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What to Consider When Drafting a Surrogacy Agreement: A Lawyer’s Perspective

Surrogacy is an incredible option for individuals or couples who are unable to conceive or carry a child themselves. However, entering into a surrogacy arrangement requires careful planning and consideration to protect the interests of all parties involved. As a reproductive law attorney, I understand the importance of drafting comprehensive surrogacy agreements that address legal, ethical, and emotional aspects. Below are key factors to consider when drafting a surrogacy agreement.

Factors to Consider When Drafting a Surrogacy Agreement

A well-drafted surrogacy agreement protects the interests of all parties involved, and promotes a positive and supportive experience for everyone throughout the surrogacy process. This includes:

1. Clear and Detailed Terms

A well-drafted surrogacy agreement should contain clear and detailed terms that outline the rights and responsibilities of all parties involved. This includes the intended parents, the surrogate, and any other third parties, such as egg or sperm donors. The agreement should address issues such as compensation, medical expenses, expectations regarding prenatal care, delivery plans, and the parties’ intentions regarding parental rights.

2. Legal Compliance

Surrogacy laws vary from jurisdiction to jurisdiction. It is crucial to ensure that the surrogacy agreement complies with the laws of the relevant jurisdiction(s). A lawyer who is experienced in reproductive law can guide you through the legal requirements and help draft an agreement that meets all necessary legal standards. This includes addressing issues such as pre-birth orders, post-birth legal proceedings, and parental rights and responsibilities.

3. Medical and Health Considerations

The surrogacy agreement should incorporate detailed provisions regarding the surrogate’s medical and health-related obligations. This may include requirements for prenatal care, health insurance coverage, medical screenings, lifestyle choices during pregnancy, and any restrictions on activities that may pose risks to the surrogate or the unborn child. Clauses addressing the surrogate’s consent to medical treatments and procedures can also be included.

4. Compensation and Expenses

Financial matters are a crucial aspect of any surrogacy agreement. Compensation for the surrogate should be clearly outlined, including base compensation, reimbursement for reasonable expenses (e.g., medical, travel, and legal expenses), and any additional payments for specific circumstances (e.g., multiple births or medical complications). The agreement should also address how and when payments will be made and any provisions for the termination or reduction of compensation in certain situations.

5. Confidentiality and Privacy

Confidentiality and privacy are significant concerns in surrogacy arrangements. The agreement should include provisions that protect the privacy and personal information of all parties involved. This may include confidentiality agreements, non-disclosure clauses, and restrictions on sharing information or images on social media platforms. Clear guidelines can help maintain the privacy of the intended parents and the surrogate throughout the process.

6. Dispute Resolution

While the goal is to achieve a smooth surrogacy journey, it is essential to include provisions for resolving any potential disputes that may arise. The agreement should outline the preferred methods of dispute resolution, such as mediation or arbitration, to help parties find an amicable solution. By addressing potential conflicts upfront, the agreement can provide a roadmap for navigating difficult situations and minimize the potential for litigation.

Drafting a comprehensive surrogacy agreement is a crucial step in ensuring a successful and legally secure surrogacy journey. By considering the factors discussed above and working closely with a knowledgeable reproductive law attorney, intended parents and surrogates can establish a solid foundation for their surrogacy arrangement.

Teri Robins

Teri received her BBA from Emory University in Atlanta, GA, her MBA from Columbia Business School, in New York, and her law degree from University of Cincinnati. When she’s not working, she likes to spend time with her family, including her husband, 2 almost grown and flown kids, and her dogs, reading, and needle pointing.

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