Parents-to-Be Via Surrogacy
Having children and starting a family is an exciting time. This excitement can be dampened if a couple who wants to have children is, for whatever reason, unable to conceive naturally. Surrogacy is a method of reproduction where a woman agrees to carry a child for intended parents who may not be able to conceive.
There are two types of surrogacy, traditional surrogacy and gestational surrogacy. Traditional surrogacy involves natural or artificial insemination of the surrogate, in which case the resulting child would be genetically related to the surrogate. Gestational surrogacy is when an embryo is implanted into the surrogate. With gestational surrogacy, the intended parents may use their own eggs and sperm and/or donated eggs and sperm, which would determine whether or not the child was genetically related to the intended parents. Surrogacy laws can be extremely complicated; therefore, when intended parents decide to have a child via surrogate, it is important to have an agreement in place to protect the interests of everyone involved.
What is a Surrogacy Agreement?A surrogacy agreement is a contract established between the intended parents and the surrogate. With surrogacy agreements, there is an important distinction between traditional surrogacy and gestational surrogacy. In some jurisdictions, if a gestational surrogate is used—meaning the surrogate mother is not genetically related to the child—the intended couple can get a court order declaring them as the legal parents of the child, and ordering the hospital to name the intended parents on the birth certificate. A pre-birth court order is not possible using a traditional surrogate; however, the surrogacy agreement can layout in writing that the surrogate mother will give up parental and custody rights to the child following the birth. Also, following the birth, the intended parents will have to adopt the newborn child.
The surrogacy agreement should be a collaborative effort, with each party and their respective attorneys working together to prepare the agreement and reflect the parties’ wishes. Generally, the intended parents work with their attorney to draft the initial contract, and the surrogate will work with her attorney to ensure her requests and interests are represented. The agreement will be negotiated until the parties are satisfied with the terms included. The surrogacy agreement should be executed by all parties prior to the initiation of any medical procedures.
What Should Be Included in a Surrogacy Agreement?Every surrogacy contract will look somewhat different based on jurisdiction’s surrogacy laws, and the needs, interests, and circumstances of the parties. Generally, surrogacy agreements should cover some similar elements. Finances play a major role in most surrogacy agreements, even if the surrogate mother decides she does not want to be compensated. The parties should discuss and come to an agreement on how the surrogate should be compensated—financially or otherwise. These provisions must be crafted carefully because most states have laws making it a crime to pay or accept money, or anything of value, in exchange for a parent surrendering their parental rights to a child. Many surrogacy agreements, however, have provisions arranging for compensation to the surrogate for invasive medical procedures, carrying multiple children, and/or being assigned to bedrest. A surrogate may also be compensated for housing expenses, clothing expenses, reduced earning capacity, food allowance, and other specific items. It is important to delineate in the surrogacy agreement what the surrogate is being compensated for.
The agreement should also outline the risks and liability associated with the pregnancy, and account for the surrogate’s health and her responsibility to take care of herself and the baby throughout her pregnancy. Consideration should also be given to terms relating to health insurance, life insurance, who will be present at prenatal appointments, and the amount of privacy that the surrogate is entitled to during the pregnancy and birth. Another important issue for the parties to discuss and come to an agreement on is selective reduction and termination, if that should become necessary. Selective reduction is when the number of fetuses growing within a woman’s uterus is reduced in order to increase the likelihood of the birth of healthy babies. Selective reduction terminates the lives of the embryos which are removed from the uterus.
It is important for the intended parents and surrogate to each have their own attorneys to negotiate the surrogacy agreement. The attorneys will act as each party’s ally, representing their client’s interests and ensuring the final contract is appropriate. While this legal process may seem daunting, it is makes sense to work with an experienced attorney to create a strong legal surrogacy contract. Find an experienced family lawyer or surrogacy lawyer by quickly posting a short summary of your legal needs on Legal Services Link, and let the perfect lawyer come to you!
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