Want to do something amazing on a Saturday afternoon? How about drafting a 20+ page contract for your significant other, your lawyer, your surrogate, and her significant other to all agree on? No problem right …
If you have ever signed any important document before, then you know about the seemingly endless dribble that is in them. All the “All parties involved in this agreement intend to fully uphold all specified arrangements contained herein” type wording. This is better known as the language of legalese which has the uncanny ability of making you thoroughly confused after only reading the first half of every sentence. So, how are us non-legal folks supposed to navigate these judicially-infested waters? Find your lawyer. There are many lawyers that specialize in adoption law and if they don’t also participate in surrogacy contracting, they will be able to point you in the right direction. Check this site out for a great starting point to find a lawyer. Once you do this, meet with them and talk about where you are in your arrangements with your surrogate. By now, you should have discussed what the surrogacy fee is going to be and if there are any show-stoppers, such as what you would do regarding selective reduction. By going in there with the tip of your surrogacy contract iceberg already figured out, your lawyer will be able to help you frame your agreement. Then, they will likely ask you about a bajillion questions that you never thought. Most likely, you will need to go back and discuss several things with your surrogate so don’t be discouraged if you didn’t go into your lawyer’s office with your contract guns blazin’ like you thought you did. When we were doing our contract write-up, we had to go back to our surrogate twice. Your lawyer will probably have some kind of boiler-plate contract that they will work from and incorporate all of the specifics for your arrangement. Make sure that you review the contract with a fine-toothed comb so that there aren’t any unintended items in there and that all of your requirements are included. ASK QUESTIONS on anything and everything you may not be 115% clear on.
Uhm, yes, you in the back … you had a question. “SO, what should be in the contract?” Ahh, that is a great question that has a huge answer. I won’t dig all the way to the bottom of the possibilities but we can review some of the biggies.
First, you need to have it explicitly stated how you are intending to pursue this pregnancy through your surrogate. Let’s start with the gestational carrier case first since it is a little easier. You will be transferring your fertilized embryos into your surrogate but how many attempts have you agreed upon? One, two, seventy? Over what time frame are you willing to pursue this, 6 months, 5 years? How many embryos have you agreed upon transferring keeping in mind that the possibility of multiples goes up massively as you transfer more embryos. Lots to discuss with your surro before you put electronic pen to electronic paper on this one. For a traditional surrogate (your DH’s sperm and her follicle) will you be doing intra-uterine-insemination (IUI), in-vitro fertilization (IVF), both? Same questions as before, how many attempts, how long, how much to transfer? Tiring right! And this is just the first big topic.
First, you need to have it explicitly stated how you are intending to pursue this pregnancy through your surrogate. Let’s start with the gestational carrier case first since it is a little easier. You will be transferring your fertilized embryos into your surrogate but how many attempts have you agreed upon? One, two, seventy? Over what time frame are you willing to pursue this, 6 months, 5 years? How many embryos have you agreed upon transferring keeping in mind that the possibility of multiples goes up massively as you transfer more embryos. Lots to discuss with your surro before you put electronic pen to electronic paper on this one. For a traditional surrogate (your DH’s sperm and her follicle) will you be doing intra-uterine-insemination (IUI), in-vitro fertilization (IVF), both? Same questions as before, how many attempts, how long, how much to transfer? Tiring right! And this is just the first big topic.
Next, what will the surrogacy fee be? Specifically, what are you going to pay your surrogate to carry your child(ren)? Did you agree upon $100K, $30K, $10K? Obviously, if your surrogate is doing this pro bono (i.e., no cost) this topic is a bit easier. But I don’t think that path is very common unless it is a close relative. So, once you have decided upon the amount, how will the payments be broken up? Most of the time it is not a one-time payment. Often, it is split by trimester or months, or events such as positive pregnancy test, birth, whatever. Just make sure that the schedule is something that both you and your surrogate are comfortable with. Finally, what about multiples? Is there an additional cost for twins, triplets, etc.
Those are probably the two biggest topics for the surrogacy contract. Then, there is a cacophony of other stipulations that can, and should be included in the contract. Remember, this contract is meant to protect all parties involved and the more that is in there means the more that you have discussed means the lower the chances of uncomfortable surprises during the pregnancy. Some easy examples of this include: reimbursing the surrogate for lost time at work due to doctors’ appointments and bed rest, arrangements to cover medical bills, health insurance, drinking alcohol and smoking, doing drugs, and planned hospital for delivery. Some less common examples are: covering child-care costs for the surrogate’s children while she is at the doctor’s office or on bed rest, extra agreements for maternity clothes, and life insurance. This last one hit us out of left field but it made sense. Your surrogate is putting her health at risk to help you start a family. Many “intended parents” a.k.a. us, buy term life insurance policies for the surrogate with the surrogate’s family as the benefactors. Often, they retain the policy for years after the baby is born as a lasting thank you. Kind of morbid, but it is a very nice gesture nonetheless.
The tough part: discussion of early termination and miscarriage. Alright folks, this one is tough but necessary and is possibly one that can have some strong, hopefully not different, opinions between the parties involved. What will you do if the developing fetus is diagnosed with a severe handicap? What if it is twins and in order for one to survive, you need to undergo selective reduction? What if the developing pregnancy severely compromises the health of the surrogate? This is likely going to be an awkward and difficult discussion to have with your surrogate, but it is SO necessary. Get all of your thoughts and fears out there and make sure that everyone goes into this knowing what the path forward will be if faced with these highly emotional and tumultuous decisions. It will be easier to think rationally now than it will in the moment.
Eccentric things. Since you and your surrogate are entering into an agreement, so long as your surrogate agrees to it, you can put whatever you want in this contract. You can stipulate that your surrogate is only to wear red socks, cannot eat sour cream and onion potato chips, and has to listen to your favorite Vanilla Ice album every night before she goes to bed. So long as she agrees to it, you are golden. My advice though, pick your battles. Go for things that you feel strongly about. For example, we have caffeinated beverages limited in our contract. We don’t have a required volume of weekly pineapple core consumption in there. There are plenty of ways to incorporate some of your more non-traditional thoughts or wishes for your surrogate other than clogging your contract with them. Bring dinner by and secretly sprinkle whatever weird pixy juice in there that you think will help the pregnancy. OK, maybe don’t sneak things in her food, but you get the idea. Talk to your surrogate and maybe there are some things that you can agree on that don’t need to be in the contract. By all means though, if it is very important to you, put it in. Once agreed upon, it is much more difficult to make changes to the contract.
Of course, there are plenty of other things to consider and include in your surrogacy contract and many of them will come to light in your specific case if you start and maintain an open line of communication with your surrogate. One last point, the “true” legality of your surrogacy contract varies from state to state. Check this site for the details on that since it varies widely. Surrogacy law is also wildly different in different countries so for our international peeps out there, here is a start to that.
Just as we have done for the other posts focused on surrogacy, we have attached a checklist for your surrogacy contract. Of course it is not an exhaustive list, but should be a great start. Good luck in the land of legalese!
Just as we have done for the other posts focused on surrogacy, we have attached a checklist for your surrogacy contract. Of course it is not an exhaustive list, but should be a great start. Good luck in the land of legalese!
Are you guys doing a kickstarter or anything to help with funds? I would love to help and I’m sure other people would too!
Hey Kylie, thank you for the question and the incredibly generous offer. We have been fundraising for a while and have a lot of ways that folks can contribute to our surro funds on our fundraising tab at the top. Another way to help is to buy stuff on Amazon using our link at the top right of the page. For every purchase, we get a small percentage of the cost. It’s a win win! The beauty that we have seen in so many people we have never met overwhelms us to this day and we have every intention of letting our little one(ones) know about the “village” that helped introduce them into the world.
Great post! Been reading a lot about different surrogacy situations recently. Thanks for the info- love the blog!