Surrogacy, Part 3: Contracts

As we discussed in Part 2 of our series, North Carolina doesn’t have statutes or case law protecting surrogates and intended parents, so the best way to protect yourself, no matter your role in the process, is to have an ironclad surrogacy contract. A surrogacy contract should be reviewed by independent legal counsel for both parties and signed prior to any medical procedures. No matter how sure the parties may feel at the time, the contract should be carefully considered by the parties and reviewed by attorneys.

The first step in creating a good surrogacy contract occurs long before anyone ever puts pen to paper. The surrogate and the intended parents must make sure that they are fit to go through the surrogacy process. Psychological evaluations ensure that 1) a surrogate is capable of going through with the pregnancy and then surrendering the child to the intended parents and that 2) the intended parents are ready to take on a child born by a surrogate and to love and raise that child as their own. Medical evaluations need to be completed to make sure the surrogate is likely to carry a child successfully to term and the intended parents are healthy enough to raise a child for the next eighteen years.

Surrogates and intended parents should meet and talk. You are going to be spending a lot of time together and trusting each other with either the carrying or raising of a child, so it is important to make sure that everyone feels comfortable with each other and agree on the key issues that might arise.

Once everyone is cleared and comfortable, you can move onto the actual contract. Both parties need separate legal counsel to make sure their interests are protected. A surrogacy contract needs to include the surrogate, her husband if she has one, and the intended parents, and specify exactly which of the parties are intended to be the legal parents of the child. The medical procedures and risks involved need to be laid out, including how many rounds of IVF will be attempted, the risks of pregnancy, any behavioral restrictions that the surrogate must follow, and birthing procedures.

Financial issues must also be specifically laid out, including base compensation, reimbursement of expenses, and medical and life insurance issues. Contract drafting will also bring up important, controversial issues that may have to be handled and will encourage conversation around these difficult topics. All parties must be on the same page regarding termination of the pregnancy in different situations and the selective reduction of multiples. If the parties can’t agree on these terms, it is usually best to stop and seek out a surrogate or couple who are a better fit.

A surrogacy contract can go far to protect the interests of all parties, but there are limitations that both parties need to keep in mind when going into a surrogacy arrangement. There can be no specific performance of a surrogacy contract; a court cannot and will not force a surrogate to do or not do something with her body. Instead, alternative remedies need to be considered and included, including financial penalties for failure to follow the contract or a release of child support obligations should a surrogate refuse to terminate according to the contract. Medically, a doctor’s duty is primarily to his or her patients, the surrogate and the baby, regardless of the desires of the intended parents. A doctor will not perform a medical procedure against a surrogate’s consent or her medical best interest.

Careful matching of surrogates and intended parents, followed by careful contract drafting, is the best way to ensure that everyone is going into the process with the same expectations and everyone’s interests are protected. Speaking with a North Carolina family lawyer can help you make sure that you have covered all your bases and considered all your options.