What’s the Point of Surrogacy Contracts? – Provisions & Validity

By Babygest Staff
Last Update: 07/05/2019

A surrogacy contract or agreement is a legal document whereby intended parents and surrogate commit themselves to carry out a surrogacy process. In short, it outlines the roles, responsibilities, and duties of each party during and after the pregnancy.

It allows both parties to have the specific conditions of the agreement, as well as how to proceed in case of mishaps or special circumstances, in a written document that has been reviewed and approved by duly qualified attorneys.

Purpose & validity of the contract

Having a surrogacy contract completed and signed prior to beginning any medical procedure is key to every surrogacy process. With a contract, all parties are protected during the medical process. In fact, most clinics won't perform any medical procedure on the surrogate unless a viable contract is signed.

In short, the main functions of a surrogacy agreement include:

  • To ensure the rights of all parties
  • To make sure that each party is committed to the terms of the contract and aware of the responsibilities associated
  • To determine the compensation for the surrogate and the expenses that will be incurred during the surrogate pregnancy
  • To establish how to proceed in case of mishaps or complications, including: abortion, breach of contract, death, divorce, regret...

To sum up, a surrogacy contract should be understood as a collaborative effort, as each one of the parties involved should contribute to the terms and conditions that are included.

When it comes to dealing with the legal part of a surrogacy arrangement, intended parents and gestational surrogate should have their own independent attorneys to negotiate the terms of the contract. By doing this, we make sure that the final contract is fair and respects each party's interests.

Parties involved & conditions

Surrogacy is the fertility treatment that involves a greater number of individuals. But most importantly, the surrogate, intended parents, and agency are key parties.

Intended parents must sign a contract with both the surrogate and the agency to ensure that both parties are aware of their responsibilities and rights.

Assisted procreation, as any other medical treatment, requires that you rely on the professionalism of the doctors and staff of the clinic you choose. Obviously, each clinic is different.

Contract between intended parents & surrogate

Prior to the IVF embryo transfer, every surrogate and intended parent need to work separately with their own attorney to draft and negotiate the terms of the contract. Surrogacy contracts between IPs and surrogate should outline two major legal issues:

Payments to surrogate
Your attorneys will negotiate the base compensation that will be given to the surrogate as well as payments made to cover pregnancy items such as maternity clothes. It should also include added compensation in case complications like carrying multiples or miscarriage occur.
Also, every surrogacy contract should outline the surrogate's basic responsibilities throughout the pregnancy, including healthy lifestyle habits, prenatal appointments, birth plan...

It is vital to work with an experienced attorney to draft a comprehensive contract that outlines all the aspects related to the process from beginning to end.

Contract between intended parents & agency

When entering into a surrogacy arrangement, intended parents will be working with an agency. For this reason, drafting a contract is crucial to avoid misconduct, conflict of interests, or breach of agreement.

This contract outlines the responsibilities of each party as well as the fees to pay for each service, including:

  • Matching process
  • Coordination between parties involved
  • Escrow account management
  • Establishment of legal framework & scope of the contract

Obviously, this contract does't replace the agreement between the intended parents and the surrogate, which is vital to every surrogacy arrangement.

Independent contracts

Not working with an agency or an experienced attorney is risky and unadvisable in all cases. Some surrogates and commissioning parents download a template surrogacy contract online and think that it will work.

The truth is, online templates are generic and don't account for each party's individual needs and circumstances. As a result, they don't cover all of the possible outcomes and factors that may affect the course of the pregnancy.

Not working with an attorney can help you save lots of money, but is can lead you to extreme legal consequences. Without a comprehensive legal contract, there is no protection in place for you, the surrogate, and the child.

FAQs from users

What happens if the gestational carrier fails to comply with the terms of the surrogacy contract?

By Dr. Joel G. Brasch (gynecologist).

The required legal contract between the IP and GC discusses the consequences for a lack of compliance. If there is a breach of contract, the IP can take legal actions to protect their rights.

How is a surrogacy agreement prepared?

By Natalia Álvarez (project manager).

Preparing and finalizing a surrogacy agreement involves various steps:

  1. First, your attorney will send you a written retainer agreement to review. It will explain the services included and their cost.
  2. Intended parents must sign it to continue.
  3. Once the retainer agreement is signed, your attorney will start working on the actual contract.
  4. Your attorney will send you the first draft of the agreement and send you a copy for review.
  5. The draft will be sent to the surrogate's attorney for review as well.
  6. Once both parties (you and the surrogate) have agreed to the terms of the contract, you must sign it.

How long does it take to finalize a surrogacy agreement?

By Natalia Álvarez (project manager).

It varies on a case-by-case basis, but approximately can take anywhere from one to four weeks. It depends on how quickly the drafts of the agreement are reviewed and approved.

Suggested for you

As explained above, many parties are involved in surrogacy arrangements, hence the fact that it is a challenging infertility treatment. Learn more: Professionals Involved in Surrogacy – Agencies, Attorneys & Clinics.

Also, it is important that you learn about the costs of surrogacy from beginning to end, keeping in mind all the professionals that participate in the process. Click here to read more: Surrogacy Cost Breakdown – Agency & Gestational Carrier Fees.

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