t is critical that all parties to a surrogacy agreement have an opportunity to properly evaluate the risks involved and the possible legal ramifications arising from their decision to pursue surrogate parenting. Because a surrogate contract involves constitutionally protected parental rights and reproductive freedoms, obtaining legal representation is very important. Since the medical bills will be in the name of the surrogate mother, it is important that the contract protect her and her family against any claims arising from unpaid bills. Conversely, it is important that the Intended Parent’s are recognized as the legal parents to the child and therefore all medical bills incurred by the child. Comprehensive and sophisticated contracts should be executed prior to entering into a surrogacy arrangement. In many states, surrogacy arrangements are clearly illegal or restricted, and expert advice must be sought through local counsel in that state regarding whether or not the Intended Parents may enter into a contact with a surrogate mother and whether payment can be made to the surrogate mother. This is a very important issue, misunderstanding the law could result in criminal penalties! The surrogacy contract covers a myriad of critical legal and logistical issues, including the issue of custody of the child, establishing parental rights, methods of payment to the surrogate mother, medical assurances, physical and psychological evaluations of all the parties, and the possible selective reduction of multiple pregnancy. It is important that the surrogate mother and her husband, if any, are represented by independent legal counsel.
It is recommended that a surrogacy contract should contain the following provisions:
- Establish the financial responsibilities of the Intended Parents.
- Outline the intent of the parties with respect to parental rights and obligations, irrespective of any physiological problems from which the child may suffer.
- Require social disease testing (including HIV) as part of a thorough medical screening.
- Require psychological screening and counseling for all parties throughout the process.
- Provide ownership and disposition of embryos created pursuant to the agreement.
- Address the issue of when the parties agree to abort a pregnancy, or whether the parties agree not to abort a pregnancy regardless of potential birth defects.
- Establish that records be kept on all parties in the event information is needed at a later time for medical reasons.
- Outline an agreement between the parties regarding obtaining medical insurance and the payment of insurance claims.
- Require the parties to properly maintain and store medical records, where applicable.
- Declare which state laws by which all parties intend to be governed.