Provisions a Legal Contract Should Contain
Comprehensive and sophisticated contracts should be executed prior to entering into a surrogacy arrangement. In some states, surrogacy arrangements are clearly illegal or restricted, and expert advise must be sought through local counsel in that state regarding whether or not the Intended Parents may enter into a contract with a Surrogate Mother.
The surrogacy contract covers a myriad of critical legal and logistical issues, including, but not limited to, custody of the child or children and parental relationships, methods of payment to the Surrogate Mother, medical assurances, physical and psychological evaluations of the Intended Parents and the Surrogate Mother, and the possible selective reduction of multiple births. Prior to executing the contract, both the Intended Parents and the Surrogate Mother must undergo a full and comprehensive legal consultation with independent counsel. Counsel must explain in detail the possible legal risks and uncertainties arising from the subject mater of the agreement, as well as the serious possible consequences that would result from a material breach of the agreement by the Parties.
In the case of egg donation, the egg donor contract must be equally scrutinized by the parties and their legal counsel. The contract addresses such issues as the medical and psychological assurances, designation of parental relationships, rights to privacy, property rights to the eggs, and the assumption of the legal and parental responsibilities of the child or children to be born. Further, if the recipient couple wishes to remain anonymous, legal documents are positioned to reflect their privacy. Once again, it is imperative that the numerous provisions contained in the egg donor contract are explored by the parties, in depth.
All copies of the fully executed contracts and a clearance letter from the Surrogate Mother’s attorney (or the Egg Donor’s attorney) are returned to and reviewed by the Intended Parents’ counsel, VorzimerMasserman ("VM"). VM then provides CSP with a legal ‘clearance’ letter, indicating that all contracts have been fully executed. CSP then provides the physicians responsible for facilitating the transfer with the requisite legal clearance for them to commence.A surrogacy contract should contain provisions which:
- Establish the intent of the parties as to parental rights.
- Establish the intended parents' financial responsibility, including requiring funds to be placed in a trust account to cover all anticipated expenses.
- Establish the intended parents financial responsibility for the child irrespective of any physiological problem.
- Require all parties to have legal and medical informed consent (all parties must be represented by counsel).
- Provide that social disease testing (including AIDS) be performed on all parties. Provided that the surrogate be medically examined and declared suitable.
- Provide all parties with current status of the law (e.g. abortion rights, the fact that legally the surrogate may not be forced to give up the child in the case of artificial insemination and the lack of surrogates' rights in In Vitro Fertilization).
- Establish specific responsibilities each party has so as to minimize misunderstandings later on.
- Establish that records be kept on all parties in the event information on a party is later needed for legal or medical reasons.
- Provide that all parties adhere to adoptions regulations including legal and informed consent by the surrogate to her relinquishment.
- Provide health and life insurance policies be maintained by the parties throughout the agreement and further require that such insurance be purchased should coverage lapse.
- Provide a legal and psychological framework so all aspects of this process are thought out, considered and pondered by everyone prior to entering into this agreement.
- Provide ongoing group and individual psychological counseling for the surrogate throughout the entire process.