It is necessary that all the intentions of every participant of a surrogacy agreement would be clearly expressed in the terms of a well – drafted surrogacy contract. The woman, who is going to become a Surrogate mother intends to get pregnant with a child / children, which is / are genetically related to at least one of the future Intended Parents, but does / do not have any genetic relation to her; and as soon as the baby / babies is / are delivered, the Surrogate Mother is agrees to cooperate with establishing the couple of the Intended Parents as the sole legal parents of the child / children. As for the couple of the Intended Parents, their intentions are based on the genetic material (it is an egg / eggs and / or sperm) contribution to the pregnancy of their Surrogate Mother and on receiving sole legal custody of, as well as responsibility for the child / children after his or her / their arrival. And it is important to point out, that everything goes smoothly as long as all participants of a surrogacy agreement are true to their initial cooperative intentions. However, what can possibly occur, if one of the participants changes his or her mind? First it would be useful to assess the likelihood that either participant will change his or her mind and then the evaluation of what may occur when it happens should be provided.
The legal answer as to what a court will do in case if either of the surrogacy agreement participants: a Surrogate Mother or both or one of the Intended Parents changes his or her mind is different in each state or country, and it depends on the individual statues and case laws of every state and country. Thus, considering the USA, for example, there may be 50 different kinds of answers to this question. Anyway, the legal analysis of the law of a particular state or country should be completed thoroughly and taken into consideration before a couple of the potential Intended Parents or a potential Surrogate Mother enter into a surrogacy agreement. It is extremely important to make the analysis of the specific laws of the state or the country in which the Surrogate mother resides with the help and advice of an attorney, who is licensed to practice in that state or country and who is well – experienced in surrogacy matters.
As for the contractual answer as to what may occur in case of either participant of a surrogacy agreement changes his or her mind about this agreement is considered to be much more straightforward. This is so because the express terms of every surrogacy agreement as to what can occur in case if either participant of it decides to breach the given agreement is to be within the strict control of the respective participants and their attorneys. In order to be able to prevent any situation like this, the participants of any surrogacy agreement are to fulfill the following steps:
- The participants of any surrogacy agreement are to determine what actions constitute a breach of their agreement;
- The participants of any surrogacy agreement are to decide which available procedural forums, such as court, arbitration, mediation, etc, will govern any dispute like this;
- The participants of any surrogacy agreement are to decide what every participant’s contractual remedies will be in case of certain types of breach by the other.
It should be kept in mind by every participant of a surrogacy agreement, that a breach of the agreement occurs anytime when an obligation under their agreement is not fulfilled, or when either an express representation or warranty by a participant as for the participant’s history or circumstances happens to be untrue. To the obvious example of a Surrogate Mother’s breach of a surrogacy agreement may the Surrogate Mother’s failure to give the child / children, she has delivered in the result of a given surrogacy agreement, to the couple of the Intended Parents may be referred. At the same time the couple of the Intended Parents would breach a surrogacy contract, if they refuse to receive sole custody of as well as the complete responsibility for the child / children, which arrived in the result of their surrogacy agreement, without taking into consideration how many there were or in what kind of health condition there were.
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