A surrogacy agreement is a contract between the surrogate and the intended parent that clearly defines the roles, rights, and responsibilities of each party as well as detailed information about the embryo that will be used. Each party is advised to have legal representation present at the drafting, reviewing, negotiating, and finalization of the contract. It is also a common practice for the intended parents to pay the attorney fees for the surrogate. The surrogacy agreement or contract is very extensive and will typically cover the following topics.
Governing Law – The contract will address which state law will govern the agreement.
Separate Legal Counsel – The contract specifies that all involved parties have had separate legal counsel and that they have each reviewed the contract and that they understand the contract.
Conception – The contract or agreement should determine how the conception will take place and give detailed information about the embryo or embryos, gametes, etc.
Medical Instructions – The surrogate parent, or carrier, will typically agree to limited travel and activities. It is also common for the surrogate to agree to a nutrition plan to ensure a healthy and safe pregnancy.
Custody – The contract agreement clearly indicates that the intended parents have immediate custody of the child once born.
Resolution of Parental Rights – The contract states in clear and plain language exactly how the parentage will take place. This section will include the plan of action for the intended parents to become established as the legal parents; the surrogate and spouse, if applicable, will be immediately relieved of all parental rights.
Divorce, Separation, or Marriage – The contract should determine what will happen if either party should get married, divorced, or separated.
Death or Disability of Intended Parents – The contract should include a plan of action for the gestational carrier if the intended parents died or became physically disabled. This section covers who will get the child as well as how all of the financial obligations will be met.
Child’s Name and Birth Certificate – This section outlines the plan for the intended parents to be listed on the child’s birth certificate.
Health Insurance – There should be a full review of the surrogate’s health insurance policy to ensure there are no exclusions. The intended parents generally pay any deductibles and/or co-pays for the surrogate.
Expenses Payments – State law will govern how the payments will be provided to the surrogate and how they will be characterized.
Breach of Agreement – The contract or agreement should clearly define what constitutes a material breach versus a non-material breach. Contracts will generally include notice and cure provisions.
Miscarriage, Consensual Abortion, Stillbirth, or Death of the Child – The contract should define what will happen with the remains and if another attempt will be made at pregnancy.
Assumption of Risk and Release of Liability – Each party should clearly define the risks they assume when they are entering into a surrogate agreement.
Assumption of Responsibility – The contract should clearly define the responsibilities of the intended parents.
Notification of Hospital and Labor Plan – Contract should be clear on the plan of action for the time the surrogate goes in to active labor.
Elective Abortion, Selective Reduction, and Termination of Pregnancy – The contract should address the matter of elective abortion, reduction, or termination of pregnancy. This section will cover what happens if the carrier or surrogate were asked to abort, selectively reduce, or terminate the pregnancy. The contract will allow for such termination if there is no immediate threat or risk posed to the surrogate.
Genetic Testing and Failure of Intended Genetic Relationship – It is very unlikely that an embryo mix up would occur; however, the contract should address such matters.
Duties of the Spouse of the Surrogate – If the surrogate or gestational carrier is married, the contract will typically require the spouse to be a party of the contract.
Confidentially and Continued Contact – The parties should agree on confidentiality and continued contact during the term of the pregnancy and after.
Other Provisions – The contract should outline or address any other provisions.
Surrogacy agreements should be very extensive and also tailored to your specific needs. Keith & Associates Legal, PLLC has an experienced team of attorneys who can help draft, negotiate, and finalize your surrogacy agreement.
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