What is Included in a Surrogacy Agreement?

A surrogacy agreement, or surrogacy contract, defines the rights and responsibilities to all parties to a surrogacy. When properly drafted, a surrogacy agreement protects both the intended parents and the surrogate, and helps the surrogacy experience to be a positive one for everyone.

People go into the surrogacy experience filled with hope, and usually with some anxiety. Both are justified. Surrogacy involves biological processes, personal and legal relationships, and strong emotions. Unexpected developments happen, including multiple pregnancies, health complications for the surrogate, fetal abnormalities, even a breakdown in the relationship of the intended parents.

Because nobody can predict exactly what complications may arise during a surrogacy, it is important to plan for many possible contingencies. The easiest way to resolve a potential dispute is to address the issue while it is still a hypothetical situation. The job of a surrogacy attorney is to help prospective surrogates and intended parents anticipate and prevent potential disputes so that the process can be as joyful as they hope.

What is a Surrogacy Agreement?

A gestational surrogacy agreement is a binding legal document, of course, but it is so much more. Surrogacy is often an unfamiliar journey for l surrogates and intended parents alike. A comprehensive surrogacy agreement is like a roadmap, or more aptly, like a GPS: it provides guidance for both the expected and the unexpected. Accordingly, a surrogacy contract should contain provisions regarding:

• The intentions of both the intended parents and the surrogate in entering into the contract
• The rights and responsibilities of both the surrogate and the intended parents under the contract
• A statement by the surrogate (and if necessary, her spouse), affirming the parental rights of the intended parents as to the child(ren) of the pregnancy
• A statement by the intended parents expressing their intention to assume parental rights and responsibilities
• Description of how the surrogate will be compensated for her services, including what expenses she will be compensated for, such as living expenses and medical expenses not covered by insurance
• Establishment of a mechanism (such as an escrow account or trust) by which payments will be received from the intended parents and made to the surrogate
• Health insurance information for the surrogate, child, and intended parents
• Description of how and how frequently the parties will communicate with one another during the pregnancy.
• Agreements regarding the intended parents’ involvement in medical decisions during the pregnancy
• Agreements regarding the surrogate’s health choices and behavior, such as diet, exercise, travel, potentially risky recreational activities
• Resolutions for potential contingencies and sensitive issues such as a multiple pregnancy, selective termination chromosomal abnormality, or risk to the surrogate’s health from continuing the pregnancy
• Resolution of privacy issues, such as parties’ postings of updates and images on social media
• Consequences for breach of the surrogacy agreement by either party
• Which state’s laws will govern in the event of a dispute between the parties

Because it can be difficult to anticipate all the provisions that may be needed in a surrogacy contract, it is important to work with an experienced surrogacy attorney. Whether you are an intended parent or prospective surrogate, your attorney will help you understand your obligations under a surrogacy agreement and ensure that your rights are protected.

An attorney who does not routinely practice in the area of assisted reproductive technology (ART) law may not have the background to help you thoroughly explore and resolve potentially sensitive issues. ART is a rapidly-evolving area of both medicine and law; if an attorney does not regularly handle ART matters such as surrogacy, he or she may fail to address all relevant issues, leaving the parties open to a potential dispute during the pregnancy.

Who Creates the Surrogacy Agreement?

As a general rule, the attorney for the intended parents will create an initial draft of the surrogacy agreement. However, it is important that the process be a collaborative one between the intended parents, the gestational surrogate, and of course, their lawyers.

After a first draft of the contract is created, the intended parents’ attorney forwards it to the prospective surrogate’s attorney for review. The surrogate and her attorney will go over the provisions carefully, often requesting additions or changes. After all parties are satisfied that their interests are protected, a final draft is prepared for signature and the surrogate can move forward with the necessary medical procedures.

It is vitally important that both the intended parents and the prospective surrogate be represented by their own counsel. While they may have a shared goal—the birth of a healthy baby for the intended parents—their interests may conflict at various points in the process. It is not ethical for one attorney to represent both parties.

Contact an Experienced South Carolina Surrogacy Attorney

If you have further questions about surrogacy or surrogacy agreements in South Carolina, contact Brinkley Law Firm to schedule a consultation.