How to Write a Good Surrogacy Contract

In the past 20 years, the number of parents who use surrogates to expand their family has drastically increased. Though surrogacy is certainly becoming more popular, it’s still not a hassle-free process. If you want to avoid any problems later on, it is a good idea to include these items in your surrogacy contract.

A Clear Definition of What Type of Surrogacy You Are Using

Start your contract by making sure you know what type of surrogacy your family plans on using. Legally speaking, there is a difference between traditional surrogacy, where a woman donates an egg and carries the child to term, and gestational carrying, which involves a woman carrying to term a fetus that does not have her genetic material. Keep in mind that New Jersey surrogacy law does not acknowledge pre-birth surrogacy contracts in cases of traditional surrogacy. You can write a document to clarify things and express every party’s intentions, but it won’t be valid in court.

The Carrier’s Consent to Carry a Child and Surrender It After Birth

The surrogate contract is a way for your chosen gestational carrier to formally acknowledge the situation. They will need to sign clauses that state that they agree to attempt to carry and give birth to the child. To be a valid surrogacy contract, the carrier also needs to acknowledge that they will surrender custody of the child after birth. This is one of the most important provisions for your New Jersey adoption attorney to include in the whole document.

The Intended Parents’ Accepting of Responsibility for the Child

Another essential provision in any surrogate agreement is both intended parents stating that they will accept legal custody of the child after birth. Even intended parents who contributed genetic material to the child will need to be listed in this part of the document. Furthermore, the contract needs to say that you accept sole responsibility for the child. This allows your names to be put on the child’s birth certificate, and it absolves the gestational carrier of any duty to the child.

Descriptions of How Both Parties Will Handle Medical Care

The contract should acknowledge that the gestational carrier has the right to make their own medical decisions during the pregnancy. It’s a good idea for the contract to include a requirement for the surrogate to notify intended parents of her plans in writing. The contract should also discuss how the parents plan on paying the surrogate for her medical care. Things like insurance policies, doctor’s bills, or cash compensation should be discussed.

Whether the Intended Parents Will Pay for Living Expenses

Technically speaking, the only compensation that the intended parents have to make is for the surrogate’s lawyer and medical care. However, they are also allowed to pay for the surrogate’s living expenses during the surrogacy process. In most cases, gestational carriers will only agree to the process if they do get appropriate compensation. Make sure that your contract clearly lays out what expenses you will pay for and how often you will pay them. Some families provide a monthly allowance while others may want to reimburse the surrogate after the pregnancy.

The Timeline for the Surrogacy Process

In any surrogacy contract, more clarity is always a good thing. You should spell out all expectations and consider all potential problems. This can avoid conflicts or confusion later on. Start by discussing where and how the implantation process will occur. Clearly state how many times you will attempt the implantation process and what you will do if the process fails. You can also use the contract to describe whether or not you want to try again if the pregnancy results in a miscarriage or stillbirth. The contract can also help you discuss how long the surrogate has access after birth and whether she can contact the child later on.

A well-drafted surrogacy contract protects both the surrogate and the intended parents. At Cofsky & Zeidman, our New Jersey adoption attorney can help you write and file all necessary surrogate paperwork. To schedule a consultation at one of our Pennsylvania or New Jersey offices, call 856-429-5005. You can also talk to our team by filling out our contact form.