A surrogacy contract is a complex legal agreement written to protect the rights of both the intended parents and the surrogate. Unsurprisingly, intended parents are often very concerned with the nature of their contract with a surrogate, and may worry about a wide range of potential problems, including whether the surrogate could decide to keep the baby.
The goal of a surrogacy contract is to prevent any such problems from occurring. While there was a high-profile case in the 1980s where a New York surrogate did try to keep a baby known to the courts as Baby M, the surrogacy in question was not arranged by a commercial surrogacy agency and lacked the carefully worded and legally binding contracts used today. If your surrogacy contract is well written, everyone’s rights are protected. (On a related note, the Baby M case also did not benefit from the careful screening of surrogates used by agencies such as Premium Surrogacy).
Where is surrogacy legal?
In the USA, commercial surrogacy is legal in all states except for Nebraska, Louisiana, and Michigan. This does not, however, mean surrogacy laws are consistent across the other 47 states. With no federal laws governing surrogacy, each state has written its own laws and regulations. As a result, the wording of a surrogacy contract in California will be different from a similar contract written in accordance with Texas state law.
This means it’s important local laws are kept in mind when choosing both a surrogate and deciding where to carry out the surrogacy process. To facilitate this, Premium Surrogacy only operates in states where surrogacy is legal. Likewise, all screened surrogates in our program must live in states where surrogacy is permitted by law.
What should be included in a surrogacy contract?
A surrogacy contract is a long and involved legal document. The contract includes a wide range of legal protections, contingencies, and assurances for both the surrogates and intended parent/s, as well as protecting the well-being of the baby before and after birth.
Drafting a legal contract for surrogate services requires input from the intended parents, the surrogate, and their respective legal representatives. Without being an exhaustive list, below are some examples of what should be included in a surrogacy contract:
- Governing Law Provisions: As noted above, it’s important to be clear on which state’s law covers the surrogacy agreement and where, if necessary, any court action would take place. This becomes especially complicated if the intended parents are not from the United States, as they must also consider the legality of surrogacy in their home country.
- Conception Details: The contract should detail all aspects of conception, including whose gametes are used, how many embryos will be transferred per attempt, how many attempts will be made to implant embryos, whether the embryos used are fresh or frozen, any genetic screenings, and similar details.
- Parental Rights and Custody: It is exceptionally important that any contract with a surrogate mother discuss the legal parentage of the child. This includes ensuring the intended parents are established as the legal parents and relieves the surrogate (and her spouse, if applicable) of all rights and responsibilities concerning the child. The contract will also ensure the intended parents have immediate custody of the child upon birth.
- Death and Disability of the Intended Parents: To protect the child’s future, a surrogacy contract provides a contingency plan should the intended parents die or be severely disabled before the agreement is concluded. Intended parents must provide proof their estate planning is in order. This includes naming guardians for the child, and trustees to ensure that the surrogacy agreement is completed and all surrogacy costs and obligations met.
- Divorce, Separation, and Marriage: The contract must address what happens should any of the involved parties divorce, separate, or marry before the completion of the agreement. To avoid potential problems, surrogacy contracts often restrict both the intended parents and the surrogate from taking any of these actions until after the birth.
- Health Insurance Details: The intended parents are responsible for obtaining health insurance for their child, and typically pay for any insurance deductibles, co-payments, or uncovered medical costs related to pregnancy and delivery. The surrogate must have her own health insurance policy reviewed before the contract is written to make sure the policy does not exclude her from surrogacy.
- Payment Details: Differing state laws dictate what amounts can be paid to surrogates and in what manner. The contract will include details on the amount paid, methods of payment, and timing of payments.
- Miscarriage, Stillbirth, and Similar Events: No pregnancy is without risk. The contract will specify what happens in the event of a miscarriage or consensual abortion, and whether another pregnancy attempt would be made (this decision is typically at the discretion of the surrogate). In the tragic event that the child dies at birth or shortly thereafter, custody of the remains is usually given to the intended parents who would make burial or funeral arrangements. While this is the most upsetting part of a surrogacy contract, such details provide everyone with guidance should the worst happen.
- Birth Certificate: The child’s name will be included in the contract, along with instructions for the hospital for how the intended parent’s names will be listed on the birth certificate.
Bottom line: Can a surrogate keep the baby?
The short answer is no. A surrogate contract protects the surrogate’s rights but also makes it clear the surrogate has surrendered all rights to the child. To further prevent such conflicts, Premium Surrogacy pre-screens all surrogates carefully, employing psychological as well as physical screening to further decrease the risk of a surrogate trying to claim ownership of a child.
Entering into a surrogacy agreement is a complex decision. To help prepare yourself for the process, be sure to read more at the Premium Surrogacy blog, and our Surrogacy FAQs. If you have questions, feel free to contact us. We’ll provide you with the facts you need to make the right decision for your family.