After the initial happiness about the start of the surrogacy journey, the intended parents become confused about the legislation and other requirements for the program. They consider the gestational carrier contract too complicated to understand.
To support commissioning parents, we would like to talk about the function and content of the surrogacy contract and the most responsible part of it — contract negotiation. We will also give some useful tips to prepare for contract negotiation. The purpose of this article is to help intended parents to deal with fears connected to the surrogacy contract.
How do surrogacy contracts work at «Herman Family»?
The surrogacy journey faces unique challenges that must be sensitively balanced with the interest of the intended parents and that of the surrogate. The program lasts at least 15-18 months or even more, so the parties involved in it should have a guide, that will show the way through all paperwork, medical procedures, legal requirements, pregnancy and finally birth. A surrogacy contract is a pointer and guarantee of parental rights.
A gestational carrier contract is a legal document drawn up between the intended parents and a surrogate to outline roles and responsibilities before, during and after the pregnancy. The key purpose of the contract is to protect everyone involved in the process: the surrogate, the intended parents and the baby. Besides these, the agreement regulates assigning the correct parentage to the child upon birth.
A baby-carrier agreement is written when the intended parents chose and met the surrogate. It is important not to start any medical tests or procedures before the surrogacy contract is signed. The process of preparing an agreement is complicated and requires the cooperation of each party and their respective attorneys.
If the parties are citizens of different countries, or they can’t speak the same language, the agreement should be written in two languages (bilingual). To decrease the risks of imprecise translations, a so-called “prevailing language clause” should be included.
A gestational carrier contract should meet the surrogacy laws of the country where the intended parents live and the country where surrogacy takes place. Citizenship of commissioning parents also affects different nuances: birth registration, child’s citizenship and visa, medical data confidentiality, and more.
Only an attorney who specializes in fertility law can take into account all these things. Fertility lawyer commits all the legal part of infertility treatment programs. So, intended parents can switch their attention to other equally important things. If you are looking for a professional fertility law specialist in Ukraine, note HermanFamily Law & Consulting. We are a full-cycle agency that gives legal and management support in the process of surrogacy, egg donation, IVF. With more than ten years of experience, we know how to find ways out of the trickiest situations.
The gestational agreement has two copies, one comes to the intended parents, the other — to the surrogate. The agreement must be signed in writing and in front of a notary. When the contract is ready, the intended parents should select a medical clinic that will be responsible for all tests and procedures (ovulation stimulation, IVF, embryo transfer). Commissioning parents and surrogate conclude a separate contract with a medical center, that determines the terms and conditions of working with the clinic.
What is included in a gestational carrier agreement?
Surrogacy contracts will vary one from another due to different fertility state laws. But there are general rules for drawing up the contract. It should be very detailed and disclose all terms and conditions to limit disputes and miscommunication. Professional agreement considers individual characteristics and circumstances. The baby-carrier agreement outlines the obligations and responsibilities of parties about:
- pregnancy and surrogate health;
- legal details;
- unpredictable circumstances.
The major part of a contract is devoted to financial issues (amount of compensation, payment plan, costs). All types of expenses should be included in the document. As a rule, the surrogate gets a fee for the program and monthly household living expenses (including compensation for food, traveling, renting an apartment).
The agreement should outline that in case of unpredictable circumstances, for example, multiple pregnancies or invasive procedures, a gestational carrier can get additional compensation. It should be highlighted who covers costs for medical tests, IVF and maternity expenses. In addition, it is important to spell out health insurance issues. For instance, the surrogate mother should have valid health insurance, while the intended parents should have insurance for the baby.
In the medical section of the contract, parties should draw up in detail everything connected with the program. The source of genetic material (eggs), the destiny of unused embryos (egg freezing), the number of embryos per attempt, how many attempts the parties will make till the pregnancy — all these should be written in a contract as well.
The contract should include agreement on sensitive issues: the party’s action in case of a miscarriage or consensual abortion, premature death of a child. Moreover, the contract should allow termination if a pregnancy becomes life-threatening to the surrogate.
The gestational carrier agrees to follow all medical instructions or reasonable restrictions in the context of pregnancy. She is obliged to take care of herself and the baby throughout her pregnancy. Finally, it is worth mentioning who can be present at birth.
To make surrogacy and future baby legal, many law requirements should be met. Legal registration of birth is one of the most responsible steps. It is important to list the intended parents’ names in the birth certificate. Regarding state law, the commissioning parents may need some additional documents. In addition, the issue of the baby’s name and citizenship should be determined in the agreement. This part of the agreement will contain a description of the procedure of parental rights resolution.
It is necessary to provide a description of liability for breach of the contract by any of the parties in the document. The contract should have information about possible court action in the case of any dispute.
The contract often contains agreements on the action in case of extenuating circumstances. The risk associated with the divorce or death/disability of the intended parents should be taken into account. Talking about divorce, the conditions of the contract may restrict them from doing that during the course of the agreement. To avoid problems with the baby if the parents die, they should decide who will take custody of the child and will be responsible for ensuring the surrogacy agreement is carried out with all financial obligations properly met.
What will the negotiation process be like?
To prevent any troubles that may come, the agreement should be as specific as possible. It is better to consider all possible outcomes. The process of contract forming consists of four main stages:
Every side must have separate and independent representation in each stage to ensure that their best interests are protected, and to avoid a potential conflict. Parties should be ready that the process could take plenty of time (at least 4 weeks).
At the very beginning, the intended parents with their attorney develop the first draft of the agreement. The initial draft is reviewed by a surrogate attorney. He can make necessary changes that reflect the surrogate wishes. Then the longest step begins — attorneys should negotiate the terms of the agreement until everyone is happy. In this phase, all parties should have patience. Negotiation can be frustrating, but a good attorney can relieve clients from a lot of stress.
Negotiation can happen by phone, personal meeting or over email. Communication via email is more common. Both sides offer concerns and suggestions and in the process insert, remove or modify contract clauses. Then the redlined document is sent to the contract owner. This process lasts until the two sides can come to an agreement. Phone calls are useful if one party needs a quick answer. A personal meeting can be helpful to regulate disagreements. Sometimes it helps to better understand an opposite point of view.
How can intended parents prepare for contract negotiations?
It seems that a contract is a boring binder of pages, but, actually, it is a firm foundation for a surrogacy program. Only one harmless missed detail may get in the way to happy parenting.
The good idea is to make small research before the negotiation. Intended parents can speak with other parents to get acquainted with their experience. They can find communities or forums devoted to surrogacy contracts on social media.
However, finding a talented fertility law specialist — is the best thing that commissioning parents can do to prepare for contract negotiation. The attorney has actual information on relevant laws, he or she knows all available options for the intended parents.
Nevertheless, negotiation requires the full involvement of parents, because only they take final decisions. Consequently, they should devote enough time to reading the contract and making some notes (if necessary). One more important piece of advice for them — feel free to ask any question to your attorney.
In case parties have a clear vision of their priorities, the process goes much quicker. The lack of focus leads to an extra circle of negotiation. It is known, that a win-win outcome — is the most beneficial negotiation approach. It means that a ready contract offers value to both parties.
Future parents should be ready that in the negotiation, disagreements can happen from time to time. It is normal, as each party has its own interests. But if all parties are open to discussion, it is possible to solve any question.
Sometimes strong emotions interfere with negotiations. In this situation, it is better to take a break. It is important to separate the people from the contract. No matter how pleasant the surrogate is, the intended parent should keep the contract goals in mind.
What if intended parents don’t agree on something?
Sometimes parties can’t find a mutually satisfactory decision at some point. Disagreement can appear in any question: attending scans and the birth, payments, names on the birth certificate, providing consent on parental rights, aborting in multiple pregnancies. This complicates the process of negotiation, but it is still possible to save the contract. Intended parents should keep calm and do their best to get along.
Every party should have the ability to express their thoughts and concerns without favoring the other. One party should understand why another one feels the way it does about something, and why the question is so important to it. The key to success is — parties should be open for discussion. It is useful for intended parents to decide what topics are fundamental and what are less principal.
Reproductive attorneys have rich experience resolving and managing conflicts in an effective manner. The attorney can propose ways parties can execute to meet the common goal. If intended parents feel uncomfortable about options, they should frankly tell their attorney about it.
Also, if negotiation reaches a deadlock, it is possible to attend mediation services in order to get a resolution. Mediator is a third-party neutral person, who assists parties in reaching an agreement.
The surrogacy journey is a long-term program, and the positive result of it depends on many factors, including extremely unseen circumstances. That is why intended parents need to find a surrogate with a shared vision of the process. They should not force or manipulate a surrogate to agree on something. The key moment is the surrogate mother’s free will and informed consent. Otherwise, the risk that she refuses to fulfill her contractual obligations always presents. Remember that in the context of surrogacy the result of mistakes can be dramatic.
If all attempts don’t give results, the intended parent should not fall into despair. They always can take the decision to find a new surrogate and start one more circle of contract negotiation.
The creation of a surrogacy contract requires elaborate work, but a quality document will save intended parents from many challenges. If you still have questions about the baby-carrier agreement, HermanFamily Consulting & Law agency will be glad to answer any of them.