Advice From An Attorney on Surrogacy Contracts
Hi! I’m Casey Brown, the Co-Founder and Director of Await Surrogacy and I recently had the opportunity to sit down with Allie McNair, the attorney at Building Families to discuss the ins and outs of the legal contracts in surrogacy. If you have additional questions about this process, you are welcome to reach out to me at info@awaitsurrogacy.com or Allie and Cole at info@buildingfamiliessc.com
What’s a piece of advice that you wish every Intended Parent or Gestational Carrier would remember as they walk into their contract drafting or review?
For all parties, remember the contract is not meant for one party to have control over another, but for the interests of all parties to be protected and heard throughout the process.
For Intended Parents, we would note that not every term of the contract is negotiable. When you choose the agency that is guiding you through the process and providing a match with a Carrier, you are agreeing to certain set terms. As such, at the contract stage, not every term is negotiable. If the term has already been outlined in the match terms as agreed to between the agency, Carrier and IPs, the term is already set.
For the Gestational Carrier, we would say that we know you are entering into this agreement to help the Intended Parents have a child and, in the beginning, it seems like the specific terms do not matter given your overarching goals. We would say to be careful, slow down, and make sure the agreement protects you in the ways you were expecting to be protected, both financially and emotionally.
What is the importance of the legal contract?
Surrogacy relies on the concept of “intent based parentage,” a legal principle that essentially means the parties (in this case, Intended Parents) who intend to create a life at the time of conception should be deemed the legal parents. First and foremost, the contract serves to solidify that the intent of all parties is for the Intended Parents to be the legal parents of any child born, and just as importantly, that the Gestational Carrier (and her spouse or partner, if there is one) are not responsible for the child born in any way or form.
The legal contract serves to memorialize the expectations of the parties and outlines the specifics of their own surrogacy journey. Fertility clinics require a letter of legal clearance from the attorneys involved with the contract drafting and review before they will perform the embryo transfer.
What kinds of things go into the legal contract?
The contract attempts to roadmap the particular surrogacy journey and to address all issues that could arise during the process. The contract begins by defining simple terms related to the journey, such as the parties, medical providers, embryo formation, number of transfers, and more. It goes on to address carrier compensation, method and schedule of carrier payment, health and life insurance, conduct during pregnancy, future contact between the parties, travel, and privacy. It also includes more complicated subjects and “worse case scenarios” such as termination of the pregnancy and selective reduction, divorce or separation by any party, life support, and DNA testing. Finally, it addresses what would occur should any party breach the terms of the agreement.
Tell us what the first phone call with the Intended Parents or Gestational Carrier consist of:
The first phone call serves to roadmap the process, answer any questions that the party or parties may have regarding the legal side of the surrogacy process, both as it relates to contracts and to the parentage phase after conception, and let them know what next steps will be. These next steps include that we will be sending them a form to complete that addresses particular details about their surrogacy journey and unique terms for their contract that are not included in the agency match sheet. It also allows everyone to become familiar with one another as surrogacy is a long process, and we will be part of the journey throughout both the contract and parentage phases.
Have you ever had a family back out on contracts when they get to the contract phase? If yes, what do you feel like could have prevented that from happening or been a red flag so that they didn’t get to the contract phase?
In over ten years of practice in this area, we have only had one family back out during the contract phase. In this independent match, the reason contracts were not completed was the Intended Parents and the Gestational Carrier could not resolve their differing views on COVID-19 vaccination. To prevent such an issue from occurring, it is essential that all parties have clarity about each other’s expectations before contracts begin. However, such issues do not arise in agency matches (through Await Surrogacy) as the agency addresses vaccination status in advance of matching.
How long does the legal contract process take and what expectations should the Parties have as they begin the legal part of their surrogacy journey?
It is easy for any or all parties to become frustrated during the contract stage as drafting legal contracts does not begin until the Gestational Carrier is medically cleared by the fertility clinic to begin medications for the embryo transfer, but the clinic will not actually start the medications until the legal contract is complete. This means that when you get to the legal contract stage, everyone is beyond eager to start medications and undergo the embryo transfer. The legal contract phase can take anywhere from four to six weeks. You do not want to compromise the terms you want and need in your legal contract in order to expedite the embryo transfer, so all parties need to be prepared for the length of time the legal contract process takes.
Some contracts are negotiated with very few revisions from the parties, while others may involve a great deal of back and forth. All parties must be patient and remain respectful of one another, for it is far more important to hammer out an agreement that accurately represents everyone’s wishes than it is to have expediency for expediency’s sake. Situations where contracts are rushed are far more likely to result in disputes and disagreements during the surrogacy journey, and we want to avoid this at all costs as the parties are going to be together on this intimate journey for a year or more.
Allison McNair
Esquire, Building Families
Cole McNair
Surrogacy Program Director, Building Families
Founded in 2014, Building Families is the Columbia and Greenville, South Carolina region’s only law firm focusing solely on surrogacy. Offering a welcoming and inclusive environment for all, the firm helps individuals and couples to build their families through surrogacy, providing legal services to clients across the state in all aspects of the surrogacy process.
You can reach Building Families SC at the information below:
Allison McNair, Esquire
Cole McNair, Surrogacy Program Director
Building Families
Adoption & Surrogacy Law
1122 Lady Street, Suite 1103
Columbia, South Carolina 29201
Phone: (803) 862-0207
info@buildingfamiliessc.com