When the family decides to pursue a surrogacy arrangement, the next logical step for them would be to have a surrogacy contract drawn up. However, there are cases, when the participants consider that they do not need to sign any contract, however, it is not the best choice, even in case of a familiar surrogacy arrangement. It is important to remember, that the contract stays valuable not only as a document, which has all legal force, especially in case if there is any dispute arises, the family law would supersede contract law, meaning, basically, the contract is not legally binding in most states, as well as in several countries, but as a way of having all, that needs to be discussed out on the table. There exist several important things, which every thorough surrogacy contract is to contain.
Intention. Any surrogacy contract is to state the intention of both participants, the surrogate mother as well as the couple of intended parents, in order to produce a child for the couple of the intended parents and in which way the fertilization will be obtained, and that both participants enter into the given surrogacy agreement without coercion. This will be especially important in case if the surrogacy results into some kind of a custody battle – it shows that the surrogate mother was aware of her being involved in and chose to partake of her own free will. Therefore, it is extremely necessary for the couple of intended parents to keep in mind, that the custody of a child can not be decided simply by the surrogacy contract, and in case there arises any compliant, the courts will rely on family law above the contract. However, if clear intentions of doing a surrogacy will be shown, then this will keep clear that it was a planned choice.
Compensation. When it comes to the surrogacy contract, compensation is most likely the first thing, people think about. However, it should be pointed out in the surrogacy contract not only how much compensation the surrogate mother will receive for carrying and delivering the child for the couple of the intended parents, it is also to address how – at what intervals the compensation will be paid, if the surrogate mother will receive it split into portions; as well as what will occur in case of a miscarriage and other possible “unexpected” events. The question how the money will be paid should be in there: will the couple of the intended parents set up so – to – say a trust fund – it is considered to be a common way of handling the finances so the surrogate mother is sure that the money is there form the start, or will it be a joint account of some type, or the payment will simply come out of the pocket. Will there be any fee for insemination tries of IVF transfers? Will the surrogate mother receive any additional compensation for any events, for example for cesarean section, an amino or CVS test, a D&C procedure or abortion, which may also be necessary to take place. All these details are to be pointed out in the surrogacy contract.
Along with the compensation, the issue if the intended parents will be responsible for childcare and / or housekeeping in case if the surrogate mother is put on medically necessary bedrest is to be discussed in the surrogacy contract, as well as the issue whether the surrogate mother’s lost wages in case if she has to miss her work be covered by the intended parents.
Expenses. Nearly in every surrogacy case the intended parents take the responsibility for all expenses, which the surrogate mother incurs that she would not have were she not involved into the surrogacy arrangement. These expenses range from the payment for the visits to the doctor and up to prenatal vitamins, medical expenses, which come along with the attempts to get pregnant, and to maternity clothing. However, all expenses are to be mentioned in the surrogacy contract in order to avoid possible misunderstandings. It should also be established how such things as co – payments, ovulation predictor tests, phone calls and other small out of pocket expenses, which are called incidental expenses will be paid. There are people, who prefer to use some flat monthly rate, which the surrogate mother is not accountable for, for example $100 per month to cover all incidental expenses, others use a joint account, from which the surrogate mother can withdraw the necessary sum, and some people ask for a detailed list and reimburse all the surrogate mother’s expenses. It should be pointed out, however, that the way of incidental expenses covering is not as much important as having it agreed on by both surrogacy arrangement participants and in writing.
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