The Surrogacy Agreement Format Explained: What to Include and How to Draft It Right

What Is a Surrogacy Agreement?

A Surrogacy Agreement is a legally binding contract entered into by the Surrogate and Intended Parents. The Purpose of a Surrogacy Agreement is simply to make clear both parties have a very good understanding of their roles and responsibilities. Surrogacy in its self is a very expensive and complex process. A Surrogacy Agreement gives both parties some legal and personal security and confidence that they will be looking after the child in the best way possible, and safeguard both parties’ interests.
A well written Surrogacy Agreement is essential for your Surrogacy journey. It should cover all financial aspects, legal aspects, and the medical and emotional requirements of everyone involved. It should cover the Intended Parent’s Medical History, the Surrogate’s Medical History, the Surrogate’s Lifestyle, the Intended Parent’s Rights in the Surrogate’s Pregnancy , all financial aspects, the Surrogate’s Rights to any Termination, the Intended Parent Rights to Artificial Insemination, IVF and Egg Donation, the Intended Parent’s Rights to decide on a Prenatal Test, the Intended Parent’s Rights / Obligations to the Surrogate, confidentiality, the Surrogate’s Rights to Compensation, to give up or change Surrogacy Agency, to withhold consent. The Surrogacy Agreement should cover the Child that both parties are having together including Child Maintenance and Child Custody. It should also cover Surrogate expenses, travel, agency costs and other miscellaneous costs. Because of the nature of Surrogacy, no two cases are the same; a bespoke Surrogacy Agreement should be carefully prepared by a qualified Solicitor expertise in this area of Law and have it reviewed and approved by both parties.

Components of a Surrogacy Agreement

A well-crafted surrogacy agreement sets forth the legal obligations between the parties and addresses issues such as compensation, medical care, and disclosure of information. It is considered a contract and must be enforced according to its terms.
The agreement will outline all financial, medical, and other arrangements between the surrogate, prospective parents, and potential donor. It will also address the surrogate’s rights, responsibilities and limitations as well as the anticipated parental rights and obligations of the prospective parents.
Each party will be expected to fulfill their obligations and comply with the other party’s rights as described in the agreement. Failure to meet the terms may result in one party seeking damages, injunctive relief, or a specific performance of the agreement in court.
Parties may find the following basic terms are typically included in most surrogacy agreements:
The surrogate agrees to:
The Intended Parents agree to:
Medical coverage
Parentage Order
By executing the surrogacy agreement, the intended parents agree to an expedited pre-birth parentage order which establishes intended parents as the legal parents of the child. Pursuant to the order, the surrogate and the intended parents will be legally bound by the agreement.
Consultation with an experienced reproductive law attorney is essential to understanding the obligations provided within the surrogacy agreement.

Legal Necessities of a Surrogacy Contract

Surrogacy contracts must be drafted relatively close to the time of conception, otherwise some of the provisions in your contract can become unenforceable under the Uniform Parentage Act. The Uniform Parentage Act governs, among other things, the relationship between a child conceived by assisted reproduction and the gamete and/or surrogate donors. In California, section 7962 outlines the legal requirements for surrogacy contracts. Among those requirements, a surrogate may not be induced to enter into a surrogacy agreement by compesation greater than that which is necessary to compensate the surrogate for expenses that are necessary for her to carry the child. Any health care costs incurred by the surrogate must be paid for by the intended parents. In addition, the surrogate must be over the age of eighteen, must have given birth to at least one child before, and has to have received independent legal advice. Only attorneys who have completed thirty hours of prelegal family law mediation study and specialize in family law should represent a surrogate party to the surrogacy contract.

How to Draft a Surrogacy Agreement

After the parties have chosen an appropriate surrogate and the background and medical screenings are complete, the next step of the surrogacy journey is drafting a surrogacy agreement. The intended parent(s) and surrogate can start this process when they are ready. The surrogacy agreement should be reviewed by each party’s independent representation and they should discuss all the important terms that will be set forth in the agreement.
During this step, the following provisions are discussed and a comprehensive surrogacy agreement is drafted. Intended parents may want to review the appropriate surrogacy laws from each state and how they can impact surrogacy agreements. In addition, surrogate attorneys throughout the United States have access to several standard surrogacy agreements that are drafted based on certain surrogacy requirements based on each state’s surrogacy laws.
First, the agreement will address the surrogate’s willingness to participate in the surrogacy process. Important discussions must occur between the surrogate and the intended parent(s) regarding her intentions of the contract, and what her expectations are of the intended parent(s) and the relationship she hopes to have with the child after delivery.
A second topic of discussion includes the use or discard of embryos. The intended parent(s) as the gamete source can decide what to do with the embryos created following the implantation process. The surrogate and intended parent(s) can discuss and agree if they will discard or store the leftover embryos for future use.
A third topic of discussion is the surrogate’s medical decisions. This addresses who will make the medical decisions if the surrogate becomes incapacitated. Since she will be an expectant mother, other medical issues may arise during her pregnancy and care for her unborn child. Her intended parent(s) have the option to make medical decisions regarding the health and well-being of the surrogate and unborn child. The surrogate will also agree to general matters of care for herself during the pregnancy that may include dietary restrictions, exercise, medications and access to alcohol and tobacco.
The surrogate and intended parent(s) will also discuss if they want the surrogate to carry twins, triplets or more multiples. If so, the surrogate and intended parent(s) can agree to which multiples will be reduced/removed if needed. The surrogate is also required to take time off from work during her pregnancy, a minimum of 12-14 weeks or until the doctor clears her to go back to work.
Another portion of the surrogacy agreement will address compensation for the surrogate. The intended parent(s) will compensate the surrogate for her time commitment, and cannot be the sole financial source for the surrogate. Surrogate compensation includes the costs of medical care, in vitro fertilization procedures, childcare, maternity clothes and any prenatal or postnatal classes the surrogate wants to attend. The surrogate will also be compensated for taking time off from work and her ability to plan for her future.
One of the most discussed provisions of a surrogacy agreement is the intent of each party and who will be the legal parents of the child. It is imperative that the intended parent(s) and surrogate discuss what they want the agreement to address. Many intended parents agree that they want to be the legal parent under the law. They will pay the surrogate for her responsible expenses and medical costs as set forth in the surrogacy agreement. In exchange, the surrogate will relinquish her parental rights as the legal and biological parent of the unborn child. She will be "made" the child’s parent by an order of the court, once the surrogate gives birth.
Following delivery, the surrogate will sign documents which will terminate her parental rights for the child. She will also execute a waiver of waiting period for the establishment of paternity or maternity of the child. If she decides to move forward with establishing her parental rights over the child, it will establish a new parent-child relationship with the child. A judge will determine which parent has parenting time or residential custody and give the child a name.
The surrogacy agreement can be a very emotional phase for all parties. Each party is going through the surrogacy process for different reasons and will have certain expectations and wishes. A neutral trusted party or third person can assist the parties with suggestions and advice.

Common Issues with Surrogacy Agreements

Common challenges in drafting surrogacy agreement can include:

1) Uncertainties around Compensation

The surrogate often expect to be compensated for the time and effort she expends in carrying and caring for the child during the pregnancy. But the expectations in this regard should be reasonably within the parties’ mutual understanding.

2) Contingency for Severe or Catastrophic Outcomes

The risks and potential concerns with surrogacy are not just about having a healthy and beautiful baby. There are instances when the surrogate may have to endure an unfortunate outcome or tragedy like infertility, still birth, or even death. Caring for both the surrogate and her family, in these circumstances, is of utmost importance .

3) Liquidated Damages Provisions in case of Abortions or Miscarriages

It is preferable that the surrogacy agreement includes specific provisions that a surrogate mother will not abort or miscarry the fetus in exchange for payment, or will be required to pay liquidated damages if she does.

4) Complications with Third Party or Substitute Carrier

A surrogate may have to pay additional legal fees if she switches surrogacy services to another surrogate or third party carrier in an event she is unable to complete her contract. If this were to happen, a competent attorney can draft a provision that permits the surrogate to pay for her expenses.

The Use of Attorneys in the Surrogacy Process

The legal framework around surrogacy contracts in Georgia can be complex and difficult to navigate. The involvement of legal professionals in the drafting and review of the surrogacy contract is incredibly important in ensuring that the contract conforms to the law and protects the rights of all parties. Counsel experienced in this particular area of law knows the parameters of applicable Georgia laws.
Furthermore, it is crucial that the gestational surrogate is provided with independent legal counsel throughout the process. This ensures that there are no conflicts of interest between the surrogate and intended parents, and that the surrogate fully understands what she is agreeing to. You cannot have a contractual agreement that does not follow all of the laws and formalities of the state. Issues can arise if the surrogacy contract is governed under the laws of a different state, so it is always important to check the statutes where the surrogacy contract will be fully performed. This includes where the surrogate will carry the baby as well as where the baby will be born.
There are certain protections afforded to gestational surrogacy in Georgia. In Chapter 9 of the Georgia’s Uniform Parentage Act, the law provides that all surrogacy procedures must be performed in accordance with the contract. Georgia’s law also provides how to determine who will be the legal parents of the child born by a surrogate and the procedure for removing the surrogate and her spouse, if any, from parental status in Georgia. Georgia state law also provides that an intended mother may pursue a child support judgment against the intended father.

Case Studies: Surrogacy Agreements and the Law

In a high-profile California case (Brooke S. v. Superior Court), a couple who acted as intended parents for their own surrogate, stopped working with the gestational surrogate before the end of the pregnancy. The gestational surrogate terminated her pregnancy because the intended parents were trying to terminate the surrogacy. The surrogate sued the intended parents for emotional distress. Upon review, the appellate court ruled that the relationship between the parties was contractual and not tortious. As to the emotional distress claim, the court held that the surrogate’s complaint indicated no physical injury, nor did it allege any conduct by the intended parents that was extreme and outrageous. Further, the complaint did not allege that surrogate was a "closely related party."
In another, less-publicized California case (In Re Marriage of Buzzanca), the couple "separated" at the time of their first IVF procedure while still married. The surrogate underwent her first IVF procedure with embryos created during the couple’s marriage. They then reconciled , but later separated and divorced. At issue for the post-divorce couple was whether the sperm donor was the legal father of the twins they shared with their surrogate. The court ruled that for California law, which deemed the surrogate’s husband to be the legal father, the husband was the legal father of the parties’ children. It should be noted that after In Re Marriage of Buzzanca, a California appellate court issued an opinion that offered some guidance on the enforceability of surrogacy agreement provisions. (In Re Marriage of Moschetta). The court also ruled that in the absence of a properly executed gestational surrogacy agreement, pursuant to California Family Code section 7962, the law presumed that the wife of a man who consented to artificial insemination with donor sperm was "the mother" of the resulting children. Thus, the woman was entitled to be the legal mother of her former husband’s children conceived through surrogacy.