A 5-Step Surrogacy Agreement Guide for Intended Parents
A crucial step in an intended parent’s surrogacy journey is the drafting and negotiation of the surrogacy agreement. Depending on the jurisdiction, the agreement may be called a gestational carrier agreement, gestational surrogacy contract, carrier agreement, or surrogacy agreement. By whatever name, the agreement is the vital document that governs the entire arrangement between the intended parent(s) and the gestational carrier (and her spouse/partner if applicable) before, during, and after pregnancy.
Each party to the agreement should retain their own experienced fertility law attorney. With the help of their attorneys, the parties’ goal is a clear and comprehensive agreement that ensures they’re protected and provides a roadmap throughout the surrogacy journey.
Step 1: Retain Counsel
The first step in the agreement process is to retain experienced fertility law counsel.
Fertility law is a unique and nuanced area of law that varies greatly from state to state. Parties are best and most efficiently served by retaining an attorney who has extensive experience drafting and negotiating surrogacy agreements, and is devoted to remaining current on the legal issues in the field.
During the client onboarding process, the fertility law attorney will:
- Check for potential conflicts to determine whether a party was previously represented. If so, a waiver or referral to another attorney may be needed.
- Have the prospective client(s) sign an engagement letter that lays out the scope of the representation and terms of the relationship.
- Require payment, often upfront and as a flat fee.
🔍Tip: It is best practice for the surrogate to be medically cleared before any party retains an attorney. This prevents incurring legal fees that likely cannot be recouped if the journey is unable to proceed for medical reasons.
Step 2: The Attorney Drafts the Agreement
Once an attorney is retained, the drafting process begins. The length of time required to prepare the initial draft of the agreement is approximately 1-1.5 weeks. Much depends on the comprehensiveness of the information gathered ahead of time, including:
- Health insurance review and plan for the gestational carrier;
- Medical providers involved;
- Base compensation and coverage of ancillary expenses, such as travel, lost wages, medical procedures, etc.;
- Employment information for the gestational carrier and, if applicable, her spouse/partner;
- Life insurance or surrogate accidental death policy information.
🔍Tip: Matching programs help the parties gather and organize this information. For independent journeys, the attorney can provide direction for how to collect this information and guidance on the average ranges for compensation and ancillary expenses.
Once the agreement is drafted, the attorney will send it to for review. Agreements can often be 30 pages or more. The agreement needs to be long enough to thoroughly cover the essential pieces of a surrogacy arrangement, but it should also be concisely written and easy to read.
Step 3: Intended Parents and Counsel Review Agreement
After reviewing the agreement, intended parent(s) meet with their attorney and review it in detail together. The attorney should explain the provisions of the agreement, answer any questions, and provide clarity around complex legal issues. The attorney may also have questions for the intended parent(s) or items that the intended parent(s) will need to look into after the meeting.
🔍 Tip: Whether intended parent(s) meet with their attorney virtually or in office, they need to make sure they feel completely comfortable with the agreement and that all their legal questions are answered.
Following the meeting, the attorney will send an updated version of the agreement with any changes discussed during the review in red-line. Once approved, the attorney will send the agreement to the gestational carrier’s attorney to review.
Step 4: Parties Negotiate
Once the gestational carrier’s attorney receives the agreement, he or she will it. After that, the attorney will review the agreement with the carrier and her spouse or partner (if applicable). As with the intended parent(s), the attorney for the gestational carrier should explain the provisions of the agreement, answer questions, and provide clarity around complex legal issues.
The gestational carrier will likely have changes to make to the agreement, which may be based on her attorney’s advice or her own review of the agreement. These changes are made in red-line, and then the gestational carrier’s attorney sends the edited agreement back to the intended parent(s)’s attorney for review.
The process of negotiating the agreement typically spans several weeks. It is common for parties to propose changes and engage in a collaborative back-and-forward discussion. This iterative approach allows for adjustments to the agreement to ensure the arrangement is acceptable and comfortable for all parties.
Step 5: Signing
Once all parties approve the agreement, the intended parent(s)’s attorney will circulate an execution version of the agreement with detailed signing instructions.
🔍 Tip: The attorney may also send a final red-line of the agreement with the execution version so parties can review both and have a final opportunity to make sure all is written as expected.
Depending on the jurisdiction, parties will likely need to sign one or more documents before a notary or witnesses.
Once all parties have signed, the intended parent(s)’s attorney will send a letter of legal clearance to the fertility clinic. The letter advises the clinic that the necessary legal agreement between the parties is in place and that the parties can move forward with embryo transfer.
This letter also typically includes relevant information about the agreement (but not a copy of the agreement itself!) for the clinic to keep on file, including the maximum number of embryos that can be transferred in each embryo transfer, the number of transfers that the parties agree to attempt, and the length of time in which to attempt those transfers.
To discuss the legal aspects of your Ohio or Illinois surrogacy journey, contact us today!