Surrogate Agreement Template: Elements and Advantages
What’s a Surrogate Agreement?
A surrogate agreement is a contract between the surrogate and the person or couple who will become the legal parents of the child. This agreement lays out a clear understanding of the rights, responsibilities, and expectations of the surrogate before, during, and after the surrogacy process. This document is meant to make explicit some of the auxiliary agreements that are implied in a surrogacy arrangement.
The surrogate agreement is typically drafted by a family lawyer specializing in assisted reproductive technology (ART). These lawyers understand the unique processes involved in surrogacy agreements and will provide the surrogate with effective counsel prior to signing the agreement to ensure that the surrogate understands her rights and obligations. The surrogate will be required to obtain independent legal representation to review and understand the surrogacy contract.
In addition to being an important tool for the surrogate , the surrogate agreement can provide a method for the intended parents to obtain a pre-birth order, which can lay the groundwork for the intended parents to appear as the legal parents of the child on the birth certificate. However, some states may have a legally-required waiting period within which a surrogate cannot sign a surrogacy contract. Therefore, both intended parents and the surrogate should obtain proper legal counsel prior to the execution of the surrogate contract.
Important Aspects of a Surrogate Agreement Template
A well-crafted surrogate agreement template provides a framework for the surrogacy arrangement, offering guidance for all parties involved. Typically, a surrogate agreement template contains the following key components:
Roles and Responsibilities of the Parties
The surrogate agreement should clearly define the roles and responsibilities of each party. This includes obligations to provide medical updates, attend medical appointments, and comply with the intended parents’ requests as much as reasonably possible. Defining these items in advance can help avoid any confusion later on in the process.
Compensation for the Surrogate
It is necessary to address how you will compensate the surrogate for her services. This often includes medical expenses, in vitro fertilization costs, and maternity-related necessities. Compensation amounts will vary depending on the individual circumstances, but the agreement template should clearly specify how, when, and what will be paid to the surrogate.
Medical Procedures and Rights
A surrogate agreement template should address which medical procedures will take place and where. The template should also specify if the surrogate has the right to select her own care providers (i.e., an OB/GYN, etc.), and whether or not she will be required to move closer to the intended parents.
Legal Aspects of a Surrogate Agreement
In addition to the personal considerations, there are a number of legal restrictions and requirements that must be addressed in a surrogate agreement. It is important to note that the surrogate agreement provisions may vary from one state to another and from one country to another, depending on where the surrogate is located, as well as the location of the Intended Parent(s).
While it is not required for all surrogacy arrangements, having legal counsel draft and/or review a surrogate agreement is critical – both by the Intended Parent(s) and by the surrogate. The surrogate should be counseled on the terms of the agreement, and the regulations that are controlling. Before executing the surrogate agreement, a legal review by counsel makes sure that the surrogate understands her rights and responsibilities arising out of the agreement.
Why Create a Surrogate Agreement Template
Surrogate agreement templates can be helpful for ensuring that you cover all of the most essential surrogacy agreement terms in your contract with a surrogate. A surrogate agreement template may also save you time when it comes to drafting a contract or simply help lead you through the process. Typically, a surrogate agreement template will provide you the basic framework of a surrogacy contract and allow you to enter in the surrogate’s specific terms. In this way, a surrogate agreement template is quite beneficial because it gives you the ability to create a personalized contract, without having to start from scratch.
Editing a Surrogate Agreement Template
The process of customizing a surrogate agreement template starts with an understanding of the requirements imposed by the intended parents’ state. Some states, such as California and Illinois, have specific requirements for a valid surrogate agreement. Additionally, intended parents who are married in any form (same sex or otherwise) may also need to have additional provisions that grant their spouse parental rights. These intentions should be clear from the time that you begin to draft your surrogacy agreement. Next, you need to ensure that your surrogate agreement template includes all necessary provisions that protect the legal rights of both the intended parents and the surrogate . This may include provisions imposing responsibility for medical costs on the intended parents, life and disability insurance language, tasks that will be assigned to surrogate (such as nursery preparation, announcements and photo sessions), travel restrictions, parental rights and custody agreements, etc. It is important to also check that the surrogate agreement template conforms to the surrogacy laws in your state and the home state of your surrogate, and review all issues that are included in the surrogate agreement template with your surrogacy attorney. Finally, you need to ensure that your surrogate agreement template is worded in a way that enhances readability. Your surrogate agreement template should ideally use short sentences and avoid over-complicated legal language. It may also be beneficial if your surrogate agreement template is organized by level of importance or in alphabetical order.
Typical Pitfalls of Surrogate Agreements
One of the most common issues that can arise with a surrogacy agreement is a lack of understanding as to the intent of its clauses. Too often potential parents or other parties to a surrogate agreement rush to sign a contract without fully understanding all of its implications. Clinic staff often see a variety of creative but inappropriate clauses in contracts that were included to make a previous deal work. It is critical that both the surrogate and the intended parents take the time to thoroughly review the contract as soon as it is received and ask questions. Clear communication between the two parties and their attorneys can minimize the potential for misinformation and misunderstandings.
The surrogate may feel uncomfortable asking questions of the intended parents if she feels it is her job to carry the baby to term and not interfere with the process. Alternatively, the intended parents may be concerned that questions from the surrogate will be viewed as overly controlling or intrusive or may feel uncomfortable discussing certain aspects of the pregnancy. A contract should clearly define the level of contact to be expected during the pregnancy. For example, should the surrogate be required to notify at the first sign of contractions? Should she be required to obtain approval from the parents for any medications such as prenatal vitamins?
Problems may also arise if the parties do not clarify the type of birth to be expected. For example, some surrogate agreements outline specific birth plans, including whether the intended parents will be present in the delivery room and who will have contact with the baby immediately after birth. Vagueness or lack of specificity about the obligations of each party may leave each assuming a different obligation. Parents should also be prepared for the fact that their wishes regarding the hospital stay are not binding on the surrogacy clinic or hospital staff, and the level of input they can expect to receive may vary by state and by hospital.
And, above all, both parties should avoid any use of vague language in a surrogate agreement, since this will open the door to all types of interpretation. When working with a surrogate contract, terms should be explicitly defined and examples should be given when describing future scenarios or specific actions. A contract devoid of ambiguity allows for less creative interpretations down the road.
Where to Find the Perfect Surrogate Agreement Template
When searching for a surrogate agreement template, it is important to find one that is both comprehensive and compliant with applicable state laws. Surrogacy laws vary among the United States, with some states favoring contract enforcement and others favoring post-birth adjudication based on the best interests of the child. There are many online template resources that claim to provide adequate surrogate contract templates, but not all are so rigorous. These templates can be a good way to get an idea of what provisions to include in your own contract, but they are not a substitute for legal advice. It’s important to locate an experienced and qualified attorney when entering into a surrogacy agreement template.
A proper surrogacy agreement template will contain various provisions that cover such issues as compensation, medical protocols, disclosure, indemnification, and miscellaneous provisions . Since each situation is unique, it’s advisable to customize your template contract to the individual needs of the family.
While many people go into surrogacy with an optimistic attitude, the harsh reality of surrogacy contracts is that they should be drafted with an eye toward the worst-case scenario. Specific language in your surrogacy contract can help avoid future disputes by clearly delineating the parties’ rights and responsibilities. For example, if the surrogate decides to keep the child after birth, an enforceable contract that clearly expresses the transfer of parental rights from surrogate parent(s) to intended parent(s) will greatly help to avoid further litigation.
By using a suitable surrogate agreement template and working with an experienced attorney to draft a customized contract, you can avoid problems associated with the surrogacy agreement.