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12 Important Provisions in a Surrogacy Contract

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The provisions in a surrogacy contract should outline the rights, responsibilities and expectations of all parties involved in the surrogacy arrangement. While the specific terms may vary depending on the state law and preferences of the surrogate and intended parents, here are 12 important  provisions in a surrogacy contract that your contract should include:

  1. Compensation and Expenses: The contract should specify the amount and structure of compensation and reimbursements that the intended parents will provide to the gestational surrogate. This may include base compensation, medical expenses, maternity clothing, travel expenses, and other related costs.
  2. Medical Procedures and Health Insurance: The contract should outline the specific medical procedures involved in the surrogacy process, including in vitro fertilization (IVF) and embryo transfer. It should also address health insurance coverage for the gestational surrogate and any potential complications.
  3. Legal Rights and Responsibilities: The contract should define the legal rights and responsibilities of the intended parents, the gestational surrogate, and any other parties involved. This may include issues related to decision-making during pregnancy, the right to terminate the pregnancy, and the intended parents’ rights to legal parentage of the child.
  4. Confidentiality and Privacy: The contract may include provisions regarding the confidentiality and privacy of all parties involved. This may include agreements not to disclose personal information or the identity of the individuals involved, except as required by law.
  5. Communication: The contract may include the frequency and mode of communication; medical updates; emergency situations; boundaries and respect; communication with third parties.
  6. Termination or Cancellation: The contract should address the circumstances under which the surrogacy arrangement can be terminated or canceled, such as in cases of medical complications, breach of contract, or mutual agreement between the parties.
  7. Legal and Counseling Services: The contract may require all parties to obtain independent legal counsel and counseling services to ensure that they fully understand the implications and legal aspects of the surrogacy arrangement.
  8. Parental Rights and Consent: The contract should include provisions regarding the intended parents’ rights to legal parentage and the process for obtaining parental rights, such as pre-birth orders, post-birth adoptions, or other legal procedures.
  9. Travel Restrictions: The contract may specify any travel restrictions or requirements imposed on the gestational surrogate during the surrogacy process. This can include limitations on long-distance travel, especially during specific stages of the pregnancy, such as during the first trimester or close to the due date. The purpose of these restrictions is to ensure the well-being of the surrogate and the unborn child, as well as to minimize potential complications or risks associated with travel. For more information, on travel restrictions, see our post on travel restrictions as a surrogate.
    • Notification: The gestational surrogate may be required to provide timely notification to the intended parents or the medical team if there is a need for travel due to exceptional circumstances, such as a family emergency or medical appointment.
    • Approval Process: The contract may outline a process for obtaining approval for any necessary travel, including the submission of a travel request to the intended parents or the medical professionals overseeing the surrogacy arrangement.
    • Health and Safety: The contract may include provisions regarding the gestational surrogate’s obligation to prioritize her health and safety during travel, including following any medical recommendations or guidelines provided by the medical professionals involved in the surrogacy process.
  10. Reimbursements and Travel Expenses: The agreement should clarify who will be responsible for covering the costs associated with travel, including transportation, accommodation, and other related expenses. It may specify whether the intended parents will reimburse the gestational surrogate for any approved travel expenses or if they will directly arrange and pay for travel arrangements.
  11. Escrow Arrangements: All monies that are known to be due under the contract should be placed in an escrow account prior to the surrogate starting her medications.  This provides protection for the surrogate and the intended parents to ensure that costs and expenses associated with the arrangement are protected and secured.  The amount placed in escrow will vary but should cover the following expenses and costs (as applicable): base compensation; health insurance premiums and deductible (if applicable);estimated lost wages;  monthly non-accountable miscellaneous fee; start of medications fee; transfer fee; c-section fee (if applicable).
  12. Dispute Resolution: The contract may outline a process for resolving disputes or disagreements that may arise during the surrogacy journey. This may include mediation or arbitration clauses.

Gestational surrogacy contracts are complex legal documents.   Specific terms and provisions may vary depending on the laws and regulations of the jurisdiction where the surrogacy arrangement takes place. Consulting with a reproductive law attorney or legal professional experienced in surrogacy is crucial to ensure that all necessary terms are included.  Compliance with the legal landscape of the state for which the contract is being written is critical.   In all instances, make sure that these 12 important terms and provisions in a surrogacy contract are in your surrogacy contract.

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