Surrogacy arrangements (wherein a woman agrees to bear a child for another person or couple and to relinquish that child to them after birth) can be legally as well as emotionally complex.
While surrogacy contracts are not legally enforceable in many jurisdictions, they can be very helpful for making sure that everybody is on the same page and for minimizing the potential for destructive disputes later.
The following is a list of sample clauses for a surrogacy contract. It is not exhaustive, and not all clauses will be relevant or desirable in all cases. However, I hope it is helpful as an overview of the breadth of issues, life choices, and risks, implicated in a surrogacy arrangement.
Please be aware: I am sharing this list as a potentially helpful general reference only. It is not legal advice. Also note: not all clauses will be applicable, enforceable, or even legal in all jurisdictions. Many clauses will benefit from elaboration according to the particularities of the situation, and/or may be improved with more detailed or jurisdiction-specific language.
Given the legal complexity and often uncertainties involved in surrogacy arrangements, I strongly urge anybody contemplating a surrogacy arrangement to seek legal advice specific to their jurisdiction and personal situation.
Declaration of Intentions
Assumption of Risk
Warranties and Disclaimers
Termination of contract
Prohibitions on Surrogate
Birth and Post-Birth
- The purpose and intent of this agreement is to enable the Intended Parents (if applicable: one of whom will be the genetic father), to parent a child or children through the services of the Surrogate.
- Surrogate and Intended Parents intend to effect an altruistic/commercial traditional/gestational surrogacy agreement, in which Surrogate will be inseminated with Intended Father/donor semen and carry the resulting fetus to term.
- Surrogate and Intended Parents intend Intended Parents to be legal parents with all legal rights and responsibilities.
- Child born from the agreement will have all testamentary and inheritance rights from Intended Parents, none from Surrogate.
- Intended Parents commit to take full immediate absolute custody notwithstanding and abnormalities of the child
- Surrogate intends to relinquish all rights and responsibilities; she will not be liable for support, custody, or any liability related to the child.
- Intended Parents commit to covering Surrogate’s uncovered medical expenses related to pregnancy, miscarriage, and birth, including an abortion for medical reasons, even if a fetus does not survive pregnancy, is stillborn, or does not survive to leave the hospital.
- Intended Parents commit to covering all uncovered expenses for the child, including burial costs if the child is stillborn or does not survive to leave the hospital.
- Surrogate will cooperate in any legal procedures to relinquish rights and responsibilities to Intended Parents
- The Intended Parents separation or divorce will not affect their mutual and individual obligation and right to acquire legal parental status for the child.
- In case one Intended Parent dies, the other maintains the obligation and right to obtain parental status.
- In case both Intended Parents dies, they appoint Guardian to inherit the obligation and right to obtain parental status, and Surrogate agrees to surrender the child to him/her. (if at all possible, the guardian should sign the agreement)
- The parties intend to be morally bound by this contract, and legally bound to the extent recognized by law.
- Surrogate is aware of the risks of pregnancy and knowingly and willingly undertakes them
- Surrogate is aware of and waives the increased risks incumbent in the use of unquarantined semen
- Parties understand the many legal and physical risks involved and that there is no guarantee of any particular outcome.
- Lawyer disclaims any and all warranties for any particular outcomes.
- Lawyer is not responsible for evaluating or investigating the existence or extent of any insurance coverage.
- Parties have had independent advice and have been informed by their respective attorneys that the legislature or Courts may declare that this Agreement is void as against public policy, in whole or in part, or held unenforceable in whole or in part
- Parties warrant that they understand that if any aspect or provision of this Agreement violates any present or future non-waive-able civil or constitutional right of any Party to this Agreement, or any present or future statute, law, ordinance or regulation, that aspect or provision may not be enforced. However, the Parties further warrant and agree that any said aspect or provision shall be curtailed and limited only to the extent necessary to bring it in compliance with the law.
- It is expressly understood that this Agreement in no way constitutes payment for genetic material, for a child, or for relinquishment of a child.
- Surrogate warrants that to the best of her knowledge, she is fertile and capable of carrying a pregnancy to term.
- Intended genetic father warrants that to the best of his knowledge, he is fertile.
- Parties designate State/Province XXXXX as the jurisdiction for this contract and intend it to be governed and interpreted by the laws of XXXXX.
- In case of a dispute about the interpretation of this contract, parties commit to seeking mediation/binding arbitration/etc. with X mediator (or a mediator or lawyer from Y list/etc).
- Intended Parents will issue payment directly to healthcare providers whenever possible
- Intended Parents agree to promptly (within X time) reimburse Surrogate for any health care expenses she must cover directly, upon receipt of documentation, via Paypal/check/etc.
- QUESTIONABLE/UNACCEPTABLE IN NEW YORK (and likely other jurisdictions that prohibit commercial surrogacy)
- In case of bedrest/temporary disability to work/permanent compromise of reproductive ability/other bad thing, Intended Parents agree to compensate Surrogate dollars $X (Questionable)
- Intended Parents will pay term life insurance for Surrogate continuing 2 mos after birth or longer if physician says so. (Questionable)
- Intended Parents agree to cover the costs of transportation to and from pregnancy related health care, lost work time, maternity clothes, etc. (Unacceptable)
- Before pregnancy, either of the Intended Parents or the Surrogate may terminate the contract with two days’ notice to all parties. Intended Parents will be responsible for the reimbursement of all the Surrogate’s surrogacy-related medical expenses until notification is given.
- Parties agree that termination of the contract after pregnancy by any of the parties, including through the Surrogate’s elective abortion, or after birth, will be considered a material breach of the contract and the terminating party will be morally liable for reimbursement and damages and legally liable under any applicable legal causes.
- Before beginning insemination attempts:
- Intended Parents and Surrogate will undergo complete medical screening for STDs and any possible health issue that might affect impregnation, pregnancy, or the health of the fetus. All parties waive confidentiality of this testing with respect to all other parties.
- Intended genetic father and Surrogate will be tested for compatibility for common genetic disorders.
- Intended Parents will reimburse Surrogate costs for at least one and up to X confidential sessions with a therapist or mental health professional for counseling to fully consider and prepare for the surrogacy process.
- From the time of screening until confirmation of pregnancy or termination of this agreement:
- Surrogate agrees to refrain from any activity where semen might enter her body until pregnancy is confirmed, will not have intercourse with anybody else, (even/unless) with a condom, that might allow transmission of an STD.
- Intended Parents agrees not to have (unprotected) sexual intercourse except with each other.
- Intended Parents will provide Surrogate with semen as described:
- Surrogate will undertake insemination as described:
- Surrogate will monitor pregnancy status as described:
- Surrogate will notify Intended Parents as soon as pregnancy is confirmed
- Participating in any dangerous sports or activities as advised by the attending physician or Surrogate’s obstetrician;
- Travelling outside the Province/State of XXXXX before the commencement of the seventh month of pregnancy without prior notice to the Intended Parent
- Travelling or remaining outside the Province/State of XXXXX after the commencement of the seventh month of pregnancy until the birth of the child
- Smoking cigarettes or remaining in the prolonged presence of second hand smoke;
- Applying hair dye or permanent solution during the first trimester of pregnancy;
- Lifting any weights in excess of the restrictions set forth by the IVF Physician or Surrogate’s obstetrician;
- Drinking alcoholic beverages;
- Drinking more than one cup of caffeinated beverage per day;
- Using any illegal drugs (controlled substances);
- Taking hot tubs or saunas;
- Handling or changing cat litter;
- Ingesting medicinal herbs, saccharine or other artificial sweeteners;
- Home pesticide application from the time period commencing at least one month prior to the embryo transfer procedure until completion of the first trimester of pregnancy or other termination of pregnancy;
- Remaining in close proximity to cleansers, hairspray, oven cleaner, pesticides and other aerosol sprays;
- Applying any topical ointments/creams including, but not limited to steroids, retinal and antibiotics, without the prior approval of Surrogate’s obstetrician;
- Using any non-prescription drugs or prescribed medication without the prior written approval of the attending physician or Surrogate’s obstetrician; and
- Undergoing x-rays (except in the event of a medical emergency) or chiropractic treatment without the prior written approval of the attending physician or Surrogate’s obstetrician.
- Inhaling, ingesting or applying to herself or to others, any essential oil recognized for its potential of adverse effect on the pregnancy, as well as those for which this potential has not been determined. Surrogate shall only be in contact with essential oils deemed safe during pregnancy as per published literature and to inform Genetic Father should she use any.
- Surrogate chooses physicians with consent of Intended Parents
- Surrogate waives all medical confidentiality
- Surrogate agrees to maintain health insurance
- If Surrogate somehow loses her health insurance, Intended Parents agree to pay premiums for a new policy
- Surrogate agrees to give Intended Parents documentation of all medical costs: obstetrical, nursing, hospital and maternity care, pharmaceuticals, and pediatric care,
- Surrogate will comply with all medical instructions, before and during pregnancy, even extensive bed rest, etc.
- Surrogate agrees to take prenatal vitamins and maintain a healthy diet
- Intended Parents agree to be the financially responsible party on all medical forms
- Surrogate agrees to update Intended Parents on the progress of the pregnancy on a weekly basis by phone or e-mail.
- Intended Parents choose which tests and procedures to undergo and Surrogate agrees to undergo
- Either Surrogate or Intended Parents can always ask for a second medical opinion
- Surrogate agrees to go on life support if it will protect the viability of the fetus, even if there is no possible benefit to her.
- Intended Parents agree to reimburse Surrogate for at least X and up to Y confidential sessions with a therapist or mental health counselor to support her emotionally during the pregnancy.
- Surrogate has absolute right to abort or not to abort.
- Surrogate intends not to do abort except if for serious medical reasons, which she will share with Intended Parents
- Surrogate agrees that she will abort at the request of the Intended Parents if tests show a danger of the baby’s quality of life being compromised because of genetic abnormality or any other reason, up until week X of the pregnancy.
- In case of more than 2 fetuses, Surrogate agrees to selectively reduce if it is medically not contraindicated.
- Surrogate will notify Intended Parents at onset of labor. Intended Parents will be able to be present at labor and delivery (subject to physician discretion).
- Surrogate will be able to spend X amount of time with the child before giving the child the Intended Parents. Surrogate (may/may not) breastfeed before giving the child to the Intended Parents.
- Intended Parents will choose what name will appear for the child on the child’s birth certificate.
- Intended Parents agree to reimburse Surrogate for at least X and up to Y sessions with a therapist or mental health counselor to support her emotionally after relinquishing.