According to co-authors, Marla Neufeld, Esq. and Jeffrey Kasky’s of the American Bar Association’s recent book, The ABA Guide to Assisted Reproduction, Techniques, Legal Issues and Pathways to Success:
There are many types of contracts involved relating to assisted reproductive technology (“ART”). These should be executed prior to the start of any medical procedures that a donor and/or surrogate will undergo in preparation for the retrieval or embryo transfer. Such contracts include gestational surrogacy contracts, traditional surrogacy contracts, egg, sperm, or embryo donation contracts, embryo disposition forms, and trust and estate documents, just to name a few.
Many factors need to be considered and customized when determining what type of surrogacy contract and legal processes an intended parent needs to follow when using a surrogate. The process and type of contract will depend on certain variables, such as whether or not it is a traditional vs.
gestational surrogacy and whether or not the intended parents are single, married, or a same-sex couple (married or unmarried), among many other factors. Depending on the state where the surrogacy is occurring, the name of the contract may change, and the process in naming the intended parents, as the legal parents, differs accordingly. Regardless, the general legal principals in a surrogacy contract are similar across state lines to protect all parties involved.
When contemplating using a surrogate, it is critical to obtain experienced legal services throughout the process. An attorney needs to be retained to prepare a contract between the intended parents and the surrogate. Many states require this type of contract even before the embryo transfer takes place and most fertility clinics will not start medications until the aforementioned contract is fully executed. The purpose of the contract is to address the many questions that arise during the pregnancy and a solid contract prevents disputes from occurring between the parties by laying out all of the financial terms.
There is no “standard” or “boilerplate” form contract! Certainly there is some language that appears in every contract (as discussed below), but every case needs to be addressed with care by a competent legal professional who understands how to juxtapose the law with the process and also with the various parties and entities involved in the process. Here’s an example: If your lawyer knows that the judge who has your case likes things done a certain way or that the clinic you’re using requires certain types of releases or notices prior to getting down to the process, that knowledge can save you time, money, and aggravation and might even save the whole process from failing due to unnecessary delays. As you will see, in surrogacy, timing is everything.
Surrogacy is a very specific area of law. It is crucial
that the intended parents retain an attorney experienced in ART law to represent them to prepare the surrogacy contract. Additionally it is advised that the intended parents offer and
pay for a separate ART attorney to represent the surrogate during the contract negotiation stage. In fact, don’t be surprised if your IVF clinic or attorney actually requires
that the surrogate have her own attorney to guide her through the contract. This small additional expense is for the protection of all parties, not least of all, protects you
Descriptions of some of the more notable provisions in a surrogacy contract follow below:
Purpose and Intent of Surrogacy Contract
The beginning of a surrogacy contract includes recitals that set out the purpose of the contract and defines each party’s intent to either give up parental rights to the child (surrogate and surrogate’s spouse or possibly her partner) and to accept parental rights to the child (intended parents) and introduces said parties with regard to age, marital status, and place of residence. The parties’ obligations to either terminate parental rights or accept such parental rights are addressed at length within the surrogacy contract as well and the surrogate and her spouse or at times a partner will agree to sign whatever documents necessary or attend any court proceedings to make sure that the child she carries ends up being the legal child of the intended parents.
Physical Examinations and Psychological Evaluations
All parties to the contract agree to participate in medical and psychological evaluation and counseling sufficient to assure that they fully understand the risks, benefits, and appropriateness of their participation in the surrogacy arrangement. The surrogate and surrogate’s spouse (and at times, a surrogate’s unmarried partner) also agrees to execute medical releases and authorizations to permit the intended parents access to all medical records and information as deemed necessary or appropriate for such purposes as may be related to the surrogacy process. This means that no medical information relating to the pregnancy can be kept confidential.
Prenatal Care of Surrogate
Many potential intended parents are concerned about how the surrogate will act during the pregnancy and whether she will take good care of herself and the child. Based on the constitutional provisions set out above, while you cannot force a surrogate to conduct herself in a certain manner as it relates to her body, a contract can set out reasonable guidelines for a surrogate to follow whereby a breach of such requirements could result in a financial obligation of the surrogate. When signing a surrogacy contract, the surrogate agrees to maintain optimum health and refrain from activities which could cause injury to her or impair her ability to become pregnant or to carry a child.
Child’s Name and Birth Certificate Process
A surrogacy contract must have provisions establishing what state law will apply and the applicable anticipated process for the determination of parental rights for the intended parents. Each state has very different procedures on how to handle the birth certificate process.
Termination of the Pregnancy and Selective Reduction
While the Constitution places limits on the intended parents’ ability to force a surrogate to terminate or not terminate a pregnancy, a surrogacy contract will set out the parties’ wishes as to how to handle the situation of a birth defect
discovered during the pregnancy. This contract language provides the intended parents with a contract remedy of monetary damages against the surrogate if she does not respect the wishes of the intended parents. The surrogate has the right to abort or terminate the pregnancy if she wants to. She has the right to not
abort, terminate, or selectively reduce if she doesn’t want to, even if the intended parents and all the doctors in the world are telling her she should or must. This is one of the many leaps of faith that are taken when engaging a surrogate to carry your pregnancy,
and this underscores the importance of having an experienced surrogacy professional engaged to do the vetting and matching with the surrogate, as opposed to finding one online. While success stories do exist from families who took the DIY approach to matching, there are horror stories, too. Govern yourself accordingly.
Payment of Surrogate Expenses and Payment Terms
The money for a surrogate is typically held by an independent third party called an escrow agent who disburses all payments to the surrogate in accordance with the terms of the surrogacy contract. The intended parents are required to keep a certain amount of money in the escrow account at all times to ensure there is enough money available to pay the surrogate throughout and after the contract as required by the terms. A surrogate typically receives a few smaller payments prior to becoming pregnant, such as when her injectable medications start and at the embryo transfer; however, the main payment of her fee typically begins when her pregnancy is confirmed and continues to be paid to her every four weeks as the pregnancy progresses.
The payment provisions in the surrogacy contract set out the financial terms such as what payments are lawful to the surrogate, how much the surrogate will receive for her services, and when the payments are to be made. Common payments made to a surrogate include her reasonable living expenses, her “fee,” an allowance for maternity clothes, payment for the start of her injectable medications and embryo transfer, payment of her attorney fees, and payment for or reimbursement of all medical, hospital, and pharmaceutical and laboratory expenses associated with the IVF, hospital, and delivery.
Confidentiality and Contact with Child
With the popularity of social media, an intended parent who wants to keep the nature of their surrogacy arrangement private may have concerns that the surrogate may post pictures disclosing identifying information of the intended parents and of the pregnancy. A surrogacy contract should have strict confidentiality language requiring all parties to agree to take all reasonable precautions to maintain the strictest confidentiality with regard to the contract. The contract should restrict the parties from providing any information regarding the identities of the parties or the contemplated child, the results of any medical testing relating to any of the parties or the child, or terms of the contract, to the public, news media, on social media, or other individuals or entities without the express prior written permission and consent in each instance of all the parties.
Surrogate Refuses to Terminate or Reduce the Pregnancy If There Is a Problem
A legal risk when considering using a surrogate is that the surrogate has the sole source of consent with respect to her body under the US Constitution. In the event during the pregnancy the doctor determines that there is a birth defect or genetic abnormality and the parties’ contract provides that the surrogate agrees to terminate the pregnancy, the surrogate can change her mind and decide not to terminate the pregnancy. The intended parents have to accept custody of the child, regardless of any type of impairment, and the only remedy against the surrogate is to stop payment to the surrogate and attempt to recover the money they paid to her and third parties; this may be difficult to collect. This concept is also applicable in context of any invasive testing. The surrogate may refuse the test even after previously agreeing to it (i.e., amniocentesis). Also important is if three or more embryos implant in the uterus of the surrogate and the intended parents want to selectively reduce the number of embryos. While the parties may agree, both verbally and in the contract to selectively reduce the pregnancy, no conversation or contract is binding; the surrogate has the final say and can change her mind on selective reduction.
Surrogate Changes Her Mind to Give up the Child
This problem is more commonly seen with traditional surrogacy whereby the surrogate has a genetic connection to the child. In some states, when a surrogate uses her own egg, she has a window of time after the birth to change her mind in giving up the child to the intended parents, similar to an adoption. Also, with surrogacy, having a crazy quilt of laws throughout the United States, there is risk that the surrogate may flee a surrogacy friendly state during the pregnancy and move to a state where it is illegal. While the parties’ surrogacy contract designates the state law that is to apply to the surrogacy process, this may still cause added legal expense to the intended parents who then need to enforce the contract and may have added legal proceedings to name them as the legal parents upon birth of the child.
Intended Parents Change Their Minds to Take the Child
There is always the risk that the intended parents will not accept custody of the child. There have been reported cases, for example, where the intended parents refused to accept custody of the child born via a surrogate when the child was born with a problem, such as Down syndrome.
Surrogate’s Breach of the Contract
There is always the risk that the surrogate will not follow the terms of the contract such as taking her required medications, eating healthy or living a healthy lifestyle, etc. Regardless of the impairment to the child caused by the surrogate’s poor choices during pregnancy, the intended parents have to accept the child, no matter what.