What to Include in a Surrogacy Agreement

Ah, the language of legalese. So clear to understand…as clear as mud that is.

There are many factors for both the intended parent(s) and the surrogate mother/gestational carrier to consider when drawing up an initial draft of a surrogacy contract, also known as a gestational surrogacy agreement (GSA). The good news is that an experienced attorney who specializes in reproductive law will be your lighthouse to help you navigate through the basic parts of a surrogacy contract. What might this process look like?

The first stage of drafting your surrogacy agreement consists of an initial consultation with your attorney. There, you will talk through the basic known factors of your surrogacy partnership, such as the type of surrogacy agreement and arrangement that you will be entering into. (Read about agreements and arrangements in Understanding Your Surrogacy Options.) This typically includes filling in the known blanks in a template, almost like you would if you were working on a will or a trust. This includes general information like the names of the intended parents, the surrogate mother/gestational carrier and her partner, and other known information.

One of the most important factors to consider when drafting your contract is that communication is key.

The second stage is not as straightforward because it is based on the wishes and requests of the involved parties. This is where things can get a little head-spinny for many intended parent(s) and first-time surrogate mothers/gestational carriers.

One of the most important factors to consider when drafting your contract is that communication is key. The process of generating a contract is a great vehicle to help turn over any un-flipped stone that you can think of before beginning your surrogacy journey. In this respect, a surrogacy agreement is a document that will help protect all who sign on the dotted line and it is also the road map of your surrogacy partnership. Let us help you weed through the "overwhelm” of where to start this second stage with a list of what you'll likely want to consider when drafting your surrogacy contract.

1. The Transfer

This is where it all begins—the surrogacy journey that is. Apart from being matched with your surrogate mother/gestational carrier, and moving through the initial medical testing and physiological screening process, it is time to come to a mutual agreement on some of the core logistics of the embryo transfer.

Medications will likely be prescribed by the overseeing fertility specialist. Participating parties involved in thestimulation, retrieval, and transfer will need to be amenable and agree to follow the fertility specialist’s protocols as well as take the prescribed medications both pre-transfer and post-transfer as specified.

Determine the type of transfer. There are two different types of transfers that can take place: a fresh or a frozen transfer. In a fresh in vitro fertilization (IVF) transfer, the intended mother or egg donor will undergo stimulation and retrieval of her eggs that will then be fertilized by the intended father or sperm donor, which is then cultured and grown to a viable embryo and transferred directly to the surrogate. If this is the case either the intended mother or egg donor and surrogate mother/gestational carrier would need to sync menstrual cycles.

In the case of a frozen embryo transfer (FET), the transfer is rather simple. The embryos are thawed and then transferred to the surrogate mother/gestational carrier.

How many to transfer? AND how many transfers? Tis the (very important) question. In your contract, you will need to specify how many embryos will be transferred for each attempt at a successful pregnancy. Most fertility specialists and surrogate mother/gestational carriers will request a single embryo transfer. Likewise, your contract will need to indicate how many attempts each party is willing to attempt and can afford before looking into alternative options.

2. Let’s Talk Money

No seriously, you’ll need to talk about this. Whether you have entered into a compensated surrogacy agreement or a compassionate surrogacy agreement, a few items concerning incurred and reasonable expenses will need to be clearly indicated within the context of the surrogacy contract.

The surrogacy fee for starters! If you have entered into a compensated agreement, then the fee which both the intended parent(s) and surrogate mother/gestational carrier have agreed on will need to be clearly indicated. This also includes the payment terms of the surrogacy fee. Some surrogacy contracts have it broken down in partial payments for every trimester with the final payment being after the birth of the child.

Medical expense reimbursement will also need to be clearly defined. The majority of the OB and all pregnancy-related billing will be sent to the surrogate mother/gestational carrier but it is ultimately the responsibility of the intended parent(s). This also includes prenatal vitamins and any needed medications throughout the gestation.

A maternity clothing budget may also be something that is mentioned in the contract. The reality is your surrogate mother/gestational carrier’s body will change throughout her pregnancy and it’s important that she is comfortable.

Other various surrogacy related expenses may be indicated here as well. Such as childcare reimbursement for when she attends her obstetrician appointments. House cleaning services for when she is further along in the process. This can also include a life insurance policy for the surrogate as well as any other specific requests that either party may have. Other things may include massages, acupuncture, special dietary requests, or any other request that would either provide comfort for the surrogate mother/gestational carrier or could positively impact the pregnancy. Each contract and surrogacy is unique as will be the fine line details of money and reimbursement of allowable and reasonable expenses.

3. Gestational Care

Diet and overall health care usually have a shining spotlight in many surrogacy contracts. Now, it should always be within reason and under the guidance of the overseeing obstetrician. Typically, the surrogate mother/gestational carrier will be asked to sign a HIPPA release form so that the intended parent(s), will have access to the surrogacy pregnancy-related medical records. At the end of the day, it is best to have a clause that clearly points out over-all health care as recommended by the overseeing physician and the recommended standards of pregnancy care. Although it may seem like common sense, you will want to include restrictions regarding smoking, alcohol, caffeine intake, drug use, and general dietary habits

Travel limitations are also something to mention. Especially as you turn the corner into the third trimester or if travel is requested out of the country. It may be wise to indicate a certain gestational time frame and limit it to inter-country travel.

4. The Birth Plan

This is a biggie. Not in terms of a hardline contract item, but more so to talk through a rough outline of a game plan prior to entering into a contract. It is all a matter of personal choice and preference. The surrogate mother/gestational carrier typically has the most influence on the birth plan, and understandably so.

The choice of the hospital mostly falls in the wheelhouse of the surrogate mother/gestational carrier. They’ll want to deliver at a hospital they feel comfortable with as well as dictate if the intended parent(s) can be present during the birth. Many surrogate mothers/gestational carriers will want someone there to support them through labor other than the intended parent(s). It is beneficial to everyone for the surrogate mother/gestational carrier to be as calm and as comfortable as can be expected. A bit of understanding can go along away. This is definitely something you will want to talk through and include in the contract.

Expect the unexpected. Unforeseen issues may happen and the prime time for those issues to occur undoubtedly is during labor. A few examples include labor induction, cesarean section, medications used for birth, delivery methods and emergent fetal care. Talk through all of the possibilities with all parties involved in crafting this section of the contract. You’ll find there will be a lot of “what ifs” to consider!

At the end of the day, it is important to have the opinions of all parties involved both considered and thoughtfully honored.

5. Post-delivery

Maternity leave is something that will need to be addressed within the terms of the contract. It will likely involve compensation of lost wages and reimbursement for the amount remaining after FLMA or the surrogate mother/gestational carrier’s employer leave benefits, if applicable. However, this will depend on several factors including how long she will want and/or need for recovery and if there were any physical complications during or post labor.

Medical and psychological expenses should also be well thought out when drawing up the surrogacy contract. Aside from necessary post-birth follow up, consideration of mental health care should be duly considered. Especially, since many women experience postpartum depression after giving birth.

The one question that can be a hard lump in the throat for some intended parent(s), especially those who have battled years of infertility, is to imagine how you would have handled your own pregnancy if surrogacy wasn’t necessary. Thinking from this mindset will help you as an intended parent see things through a double-sided lens. At the end of the day, it is important to have the opinions of all parties involved both considered and thoughtfully honored. Everyone is on this journey together.