Drafting a surrogacy contract is tricky business, and only experienced attorneys should attempt such a task. Your attorney needs your input, however, in drafting an agreement that reflects your wishes. Following is a checklist of items to help you think about what terms you want to include in your surrogacy agreement, whether you are the surrogate or the couple using the services of a surrogate. It is important to note that the couple and the surrogate need separate and independent counsel to ensure that their best interests are protected, and to avoid a potential conflict of interest.
| ____ | Date of the agreement |
| ____ | Names of the parties, including both prospective parents (hereinafter called father and mother) and the surrogate |
| ____ | Statement that all parties are over the age of eighteen |
| ____ | Statement that the mother is unable to sustain a pregnancy |
| ____ | Agreement by the surrogate to submit to requested physical and psychological exams |
| ____ | Details of the surrogate's health insurance coverage, and her agreement to keep existing coverage in full force and effect |
| ____ | Agreement of the father, mother, and surrogate to the assisted reproductive technology procedures involved and placement of fertilized embryo(s) in the uterus of the surrogate |
| ____ | Agreement as to the maximum number of attempts to achieve a pregnancy |
| ____ | Agreement that the surrogate will not engage in intercourse during the attempts to achieve a pregnancy |
| ____ | Agreement that the surrogate will not terminate the pregnancy unless her own life is at risk |
| ____ | Agreement by the surrogate to refrain from smoking, drinking, and using illicit drugs during the pregnancy |
| ____ | Agreement that the surrogate will obtain regular prenatal medical care, with/without the father/mother in attendance |
| ____ | Agreement that surrogate will submit to any medical testing requested by the father and mother |
| ____ | Agreement regarding the diet of the surrogate during the pregnancy |
| ____ | Agreement regarding any restrictions on activities of the surrogate during the pregnancy |
| ____ | Agreement that the father and mother will/will not be present for the birth of the child |
| ____ | Agreement that the surrogate and her husband, if any, will have no claim to physical or legal custody of the child born as a result of the surrogacy |
| ____ | Agreement by the surrogate to the termination of her parental rights upon the birth of the child |
| ____ | Agreement that it is in the child's best interests that s/he be raised by the father and mother |
| ____ | Agreement that custody of the child will be relinquished to the father and mother as soon as possible after birth |
| ____ | Agreement regarding the financial terms of the arrangement (including reimbursement or payment for uninsured pregnancy-related medical expenses, payment for psychological counseling, payment for maternity wear, payment for lodging and other living expenses if the surrogate relocates to be near the mother and father, payment of travel expenses, etc.) |
| ____ | Agreement as to compensation should the pregnancy not proceed to term |
| ____ | Confidentiality agreement |
| ____ | Governing law |
| ____ | Statement that the contract constitutes entire agreement |
| ____ | Severability clause |
| ____ | Signatures |
With So Much at Stake, Get Legal Help With Your Surrogacy Matter
For couples that struggle with infertility or other issues related to pregnancy, surrogacy offers the hope of parenthood. However, as with most arrangements in society, especially ones with such far-reaching implications, it's important for everyone to understand their legal and contractual obligations before moving forward. Because so much can be at stake with a surrogacy contract, it's imperative to speak with an experienced family law attorney before signing the dotted line.
