Although they are not legally binding in UK, Surrogacy Agreements are recognised in many jurisdictions and it is helpful to have one so you are clear on what will happen before the Parental Order is granted. The discussions surrounding the agreement will help you to identify and address potential issues before they occur. It is also useful to have a record of everyone’s intentions should there be a dispute or disagreement down the line.
Another thing to remember is that it is very common for fertility clinics to refuse medical treatment unless there is an agreement in place. Because it protects all parties during the medical procedures, especially the surrogate, many clinics will not begin treatment until they have seen evidence of your Surrogacy Agreement.
There are many variables that should be considered and addressed as part of the surrogacy agreement, which will usually be both lengthy and detailed. The aim of the contract should be to clearly outline each party’s role, rights and responsibilities before, during and after the birth takes place. We have generated a list of provisions that could be included (this is not an indefinite list):
- The role and intent of the parties involved
- Details of any medical treatments and the location/name of the clinic they will be performed at, for example, where insemination will take place
- Finances for the surrogate - including all disbursements. This usually involves compensation for the discomfort, pain, suffering and inconveniences related to the pregnancy itself, as well as necessary living expenses including all the surrogate’s foreseen and unforeseeable costs such as pregnancy clothing. These amounts should be specified and so should detail about when they will be paid and by whom
However, in the UK the surrogate can only be provided with reasonable expenses, which covers things like loss of earnings, pregnancy clothing, travel expenses to medical appointments, medication and so on.
- The surrogate’s health and responsibilities to take care of herself and the baby throughout her pregnancy, such as the promise not to smoke, drink excessive amounts of caffeine, take illegal drugs or drink alcohol
- The surrogate's duty not to participate in high-risk activities such as skiing, horse riding or going on rollercoasters
- If she has one, the surrogate's partners responsibilities may also be included, such as not to smoke around her during the pregnancy
- Who will be present at prenatal appointments and who should be contacted if there are any issues with the pregnancy and how
- Sensitive issues such as details that may trigger selective termination
- The birthing plan including who will be present, how and where the birth will take place (with the understanding that births do not always go to plan)
- Communication between all the parties, for example, whether all parties are required to keep in contact and how, including the time limit for responding
- What will happen after the birth takes place including who has custody of the child.
As it is against the law for a third party (including a solicitor) to negotiate a surrogacy contract for payment in UK we are unable to draft or review the terms of a surrogacy agreement.