiveAbilities’ Director of Legal Services & Client Advocacy for over five years, I coordinated the entire legal aspect of our client’s surrogacy journey. It was both my mission and pleasure to assure that clients of ConceiveAbilities had their legal interests and rights protected throughout the entire surrogacy process. In this time, as well as throughout my broader practice as a family law attorney, I spoke with many clients who were understandably nervous about the legalities of such an emotional process. I found that a general awareness of the below terms, which should be included in your contract, helps to demystify the legal contract by providing some context. It is my sincere hope that this primer list, which ConceiveAbilities has invited me to share, is helpful to you as you move toward to fulfilling your family building goals.

*Meg Ledebuhr, Esq. Attorney

A gestational surrogacy contract is an agreement between intended parent(s) and a gestational carrier and her partner/spouse, if any. These contracts detail the parties’ rights, obligations, intentions, and expectations in connection with their arrangement. The intended parent(s) and surrogate must negotiate and execute a gestational surrogacy contract prior to the commencement of any medical procedures that the surrogate will undergo in preparation for the transfer of embryos to her uterus. Before parties begin to negotiate contracts, it is highly recommended, and even required in some states, that the surrogate and intended parents undergo medical and mental health evaluations to determine their ability to serve in their respective capacities.

There are certain issues that must be covered in any surrogacy contract. Below are a few critical terms which must addressed in the contract:

(1) The Law of the State
All parties must agree to follow the specific procedural requirements in order to validate a contract, if required by state law, and all steps necessary to complete proper parentage paperwork. It is important to specifically detail these steps in the contract so all parties have an expectation of what will be required of them.

(2) Identify Medical Providers
The names of the IVF clinic, reproductive physician and the obstetrician must be agreed upon and stated in the document. Some states are specific about which party has input on the choice of physician(s).

(3) Medical Process and Number of Cycles to be Attempted
The contract should contain an overview of the medical process. Parties generally agree to work together for three (3) embryo transfers. The number of embryos to be transferred each cycle is also addressed.

(4) Parental Obligations
The Intended Parents agree to accept any resulting child(ren), notwithstanding congenital abnormalities, defects, or health problems. This parental obligation should consist of custody and a promise to support the child regardless of the personal or marital circumstances that exist between the Intended Parents at the time of birth. The surrogate agrees to surrender all parental rights, if any, and to surrender custody of the child to the intended parents at birth.

(5) Understanding of Risks Involved
The contract should contain a clause regarding an understanding by all parties of the medical and psychosocial risks involved.

(6) Abortion and Selective Reduction
This is one of the most crucial areas in matching surrogates and intended parents. It is imperative to do everything possible to make sure all parties are in total agreement on serious decisions like selective reduction and termination of a pregnancy. The gestational carrier always maintains the right to make decisions for herself regarding the pregnancy as a constitutional right emanating from Roe v. Wade.

(7) Payment of Prenatal and Birth Expenses
The contract will provide that the Intended Parents pay for all out-of-pocket expenses of the surrogate. Sometimes the contract provides that the Surrogate will be paid a monthly allowance, which she will use to cover co-pays, mileage, and other miscellaneous expenses.

(8) Compensation
It is important the payments are structured such that it reflects the surrogate’s time, effort and inconvenience, and not tie compensation to a successful live birth. Compensation is often divided into equal installments. Payments generally begin after there is a positive pregnancy test or confirmation of fetal heartbeat.

(9) Medical Insurance Coverage
The contract will detail the surrogate's current health insurance coverage, and her agreement to keep existing coverage in full force and effect. Details surrounding the policy the parties plan to use to cover medical expenses should be detailed. Change in insurance, if any, and protocol to maintain insurance must be addressed. The contract should also require the Intended Parents to pay insurance deductibles, co-pays, or any other uncovered medical expenses.

For international Intended Parents, it is important to remember that insurance for both the surrogate, if necessary, and the newborn must be purchased. The children of international intended parents, although legally U.S. citizens upon birth, are not automatically covered by U.S. healthcare.

(10) Breach
There is very limited law in the area of contractual breach of surrogacy contracts. Consequently, general principals of contractual breach must be applied. The remedy and damage provisions as a general rule must be proportionate to the nature of the breach. Therefore, it is advisable to make a distinction between material and non-material breach provisions. Moreover, as with a breach in any contractual situation, notice and cure provisions should be included as well a clause providing for alternate dispute resolution.

The ultimate goal of the contract for every surrogacy arrangement is two-fold: that all parties fully understand the process and what is expected of them from start to finish, and that the relationship between the parties is so solid that the contract is never reviewed after signing.

Meg Ledebuhr is an Illinois licensed attorney and a Chicago native. She received her JD from Chicago-Kent College of Law and her undergraduate degree in Political Science and Spanish from Vanderbilt University. She was ConceiveAbilities’ Director of Legal Services & Client Advocacy for over five years . Meg’s many interests include time with her husband and two young sons, international travel, Chicago sports, and brewing the perfect cup of coffee.