Surrogacy is a highly exciting event for both IPs and surrogates alike, but it is not uncommon for the process to seem a bit overwhelming or complicated at first. In order to have a successful surrogacy journey, both parties must have a clear understanding of the legal matters involved in surrogacy to avoid any confusion or unexpected surprises along the way.
Let’s take a look at how legal matters are handled throughout a variety of important contracts.
Surrogacy Contracts
The foundation of the working relationship between surrogates and IPs is the surrogacy contract. This critical document serves to outline all potential outcomes of the pregnancy so that both parties are on the same page before beginning the process.
The contract will include:
- The expectations of the intended parents – IPs will share their expectations on a variety of items, which may include the surrogate’s background, medical expectations, as well as communication preferences throughout the journey.
- The expectations of the surrogate – A surrogate’s expectations can include everything from her view on invasive procedures, to how many embryo transfers she is willing to undergo, to everything in between.
- How embryos will be created – The creation of embryos will either be via egg/sperm donation or with sperm/eggs from the intended parents.
- Detailed compensation terms – Surrogate compensation will vary depending on a surrogate’s experience. Additional benefits such as psychological counseling, housekeeping, childcare, etc. may also be included in the compensation package, depending on the surrogate’s unique situation.
It is critical that all expectations are established up front as to avoid any confusion and discord throughout the surrogacy process.
Egg Donation Contracts
An egg donation contract will be drafted to clearly outline the intentions, rights, and obligations of the IPs and egg donor.
They will also touch upon any medical risks and legal consequences involved, and will cover the following:
- Physical examination – This will ensure that there are no medical issues that could negatively impact the egg donor cycle.
- Genetic testing – This will help ensure the best health and genetic makeup for a future child.
- The donor’s full relinquishment and control of all eggs retrieved – In order to protect the rights of all parties, the donor will relinquish control of eggs retrieved as well as that of the resulting embryos.
- Assisted reproductive procedure – This will outline the details regarding the specified assisted reproductive procedure. (i.e the egg retrieval)
Sperm Donation Contracts
Sperm donation contracts will grant intended parents all legal rights of parenthood, provided the couple uses a donor through a medical clinic.
It is important to keep in mind that in most cases, sperm donations are covered by state statutes. Thus, the law of the state where the donation occurs must be analyzed for the legal safety of the parties.
Pre- and Post-Birth Orders
Also known as “court judgments,” pre- and post-birth orders help establish the parental rights of the IPs before or after their surrogate gives birth.
Depending on the state in which the surrogate resides, some IPs will receive a pre-birth order, which is issued prior to the birth of their child. Pre-birth orders are also only available in certain states, so not all IPs will have the ability to obtain one. In states where pre-birth orders cannot be obtained, post-birth orders will be issued instead. In the case of a post-birth order, IPs may be required to attend a court hearing held after the birth of the child.
