Everything a Surrogate Should Know Before Legal Contracts are Signed
There are many things to consider when deciding to become a surrogate, and you’ve likely thought about most of them if you’re planning to sign a contract. Meeting with an Assisted Reproductive Technology Attorney can be an intimidating step in this process because the finalization of your Agreement seems so close.
While these legal professionals are there to help you understand your Gestational Carrier Agreement and ensure it protects your interests, you should not rely completely on them to explain all the details and requirements of a surrogate journey.
Educating yourself about surrogacy contracts prior to meeting with the Assisted Reproductive Technology Attorney allows you to make informed decisions and be fully prepared for a productive discussion with the attorney. Here are the topics you should pay special attention to when getting ready for your meeting.
A Surrogate’s Guide to Legal Contracts
Drafting of the Gestational Agreement
Typically the attorney of the intended parents will be the one to draft the first copy of the Gestational Agreement (also known as the surrogacy contact). Then the surrogate will review with her attorney.
As someone who has reviewed many contracts over the years, it is my opinion that the party drafting the contract will usually tend to skew the contract in their own favor. It is up to the other party to meticulously review and then request changes. A surrogate should never sign a contract that hans’t been thoroughly scrutinized. I personally know surrogates who were taken advantage of in their contracts, and their own attorney didn’t do their due diligence to advocate for them. Take my advice and don’t be complacent when it comes to your surrogate contracts.
Surrogate Lifestyle Restrictions Specifically Outlined in Contracts
As a general rule, you will be expected to avoid activities that could be harmful while you are pregnant. But you may not realize exactly what that entails until you actually read through your contract. I can almost guarantee that you’ll find at least one surprising restriction listed that you didn’t even realize could be harmful to a newborn baby.
Common surrogate lifestyle restrictions include:
- Playing dangerous sports
- Smoking cigarettes or other tobacco products
- Consuming any kind of cannabis, marijuana or THC products
- Drinking alcohol
- Using illegal drugs (and some legal drugs too)
- Handling cat litter
- Applying hair dye (in the first trimester)
- Eating certain uncooked foods, like meat or eggs
- Consuming large portions of some fish, like tuna and swordfish
- Using medications without prior approval
- Getting a tattoo or piercing
- Being exposed to radiation or toxic chemicals
- Applying steroidal creams without prior approval
This list is extensive, but it is not exhaustive. There are many more things that can be harmful to yourself or the baby during your surrogate journey. Pay close attention to this section of the Gestational Carrier Agreement to ensure you are aware of the things you cannot do and are able to ask questions about any restrictions you’re unsure of.
The Compensation Amounts and Payout Schedule
Understanding your base compensation breakdown and payment schedule is essential. A surrogacy journey is not always easy, and you are entitled to compensation for this important role you are filling.
Ensure you understand what your surrogacy payment schedule entails. Many agreements will include payments that start the first month after heartbeat confirmation. Since the payments are a bit arbitrary, it’s important that the terms are laid out clearly in the contract.
In addition, your Agreement should include stipulations for early delivery and how the compensation is affected by premature birth.
Lost Wages for Employed Surrogates
Make sure to ask about coverage for lost wages. If you are unable to maintain your work schedule during your pregnancy, your lost wages should be covered. Look for contract terms that discuss this stipulation.
When you’ve selected your surrogacy attorney, you will be asked to turn in your last 3 most recent paystubs. This will be to determine your average lost wages rate. This lost wage rate should be written in your contract. Make sure that it’s accurate before you sign!
During the course of a journey you will almost surely be expected travel to the fertility clinic for IVF treatments. If you are employed, you will most likely have to use PTO for these travel dates. You should be fully compensated for this time.
There are a lot of doctor and lab appointments that happen in an IVF pregnancy. The surrogate may be required to use PTO to attend these appointments, and she should be compensated lost wages.
Doctor required bedrest can also occur during a surrogacy pregnancy. This will also most likely cause the surrogate to be absent from work and have to use sick time, or take a leave. She should be compensated for those lost wages.
Paid Maternity Leave
All surrogates are entitled to a paid maternity leave. Be sure to ask your Assisted Reproductive Technology Attorney about paid maternity leave for both vaginal delivery and c-section. You need to know in advance if you’re required to sign up for state-issued maternity leave, and/or your intended parents will be compensating you the lost wages for maternity leave. Your exact maternity leave payment should be outlined in your contract.
Surrogate Travel Restrictions
Nine months is a long time to stay in one place, especially if you have family and friends that live in another state or country. Your Agreement will include restrictions on certain travel, so be ready to discuss this with your attorney. Often, restrictions will be placed on travel that would interfere with IVF, obstetrician, perinatologist, or other medical appointments.
You will also likely notice a ban on out-of-country travel for the duration of the Agreement. Beginning the 24th week of gestation, you may be required to stay in the state. The exact terms of your Agreement may differ, but the general idea is that travel restrictions increase in relation to gestational terms.
The Legal Process for Parentage
This is a crucial aspect of any Gestational Carrier Agreement. By signing this contract, you will agree that you are not the legal parent of the child and that the intended parent(s) will take custody as soon as reasonably possible. Ensure you take some time to discuss this with your attorney so that there are no lingering misconceptions or confusion about this aspect of your surrogacy journey.
Surrogate Must Remain in Contact with Intended Parents and Provide Updates
As a surrogate you must maintain regular contact with the baby’s parents. Providing them with updates on your condition and the baby’s condition is an important part of the journey. In short, you cannot ghost the parents if you have a disagreement or difference in opinion.
Covering the Journey Expenses
As a surrogate you are not required to pay for any of the expenses associated with the pregnancy, such as health insurance costs or medical expenses. If you anticipate the need for or want to request specialized services, you should discuss this before signing your Agreement. Again, reimbursement and compensation is an important topic to discuss with your attorney.
Government Assistance
Surrogates are not allowed to be on any government assistance during their journey. This includes state-issued health insurance, cash aide, food stamps, housing assistance and supplemental nutrition programs like WIC. In your contract you agree that you will not be using any government assistance during the course of your journey.
Surrogate’s Spouse or Partner Must Sign the Contract
If you are married or have a partner, they will also be required to sign the Agreement. Not to mention that they will also be required to go through medical screening, especially if you are sexually active.
Surrogate Must Follow All Medication Protocols
You will be contractually obligated to follow all medical instructions once you sign the contract. This includes IVF treatments like self-injected shots, routine obstetrician appointments, and anything else deemed medically necessary for this journey. All surrogates should be completely aware that they will be required to give themselves (or have a family member) shots for many weeks. This can be a touchy subject, and it certainly shouldn’t be a surprise at the time of the contracts being drafted.
Labor, Delivery, and Termination
Ensure your Agreement clearly explains the procedures for labor and delivery, as well as what happens in the event pregnancy termination is deemed medically necessary. Termination is often chosen if your life is at risk or the baby is projected to have a low quality of life. If religion plays a role in the termination decision, this should also be included in the contracts.
The labor and delivery preferences should be discussed long before the contracts are drafted, as early as the matching process. There should be an open conversation about whether or not the intended parents will be in the delivery room. The outcome of that conversation will be included in the Gestational Agreement.
Establish Breastfeeding Expectations
Breastfeeding is a very personal affair, and it will vary greatly from journey to journey. Some intended parents may request that their surrogate breastfeed, while others may not. Likewise, some surrogates may be willing to breastfeed and/or pump for the baby, while other surrogates would prefer not to. All of these details should be discussed far in advance before the drafting of the contract.
What Happens in the Event of Twins and Triplets
The contract should explain in detail what will happen in the event of multiple fetuses, as twins are common IVF. There is always additional compensation for the surrogate with each fetus that makes it to full-term delivery. In my experiences working in the surrogacy industry, I know of countless sets of twins born, two sets of triplets… and even a set of quadruplets born! The point being that multiples are common and the surrogate should be covered financially in the event she is carrying multiples.
Also, when it comes to more than two babies, there’s often a conversation about reducing the number of fetuses. The surrogate should be aware of why this happens (health risks is usually the reason), and she must agree to it.
The Consequences of Breach of Contract
You will also be required to follow all terms outlined in the Agreement. There are legal and financial consequences for breaching your Gestational Carrier Agreement; it is a legally binding contract. If a surrogate does not follow the terms in the agreement, she could be sued and potentially lose her compensation. Depending on the severity of her misconduct, she could also be facing criminal charges.
The best way to avoid any breaches of contract is to fully understand the terms before you sign, and make any requested changes to verbiage you don’t agree with. Nobody can force a surrogate to sign a contract she does not agree with, but they can take legal action after the fact if you don’t abide by the rules.
In Conclusion
These topics are good starting points for conversation with your Assisted Reproductive Technology Attorney. You should not feel forced to enter into an agreement without having your concerns and questions addressed.
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