Surrogacy Contracts. Gestational surrogacy video diary about the contract phase of surrogacy. Learn what happens once lawyers get involved.
Transcript of Surrogacy Contracts
Hi Rayven Perkins here from Information-on-Surrogacy.com, and I'd like to welcome you back to the next installment of my surrogacy video diaries. This video is all about surrogacy contracts.
Today we are going to be talking about surrogacy contracts. I have been matched officially for my 4th and final journey as a surrogate mother and now all the information that we've agreed upon is going to go to our lawyers to finalize the surrogacy contracts.
Now, this is my fourth journey and I am using the same lawyer that I have used for my three previous journeys. I trust him; I know he knows his stuff and he's worked with me long enough that I know he will put up with my little idiosyncrasies.
Rayven's son William at the Great Falls of the Missouri River
My intended parents do not live in the state where I live in; they do not live in the state where baby will be born.
You always want to find lawyers in the state the baby will be born.
My intended parents don't actually have a lawyer, so what I've done is I called my lawyer and I've asked him to make some referrals to my intended parents.
He made some recommendations, and they have settled upon an attorney to use.
We're actually going to have my lawyer write the contract. They're paying him a little extra. He will be writing the contract but representing me. Their lawyer will be representing them and going over the contract with them in detail.
It's always very important that the surrogate mother has her own lawyer and her own representation. The intended parents do pay for that cost. It is very important that you have your own lawyer not just to help you look over the contract but to actually represent you through your entire journey, so that if anything goes wrong or if you have any questions or you need anything throughout your journey, you've got legal counsel to go to.
So my lawyer is preparing the contracts. He has not done this before in one of my journeys. In the past, he has prepared the legal paperwork for the court system for my intended parents, but he has actually not done the contracts before, so this will be interesting.
There are few important things that you need to remember to put in your surrogacy contract.
Your lawyer, I'm sure, will go over all of these.
Most people think right away that the money would be an issue, but it's not.
If you've gotten to the point where you're doing surrogacy contracts, you're already agreed upon the money expenses, the compensation, and the reimbursement for travel, that type of thing, so you'll just hand that information over to the lawyers and they'll put that on the contract or into the amendment.
The really important things that you need to think about in the contract are things like, what happens to the baby if the surrogate mother were to be in an accident of some sort, and has to be on life support? Is that something that she is willing to allow? Do the surrogate and her family feel that staying on life support until the baby is viable would be an option? Or is that something for religious reasons or personal reasons she is unwilling to consider? That's something all parties need to discuss.
What happens, if during the course of pregnancy, the intended parents get into an accident? If they passed away, who takes the baby? They need to have a provision in the contract for who they'd like to take their child in the event that they are no longer alive.
Rayven's daughter Sara; a Fairy Princess
You need to think about things like how many embryos are you planning to transfer.
This was always a big sticking point with me because I have had twins as a surrogate mother and I have two singletons.
Every time that they have put an embryo in, it has resulted a healthy, full-term baby. For that reason, there is no way on earth I would ever agree to transfer any more than two embryos.
If I found a set of intended parents who wanted to put in three embryos, I would pass because that's not something I am comfortable with.
Which brings up the next point: selective reduction and abortion. It needs to be clearly stated in the surrogacy contract what will happen if the doctor's advice is that you reduce the number of embryos that you are carrying because maybe you have quadruplets, septuplets, or octuplets. You need to know ahead of time what you'll do in that situation.
It's important to note, at the end of the day, that a woman's body is her body and you cannot force a woman to get an abortion. You cannot force her to selectively reduce, but it should be clearly stated what the intent is ahead of time. If a woman who was a surrogate were to say that she was willing to reduce, and if the parents and the doctor agreed that this was something they wanted to do, and when the time came she decided she wouldn't do it, no court on earth would make her have an abortion, regardless of what a contract stated. However, the courts could say that she could be held financially liable for the breach of contract.
The contract needs to clearly state what happens if one of the parties is in breech. The contract also needs to clearly state of what happens if the baby ends up being the biological child of the gestational surrogate instead of the biological child of the intended parents.
It does happen when a surrogate mother does not follow the surrogacy contract, which clearly states that you have to abstain from sexual relations for several weeks prior to and after the transfer. If you don't do that, and then you get pregnant with your own child, the contract needs to state what happens.
Usually the surrogate mother takes her child home and reimburses the intended parents for every single expense made throughout the entire surrogacy journey.
That's quite common.
The surrogacy contract also needs to state how long you're going to be going through this.
Are you going to do three transfers? Okay, great, how long?
Is that going to be three transfers in the next nine months? The next eighteen months? The next two years?
The contract needs to have some sort of an end. An end usually comes with a live baby, an abortion or a miscarriage, or a specified time period like three tries or three transfers in nine months, which is what my contract states.
It is very important that there is some sort of an end and it is also important that you have a way of getting out of the contract. If you find that after the first unsuccessful transfer you want to walk away, the contract should state that you can do that without any financial repercussions, to either the intended parents or the surrogate mother. These are important points.
Let's see, also multiples. What happens when you do get pregnant with twins, triplets or quadruplets? The contract needs to clearly state what you are willing to carry. Just because selective reduction might be an option, or abortion for genetic defects might be an option, you kinda need to know ahead of time that if the intended parents do not, under any under circumstances want a set of twins for instance, you'd want to know that.
Most surrogates are willing to carry twins or triplets. But if there was a situation where the intended parents did not want them for some reason, you'd want to know this ahead of time and have it in the contract.
And it is also important to realize that the entire surrogacy contracts phase takes time. The attorney draws up the contract (depending on whose attorney it is, usually it's the intended parents' attorney) and their client gets to see the contract first. Then they send it back to their attorney with any changes they want to be made, or any questions that they have. It goes back and forth through them for a while, and then it gets sent to the other party and the process continues.
In this case, I saw the contract first, and I went through that with my lawyer, and then it got sent to the intended parents, who made an appointment and went through the contract with their lawyer. That process takes time.
The shortest contract I've ever had was three weeks, and the longest surrogacy contract I've ever had was three months, and in that particular situation, I walked away at that point. I've mentioned in one of my previous videos that the first set of intended parents I had matched with, when I was just getting started in surrogacy, I'd met a local couple, and we decided to proceed.
We each got a lawyer, and the surrogacy contracts phase started. I happened to have the same lawyer that I'm working with now and I would never work with another lawyer because of how well he represented me during this first botched journey. We never actually did pass the surrogacy contracts phase. The contract phase took over three months, and in the end we decided to part company because of a very simple and pretty silly thing, I think.
It had nothing to do with money. There was a little piece in the contract that stated that there would be a DNA test after the birth of the child, and if the DNA did not match both the intended mother and the intended father, they had the option of giving me the child or keeping it and either way I would have to pay back all the expenses including the lawyers, the agency, all of the clinic fees, everything that they had spent on the journey.
Here's the problem: the biological mother was actually an egg donor. The intended mother was not using her own eggs, so it was quite clear from the onset that the intended mother would not be found to be the biological mother. So, we suggested that they remove the two words "and mother", you know, to take that part out.
Then it would have said that if it was found that the intended father was not the biological father of the child the consequences would apply, and we would have been more than willing to sign the contract. We also wanted to make sure that if the clinic made a mistake and gave us the wrong embryo, that I did not have to be responsible for the consequences, but they weren't willing to take out the part stating that the intended mother had to be the biological mother.
It got to be so silly. I mean, this tiny little error was found in the first week of me having that contract and in the end they absolutely refused to change that part. And to this day I still have no idea why. I mean, it seemed like it was a way for them to have an out; if they got a child that, heaven forbid, had some sort of birth defect that they did not want to deal with as a couple, they could literally "stick" me with the child, so-to- speak, and I would have to pay them upwards of $50,000 for all the fees they had spent thus far, for the privilege of raising their child.
That didn't make sense to me. It was a way that my family was going to be in jeopardy if I chose to sign that contract, so I made the decision to walk away from it. So that's an example of a surrogacy contract taking over three months. It should not take that long. It usually takes between one and two months, and if there are issues at that point on the contract that you just can't iron out, it's good to know then, so that you are able to walk away, because you certainly don't want to sign a contract that you're not comfortable with.
You don't want to sign a contract that has wording that you don't understand. That's what your lawyer is for.
Also another point that I wanted to make about the surrogacy contracts phase is that it can be pretty intimidating. You know, if you say something to your lawyer, by the time it gets to the other lawyer, and back to the intended parents, it sounds like the world is dying and sky is falling down. It can get blown out of proportion very quickly, so it is very important during the contract phase when you are communicating with your lawyer about all the issues in the contract that you also make sure you talk to your intended parents, not necessarily about what changes need to be made in the contract, that is handled by the lawyers, but just to keep them in the loop.
Make sure they understand that, "hey, everything is really okay. I don't know what is sounds like from your end, but it kind of sounds scary from my end, the way that lawyers are asking if this is a no-go, or saying that we might not proceed with the contract unless this is fixed".
It is very business-like, and it can be hard time. It's very stressful for the surrogate mother and the intended parents during the contract phase and that is normal. It will pass. It does get easier after the surrogacy contracts are signed.