An In-Depth Look at Surrogacy Contract Templates

The Essentials of Surrogacy Contracts

A surrogacy contract, also known as a surrogacy agreement, is a legal document that outlines the conditions and particulars of a surrogacy arrangement. In many cases, it will set in place the path by which the intended parents will adopt the child, in a case where they are not the ones who have donated their sperm or eggs for the procedure. It concerns such basic issues as who the child will live with after it is born, who will assume certain parental responsibilities, and what will happen if the surrogate mother suffers health issues or loses her job during the pregnancy.
Essentially, a surrogacy contract is a legally binding agreement that can help to prevent disputes both within the surrogate, egg donor, and/or intended parents’ group . Of course, it’s absolutely essential that you have the help of a lawyer who specializes in surrogacy law for the final drafting of the contract, as there are many aspects of surrogacy that are understandably not necessarily covered by state law. As well, it contains a great deal of detail that could be easily misinterpreted on a first read if your lawyer did not have the experience necessary to explain it in the simplest terms possible. That said, it’s very important for all parties to understand that any points agreed to before the contract is signed may well become challenges later on.

Components of a Surrogacy Contract Template

A surrogacy contract template should include the most important key elements of a surrogacy contract, and help ensure that regardless of how the contract is finalized in practice, its general terms have been agreed upon by the parties beforehand. For this reason, no matter what kind of a surrogacy contract template you’re using, it should address the following items:
Parental Rights. Who will be named as the custodial parents of the resulting child or children?
Compensation. How will the surrogate be compensated, including pre- and post-birth expenses?
Medical Issues. Who’s responsible for what when it comes to the pregnancy? What about travel costs?
Legal Matters. Are the intended parents and the surrogate going to employ their own – or a joint – attorney to complete the process? If the surrogate is not a citizen of the United States, will there be issues regarding her immigration status?
Counseling Issues. Will all involved parties be required to undergo counseling to prepare them for their roles after the delivery?
The more complete the surrogacy contract template, the quicker and easier the final surrogacy contract can be completed.

Jurisdictional and Legal Aspects

The legal framework within which surrogacy contracts operate varies widely from country to country. For intended parents, it is generally desirable to have the contract governed by the law of the country in which they reside or in which the surrogate resides. The rules are not universal, of course, and each jurisdiction has different legal requirements for what must be included in the contract. Many jurisdictions require the contract to be signed before a designated authority, such as an experienced notary public or an attorney.
Some jurisdictions prohibit compensation to the surrogate. The best practice is, of course, to consult with a legal expert regarding the local and international laws when drafting the surrogacy contract. A professional can provide more information than a simple template and help ensure that the contract complies with all relevant legal requirements.

Tailoring a Surrogacy Contract Template

In many cases, intended parents or a surrogate will draft an independent contract to be customized to fit their individual situation. Intended parents and/or the surrogate can easily add, change, or delete any of the standard clauses or terms found in a surrogacy contract template.
The use of a surrogacy contract template saves much time and cost when constructing a contract. Given surrogacy contract templates are not typically overseen by attorneys, many states recommend utilizing surrogacy contract templates drafted by licensed attorneys with experience in family law, reproductive rights, or related areas.
The use of a surrogacy contract template does not circumvent the importance of negotiating surrogacy contracts, nor does it undermine the responsibility of both parties to retain their own legal counsel prior to signing a surrogacy contract. Surrogacy contract templates, especially those composed by attorneys experienced with surrogacy agreements, will be robust and concise; they will protect both the intents and purposes of the parties while still leaving room for negotiations (in fact, negotiations may be covered in the surrogacy contract template, leaving parties with limited areas that may need to be negotiated).
In order to customize a surrogacy contract template, intended parents and/or a surrogate can either remove or reword sections of the contract template in order to bring about their preferred outcome. It is important to realize that certain words and/or phrases in a surrogacy contract template may have legal significance, and therefore it would be wise to discuss a proposed change of this nature with an attorney.
Generally speaking, proposed changes to a surrogacy contract template may be presented in writing or verbally. It is generally preferred for amendments to the contract, including the elimination of sections such as the payment schedule or parenting rights during pregnancy, to be made in writing.

Avoiding Common Mistakes in Surrogacy Contracts

Surrogacy agreements can quickly become complicated due to the numerous variables involved. Specialty attorneys understand that one size does not fit all. Every surrogacy contract must be drafted to meet the diverse needs of each party. As a result, inexperienced parties may encounter problems during the drafting process. It is important to avoid these mistakes:
Incomplete Medical Information
Both the surrogate and the intended parents (IP) should be open and honest about their reproductive health when starting with surrogacy contracts. The surrogate should disclose any history of sexually-transmitted diseases, drug and alcohol abuse , smoking or other medical problems that could affect the pregnancy. The IPs should also be transparent about their fertility and health issues. The surrogate deserves to know about any major diseases in the IP’s family history. This type of information will help the attorney specialist complete the surrogacy contract more efficiently without having to make changes down the road.
Restrictions on Personal Matters
The contract should only address issues that relate directly to the surrogacy. It is a mistake to include anything that has nothing to do with the pregnancy. This can include unreasonable restrictions on the surrogate’s medical decisions and diet. The surrogacy contract should only address medical decisions that affect the fetus. Certain issues may involve negotiation, but the IP has no say in the surrogate’s food, clothing, or beverage choices.
Non-legal Contracts
Many IPs and surrogates will attempt to avoid high legal fees by using a free or non-specialty contract. While some general family law firms offer low-cost templates, they do not have experience with the unique issues that arise in surrogacy contracts. While some non-legal contracts may be irrelevant under state law, a surrogate’s agency may still use them during negotiations. Furthermore, an unrecognizable contract can create issues during social security compliance and financial matters.

The Importance of a Surrogacy Agency

In cases where the surrogate is working with a surrogacy agency, that agency may offer help with creating and administering the surrogacy contract. While every agency will operate slightly differently, there are generally a few common elements to be aware of. Some agencies may offer their services as part of their standard compensation package, allowing intended parents to save on costs. Agents may also be able to recommend legal counsel who can create or guide the creation of the contract. Such an agency referral could be an advantage for intended parents who are unfamiliar with the surrogacy process and requirements, as it acts to simplify the process by offering support. If you are considering working with a surrogacy agency, a great deal of their services will come down to the people involved on the ground in your local area. Before choosing an agency, you should be sure that they have the proper structural facilities in place to be able to offer the services you feel are necessary to your family.

Surrogacy Contracts in the Real World: Examples

Over the years, there have been numerous successful surrogacy contracts. These contracts provide a framework for understanding the obligations each party has, which can, in turn, lead to a smooth and swift surrogate process.
We’ve pulled together information on some of these contracts, so you can know exactly how these contracts work in practice, and just how beneficial they can be:
Case Study 1: An Independent Surrogacy Contract Support Procedure A couple contracting with an independent surrogate was given a checklist to follow from start to finish. The surrogate the couple contracted with had the fetus implanted into her womb and was pregnant soon after. She successfully completed the pregnancy and gave birth to a child who was placed with the couple.
The surrogate followed the protocol, and it was simple and straightforward for the couple. The surrogate was compensated in full, and there were no additional issues, such as the surrogate asking for joint custody, or to keep the child, etc.. An independent surrogacy contract works well in this case because everyone followed the rules put in place by the contract.
Case Study 2: A Gestational Surrogate Contract Package Another couple who contracted with a surrogate was also given a simple, straightforward, one-stop-shop "contract package." This package included a pre-birth order, a non-biological father order, and a surrogate contract.
The surrogate became pregnant (with multiples) and was successful in delivering two children. Both children were placed with the couple once the surrogate contracted to relinquish her rights and responsibilities to the couple.
The surrogate was compensated fully, satisfactory for both the surrogate and the couple. Again, a gestational surrogate contract worked efficiently because everyone understood the rules.
Case study 3: A Dispute With a Known Surrogate Another couple contracted with a known surrogate. The surrogate gave birth to one child, and the couple was required to pay medical expenses. The surrogate also decided to breastfeed the child, which the couple was unaware of at the time it contacted the surrogate. There was also a discrepancy with the amount being paid to the surrogate. However, the couple contacted a surrogacy contract agency, which stepped in and started acting as a third-party mediator. The mediation process helped the surrogate realize the mistake she made, and with some compensation from the surrogate, the couple was satisfied with the resolution.
There are many happy surrogacy contracts stories out there, and if you want to read one or share one, have you check out the surrogate moms blog through the American Fertility Association: You can also read this post from the American Society of Reproductive Medicine, which details the basics of the surrogacy contract process.
The American Society of Reproductive Medicine gives you the basic facts you need to know about surrogacy contracts and how they are used in the real world.

Tools and Resources for Surrogacy Contract Templates

Surrogacy contract templates may be available for download online. However, caution is recommended when using these templates. There may be hidden costs associated with using the template if a completed sample is used. Some of the online websites do not provide refunds for the templates once downloaded. Legal aid services may also provide template documents. Furthermore, there may be local organizations that have access to surrogacy contract templates that can be shared . Once again, care should be taken to obtain advice from qualified surrogacy contract lawyers if browsing through websites for surrogacy contract templates. There may be jurisdiction specific surrogacy contract templates. States where the surrogacy may take place may have specific surrogate contract rules that apply. Further, state laws may govern enforceability of the terms agreed to in a surrogacy contract.