Common Contract Issues

Questions and Issues to Consider

in a Surrogacy Contract

• All Parties have the right to independent legal representation.
• All Parties need to agree to psychological and sexually transmitted disease testing.
• Agree to the number of embryos to be transferred and the number of attempts at IVF.
• Agree to help in whatever manner necessary to get the Intended Parent's names on the birth certificate.
• Agree to HLA Paternity Testing if, when necessary
• Agree to drug testing and criminal background checks if requested by the IP's, IVF Clinic or Agency.
• Surrogate must agree to notify Intended Parents at the first signs of labor.  All contact numbers should be listed in the contract.
• All parties must waive the right to medical confidentiality and execute the appropriate medical releases.
• The Surrogate must agree to adhere to all medical instructions given to her by the attending physicians.
• Amniocentesis should be agreed to as well as under what circumstances it may be requested.
• Fetus loss must be addressed.  Selective reduction, miscarriage and abortion must be referenced with an agreed upon medical management plan.
• The custody of a child that isn't genetically linked to the parties needs to be addressed.
• IP's must agree to accept responsibility for a child born with birth defects.
• Compensation for living expenses (base fee) must be addressed.  The total fee should be deposited into a trust/escrow account before the transfer is performed.
• Term life insurance policy of at least $300,000 must be provided to the Surrogate by the IP's.
• There must be an estate plan or guardianship in place to provide for the infant should an IP die after pregnancy is confirmed. 
• There must be an estate plan or medical guardianship in place to maintain the Surrogate on life support should she suffer trauma and determined to be brain dead after pregnancy is confirmed.  The OB will provide guidelines on when to order life support for purposes of maintaining a pregnancy.
• The Parties should agree on what is expected during the labor and delivery.  Generally, IP's are permitted to attend delivery.  Additionally, discuss post delivery, in-hospital contact with the baby/ies.
• The amount of post discharge contact, including photographs, needs to be agreed upon.