Let’s talk about creating a surrogacy contract. When we first started our surrogacy journey no one wanted to talk about contracts. Firstly, every single surrogate has questions about their contracts. Everyone tells you to do what is specific for you. However, that is the most vague answer. More importantly, what if I don’t know what I don’t know? Trust us, you will inevitably miss something. As a result, we have done our best to give you lots of ideas to help you figure out what applies to you or not.

Disclaimer: this does not substitute obtaining legal advice and is not intended to provide any legal advice for your surrogacy contract. Since surrogacy laws from State/Province/Country. We highly recommend consulting with your lawyer to determine what is legal and best for your situation.

However, we have gathered a list of the most common things to consider when you are drafting your surrogacy contract. Lastly, not every situation will apply to your journey.

Firstly, we cannot stress enough get a GREAT surrogacy lawyer. First and foremost, someone who is knowledgeable in Assisted Reproduction Laws where you live, and has experience with working with intended parents where they live. A good lawyer is going to make sure that your interests are protected. If something doesn’t seem right, ASK. If you want something different ASK. lastly, a good lawyer will walk you through everything you need to know to create a great surrogacy contract.

Surrogacy Contract: Getting Started

Get your Own Lawyer

MAKE SURE you both have a different lawyer. No lawyer can protect the interests of opposing people- it’s just not possible. You want your lawyer to look out for your best interest in your surrogacy contract.

Take your time

Everyone wants to rush to transfer, but rushing this step could ultimately cost you thousands. The ultimate and only goal is to ensure that you are not out of pocket for any expenses throughout your journey. This is a big commitment. Give your surrogacy contract the time and seriousness that it deserves. Now is not the time to take short cuts.

Treat a surrogacy contract as a business negotiation

Contracts aren’t about making friends. They are about protecting you and your family. The needs of your intended parents are secondary right now. Really understand what you and your family will need to make sure you are protected no matter what happens. We aren’t saying be cutthroat but we are saying you need to take care of yourself first.

Advocate for Yourself

You are unique, and your circumstances are different than everyone else. It is up to you to advocate for what you need. If you need some coaching on how to advocate for yourself or need help brainstorming your needs feel free to click here to connect with a surrogacy coach who will help guide you.

Talk about Important issues

It is important for you to discuss a lot of these issues BEFORE you agree to carry for someone else. Lots of disagreements in surrogacy can often be avoided by talking about them even before you get to contract stage. Some of these major topic areas are : Pregnancy Philosophy, Termination, Multiples, What makes your family situation unique and your needs/wants/expectations for surrogacy.

Do Some Research

Read posts like this and talk to other surrogates. We highly recommend you try to get as much info as you can from wherever you can. Research how much things actually cost, not how much you think it costs. Need to make a will? Hire a doula. Find out how much things cost before you decide your cost amount in your contract. This goes back to TAKE YOUR TIME. Protect yourself, and take the time that you need.

Keep Worst Case Scenarios in Mind

Always think about the worst case scenario. This usually means the loss of life, loss of organs, or the loss of your ability to continue work. what you do in your family? what would they need in order to keep the family running if you weren’t available? Always plan for the worst and hope for the best.

Documents Required

Make sure you know what you responsibility is for providing documentation. Some reimbursements may require a simple receipt while others may require a doctor’s note before accessing a service/support. You should know what you need to submit and when.

Have Questions?

ASK. Ask right away before you sign anything. No matter what you do, ask. A good contract will leave you with no additional questions. If you have questions… it’s because it isn’t clear. Do you need more support figuring out what you need? Consider hiring a surrogacy coach.

Creating Your Surrogacy Contract: Important things to consider

Next, we break down things to consider when creating your surrogacy contract. These may apply to you or they may not.

Disclaimer: This does not substitute obtaining legal advice and it is not intended to provide any legal advice for your surrogacy contract. We are not lawyers. Since surrogacy laws from State/Province/Country. We highly recommend consulting with your lawyer to determine what is legal and best for your situation.

Type of Surrogacy

First you must determine what type of surrogacy contract you need and that depends on your type of surrogacy. These different types of surrogacy will have different expectations regarding your surrogacy contract. Make sure you understand what type of surrogacy you are entering into and ensure that you are working with a lawyer who has experience with your type of contract.

Compensation

This only applies to places where it is LEGAL to receive compensation. First time surrogates typically get a lower rate than returning surrogates. This does not apply to countries where surrogacy is altruistic. Compensating a surrogate is ILLEGAL in many countries. Please consult a lawyer before offering, accepting, or providing compensation to a surrogate. Do not accept compensation if it is illegal to do so in your place of residence.

Monthly Reimbursement/Stipend Amount

These vary widely depending on where you live. If you are receiving compensation typically these monthly amounts are lower. These are expenses that you have during pregnancy and submit receipts for. Err on the side of too much rather than too little here. Remember it’s about looking at the worst case scenario. It’s not about getting more money. It’s about having access to the funds you need IF you need them.

Birth Plan

Make sure that your ideal birth plan is an option. Want to give birth at home with a midwife? Make sure that the wording allows for that to happen. Don’t quite know? Make sure it is clear that you are able to choose between the options you are considering. Things may change, especially related to birth, make sure you are not stuck with something you aren’t comfortable with. Ensure that it is clear who can be present and when.

Travel Expenses

Travel expenses should be made clear in your contract. Consider things like: Support people, hotel stays, mileage and food per diems. This is especially important if you do not live near the intended parents fertility clinic. Ensure that you take into consideration whether or not you will be required to attend the fertility clinic for things like: Screening, Lining Checks, Transfers. Expenses should cover all costs to and from all of these appointments.

Clothing

Firstly, make sure clothing is ample for what you need. While your ideal transfer time may be in the summer, there is no accounting for delays and you may soon enough find you need a whole new winter wardrobe and vice versa. If you work, are going to a wedding, planning on pumping etc. Clothing can add up quickly. Ideally, this amount should be in addition to, and not part of your monthly reimbursement.

Childcare

If you have kids that need someone around if you are unavailable/on bed rest. Make sure you ensure that you have cost amounts for this. This includes overnights/ picking them up from various activities, getting them from the bus. We all usually have someone we can rely on in a pinch but you really have to think about whether or not you’d need to hire someone in the event of something longer term such as bed rest. While an appointment or two may not matter but with surrogacy there are simply more appointments and more tests often with short notice, our go to people may not always be willing or able to accommodate.

Pet Care

Some surrogates have animals that also require care. Ensure that you have sufficient coverage to be able to hire someone should you be on bedrest, have an appointment or are away from your home. It is also not recommended that pregnant women handle cat litter. This can be an unexpected cost that isn’t always considered until after a woman is pregnant.

Postpartum Expenses

This can include anything from pelvic floor physio, those lovely diapers, pads, medications, postpartum doula, pumping supplies. Surrogates often underestimate how expensive postpartum can be especially if there are any complications. Consider having a separate line for extraordinary postpartum expenses. It is easy to forget about the post partum period. Ensure that your monthly expenses include a postpartum reporting period. Ideally, this amount should be in addition to and not part of your monthly reimbursement.

Legal fees

You should have your own lawyer in this process. Surrogates should not pay for legal fees or advice. Try to ensure that there isn’t a maximum amount. Surrogates should not have to consider with obtaining necessary independent legal advice. Intended parents should be paying for both lawyers directly.

Life Insurance

Make sure you have life insurance that is paid to your family in the event of your death. Make sure that your contract covers payment for the minimum required. It is possible to have to pay this for 2 full years or more. Get several quotes, life insurance costs vary greatly. Ideally, this amount should be in addition to and not part of your monthly reimbursement or paid directly by the intended parents.

Health Insurance for the Surrogate Mother

Medical insurance is an absolute must to ensure that any health related costs associated with pregnancy and birth are covered. Not all insurance companies are surrogate friendly. You may not be able to use your existing plan or a new plan must be purchased. Medical Insurance can be very complicated and you should consult a professional to ensure that you are protected appropriately. This coverage is for the Surrogate Only. This does not cover the child upon birth. If you are in Canada, a surrogates health expenses are covered and no extra insurance for the surrogate is required. This insurance pays for medical related expenses only.

Health Insurance for Baby

Surrogate insurance does not cover medical insurance for the new baby. This applies to both the united states and Canada. Please consult an insurance specialist to ensure that the new baby is covered appropriately. If intended parents are international, please ensure that your professional is well versed in international situations. Lastly, we cannot stress enough that without appropriate insurance this could be a very costly disaster. Intended parents should be responsible for the purchase of this directly.

Counselling/Coaching

Surrogacy journeys don’t always go as planned. Ensure that you have access to the right support people and that these services are covered by your contract. A coach/counsellor can help you cope with surrogacy pregnancy loss, communication issues, relationship concerns and many more issues that may arise during your journey.

Multiples

There should be a clear defined portion of what happens if there are multiples. Even if you only transfer one embryo at a time there is still a risk of multiples. Being pregnant with more than one child can increase the costs.

Creating or Updating a Will

When you are a surrogate you should have an up to date will that specifically has wording related to your surrogate pregnancy. Intended parents should be paying for the creation of or an update to an existing will for you and your spouse. Again we reinforce the need to get quotes as the costs for this can vary greatly depending on your situation. We also recommend that you explore living will decisions especially related to the pregnancy itself. Your family and your intended parents should be aware of your life-sustaining wishes should anything happen to you while pregnant. Ideally, this amount should be in addition to and not part of your monthly reimbursement.

Transfers

Each contract should have specifics regarding the number of transfers before the agreement will be terminated. Ideally, it would also address what will happen once you have completed the number of transfers. This should also be clear as to the amount of embryos that you are willing to transfer at one time. If it is more than one consider adding expenses related to multiples. There should also be wording related to what happens if both parties want to attempt other transfers over and above the original amount. For your protection, Ideally there would be a stipulation that allows you to decide how long you choose to wait following a failed transfer

Extraordinary Expenses (incurred following the termination of the agreement)

In rare cases, surrogates have bills (usually medical bills) following the completion of their contracts. There should be a provision in your contract that allows for you to submit bills following your journey in cases like this. This would not apply for a receipt you found after the fact but for legitimate bills that you did not receive until after the contract end date.

Bedrest

Every contract should have very specific provisions for bed rest amounts. This should include lost wages, childcare, home care, housekeeping, animal care. Basically anything that you would need to keep your house running if you weren’t able to get out of bed. There should be no cap on the amount of weeks you could submit for bedrest. Worst case scenario in mind, you could (although extremely rare) be on bed rest for your entire pregnancy. You should also have the same provisions in the case of partial bedrest or work reduction. Ideally, this amount should be in addition to and not part of your monthly reimbursement.

Lost Wages

Clear definitions for reimbursing lost wages for you and your partner/support person is essential. This should include for any appointments related to surrogacy from match-postpartum. It is also important to ensure that lost wages are covered postpartum and clear how long they will be covered for. There should also be special considerations in instances where you have had a c-section or there is a loss of organ as the result of pregnancy or birth complications.

Loss of an Organ

There should be a reimbursement amount related to the loss of an organ ie hysterectomy/loss of tubes. Make sure that you make it clear who your birth support will be and add in anything related to an expense that this may cost. This is 100% about you and what you need. This can include your partner, fried, family member, doula, birth photographer. We always recommend a great birth doula and Bonus: one that can also support you postpartum. Ideally, this amount should be in addition to and not part of your monthly reimbursement.

Type of Birth

The type of birth that you have may increase the costs associated with your surrogacy. An example of this would be a c-section which includes longer recovery time and potentially more postpartum supplies covered. This may also apply to a home birth as home birth supplies can add unforeseen expenses for the birth itself. You may also want to consider the type of birthing room costs (i.e. private vs semi-private) for hospital births.

Medical Testing

It should be clear which tests you a surrogate is open to having performed during a surrogacy journey. It is common to have different opinions regarding what types of medical interventions are necessary for a pregnancy. Make sure that you are on the same page and ensure that it is clear who is the ultimate decision maker should there be a conflict. Ensure that any costs associated with any tests are covered. Ideally, this would be outside monthly reimbursement amounts as the total can vary greatly for each test.

Termination/ Selective Reduction

There should be a clear definition of when termination or selective reduction would take place and WHO decides whether or not that occurs. There should be clear wording regarding conflicts. This should also be in line with the laws of your country/state. Please ensure you consult your lawyer regarding appropriate wording.

Substitute Decision Maker

There should always we a substitute decision maker for the child should the intended parents for any reason not be able to make it for the birth or following the birth. There should be a clear plan in place in case the intended parents aren’t available to care for the child. We highly recommend that this not be the surrogate mother for any reason.

What if’s that should be clear

If the intended parents chose not to keep the child for any reason, if they divorce, if they die. There should be clear instructions as to what should happen in these cases. Surrogates should not be expect to ever have to keep the child or be responsible for coordinating care of the child.

Birth Support

Make sure that you make it clear who your birth support will be and add in anything related to an expense that this may cost. This is 100% about you and what you need. This can include your partner, fried, family member, doula, birth photographer. We always recommend a great birth doula and Bonus: one that can also support you postpartum. Ideally, this should be in addition to and not part of your monthly reimbursement.

Pumping/Breastfeeding

Make sure it is clear in your contract whether or not you will be pumping breastmilk or breastfeeding for your intended parents. If you are, consider whether or not there are extra applicable expenses for doing so. If you are undecided at the time of contract ensure that it is clear that this will be decided at a later date.

Parentage

Your contract should make it clear how the issue of parentage will be established. You will need to know what you are required to do following the birth of the child in order to help establish parentage for the intended parents. What is required can vary greatly from each Country/State/Province.

Post Birth Considerations

Surrogates often neglect to consider putting into contracts things such as postbirth relationship expectations. This can include things like: ensuring there is an opportunity for your children to have time to connect and take pictures with the newborn, expectations regarding continued contact/picture sharing.

Picture Sharing

Your contact should clearly outline for both you and your intended parents regarding what type of information can be shared on social media this can include names, pictures of pregnancy, journey, ultrasounds, birth, photos of child following birth. Having clear expectations of what is allowed and what is not saves headaches in the future. This is applicable for you AND for the intended parents.

Final Thoughts …

A great surrogacy contract will leave you with no questions. Everything will be clear and easy to understand what is your responsibility in this journey. Ultimately, you want to be secure knowing that your contract protects you and you can focus on growing, nurturing and caring for that little life inside of you.