A surrogacy contract gives much-needed protection and assurance to the surrogate and IP in case of unexpected events.
The Gestational Surrogacy Contract is an important document in any surrogacy journey, which explicitly outlines each party’s rights, roles, and responsibilities before, during, and after the surrogacy pregnancy. When framed correctly, it reduces the miscommunication among the parties involved: surrogate mother, intended parents, and surrogacy agency.
In this guide, we delve into the essential aspects of surrogacy contracts, highlighting how they safeguard the rights of intended parents, surrogates, and the precious lives they are nurturing.
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Why a surrogacy legal contract/agreement?
Gestational surrogacy is a financially and legally complex process. An agreement is needed to ensure everyone agrees with all points and no one is offended by the wavering or possible heart-change of the other party.
A contract means that a surrogate mother and the intended parents can count on each other and have it written down, signed, and approved legally.
What is a gestational surrogacy contract?
You may want to share the joy, but you still need to know that you can count on the parents ‘ financial as well as emotional support. It is an important part of any surrogacy contract because of the following reasons –
- It specifies your rights and responsibilities, and it’s not just a verbal agreement in writing.
- Second, if something goes wrong, the agreement should guarantee that you have legal protection. No one can come back on you once it’s signed and leave you with a mess to deal with.
- It is also important that every potential scenario is protected by the contract. For example — What happens if you have a pregnancy-related condition? What happens if the child’s death is premature? What if the baby presents you with a health risk?
- What happens if the surrogate has serious medical risks during the surrogacy process? There may be many circumstances, and surrogate and intended parents may disagree with any of them. Before starting the process, it is important to iron out all of them in advance.
What does a surrogacy legal contract mean?
A surrogacy contract means that each party- gestational surrogate mother and intended parents are bound by the terms and conditions written in the agreements. They need to follow and adhere to each term to the best of their capacity. If they fail to do so, they will be applicable to the penalty as mentioned in their surrogacy agreements.
It is not only legally important but having personal responsibility toward the surrogacy process matters most.
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How to draft and negotiate a surrogacy agreement?
The legal surrogacy process is not easy for both surrogate mothers and intended parents.
The surrogacy arrangement should be a collaborative effort, agreeing to the terms included by each party and their respective lawyers.
The expected parents would generally work with their lawyer to draft the initial contract, which will then be sent for approval to the surrogate lawyer and her counsel. The surrogate must consult with her lawyer to ensure consideration of her needs and desires, make any necessary adjustments, and return it to the attorney of the intended parents.
The two attorneys will continue to discuss the deal until all of them are satisfied with the terms included. The documents can then be signed and medical procedures will be followed by the intended parents and surrogate mother.
It is necessary for the intended parents to negotiate the contract and for a surrogate to have their own lawyers. The lawyers must serve as the partners of each side, representing the interests of their client and maintaining a fair and balanced final contract.
Without lawyers, the intended parents and the mother would have to negotiate directly, which could be traumatic and disruptive to their relationship.
Before any medical procedures start, the contract must be completed and signed. During the medical process, both parties must be covered, and until the agreement is in effect, most fertility clinics will not perform the medical procedures of the surrogate.
What should you look for in a surrogacy contract: Surrogacy contract checklist
Every surrogacy contract will look very different based on the surrogacy laws of the state as well as the needs and circumstances of each party.
In general, the following is the checklist of the contract of surrogacy:
- Finances -Including the basic payment of the surrogate, as well as additional compensation that the surrogate may obtain for invasive procedures, bed rest for days, twins’ bonus, or loss of wages, transport expense, and living expenses in case of bed rest, etc.
- Risks and liabilities related to pregnancy– The well-being of the mother and her obligations to care for herself and the baby during her pregnancy
- Agreement on sensitive medical process issues such as selective reduction and termination, if necessary
- Who will accompany the surrogate to the prenatal appointments and many more
Why one should avoid independent surrogacy contracts?
Some surrogates and intended parents believe that downloading a Surrogacy contract sample online would be more convenient.
While many websites are offering free downloads of the Surrogacy contract templates, attempting the surrogacy agreement is never advisable without proper legal representation and advice. In the case of Surrogacy breach of contract, such documents will be not enough to protect the rights of each party.
Internet results of surrogacy contracts appear to be short-sighted and generic. Generally, they do not account for the individual needs and circumstances of each group, and they do not cover all the possible outcomes and factors that might influence the course of the surrogacy arrangement.
This can result in serious legal consequences, as well as increased opportunities for conflicts and confusion between the surrogate and the intended family. There is practically no security for the mother, the intended parents, or the baby without a strong legal agreement.
The goal will essentially be to protect the baby and his or her best interests throughout each gestational surrogacy process. Although the legal process may seem overwhelming, it is worth putting forward the required time and effort and working with an experienced lawyer who can create a strong agreement for legal surrogacy.
Are surrogacy contracts enforceable?
The answer can be yes or no.
In many surrogacy countries like Ukraine and Georgia and a few states in the USA, surrogacy contracts are valid and enforceable.
If you are planning to do surrogacy in countries where there are no clear surrogacy laws, then surrogacy agreements are not enforceable. In such a situation the surrogacy papers are just private written arrangement that has no legal value. Countries like Laos, and Kenya are countries where the surrogacy agreement is not enforceable.
Conclusion
Therefore, a surrogacy contract is a must for any surrogacy journey to avoid any conflict before pregnancy, during, and after the pregnancy.
One should make sure to consult an experienced reproductive attorney who is experienced in surrogacy laws in your area and good at negotiating and drafting surrogacy contracts. Online templates won’t do as much as you can with your attorney.
If you’d like to learn more about IVF, Egg Donation, or surrogacy services globally, check out the rest of our website at IVF Conceptions. We offer legally secure and affordable surrogacy services to build families with love.
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FAQs for Gestational Surrogacy Contract
What is a gestational surrogacy contract?
A gestational surrogacy contract is a legally binding agreement between the intended parents and a surrogate mother. It outlines the rights, responsibilities, and expectations of all parties involved in a surrogacy arrangement. This contract addresses various aspects, including medical procedures, compensation, decision-making, and potential contingencies.
How does the legal process work for gestational surrogacy?
The legal process for gestational surrogacy involves several steps. Intended parents and the surrogate typically consult legal experts to draft a comprehensive surrogacy agreement.
After this, legal proceedings may include establishing parentage through pre-birth orders or post-birth adoptions, depending on the jurisdiction. The involved parties should follow all legal requirements to ensure a smooth and legally recognized surrogacy journey.
What are the key elements of a surrogacy agreement?
A surrogacy agreement includes vital elements such as:
- Identifying the rights and responsibilities of the intended parents and the surrogate.
- Clarifying the surrogate’s compensation, including medical expenses and other costs.
- Addressing medical procedures, prenatal care, and decision-making during the pregnancy.
- Outlining the surrogate’s commitment to relinquish parental rights after birth.
- Establishing protocols for potential contingencies, such as multiple pregnancies or health complications.
Are gestational surrogacy contracts enforceable internationally?
The enforceability of gestational surrogacy contracts internationally varies based on the legal regulations of each country. Some countries recognize and enforce these contracts, while others may have restrictions or bans on surrogacy.
How do intended parents and surrogates negotiate terms?
Intended parents and surrogates negotiate terms through open and transparent communication. They discuss various aspects, including compensation, medical decisions, communication during the pregnancy, and the intended level of involvement.
Clear expectations, mutual respect, and legal guidance play a vital role in reaching a balanced agreement that benefits all parties and supports a successful surrogacy journey.