5 Things To Consider Before Becoming A Surrogate Mother

5 Things To Consider Before Becoming A Surrogate Mother

The Importance And Timing Of A Gestational Surrogacy Agreement

The importance of a properly written Gestational Surrogacy Agreement cannot be overemphasized. The timing of the preparation, finalization, and execution of the said agreement is equally important although there are different schools of thought. After 15 years of working exclusively as an Assisted Reproductive Technology Lawyer and with a focus on Surrogacy Law, it is my firm belief that no medical procedure should occur prior to the Gestational Surrogacy Agreement being signed.

The timing of the agreement is subject to the drafting surrogacy lawyer, the nature of the relationship of the parties involved, the language in the agreement regarding termination of the agreement, and the agency involved (if applicable) in the surrogacy arrangement.

Surrogate Mother Risk Assumption

• Assumption of Risks: The number one reason is the protection of all parties. A critical part of the agreement is the section regarding the assumption of risks. Adverse side effects could occur in any procedure, and without an agreement in which the Surrogate Mother has signed off that she is assuming the risks; Intended Parents are left wide open for liability. Conversely, the Surrogate Mother should have the protection of knowing that the Intended Parent(s) will cover the expenses specifically anticipated within the agreement.
• Financial Recourse: Another situation that may result should appointments, travel arrangements, lodging, food, etc. have been paid by the Intended Parent(s) prior to the Surrogate Mother being under contract is that she may change her mind or not comply with necessary directives. With no contract in place, there is no legal obligation and she could walk away from the situation with no recourse, leaving the Intended Parent(s) out-of-pocket for any wasted expenses. Once the procedure has occurred, she could then seek additional compensation from other Intended Parents. Alternatively, should the Surrogate Mother accrue out-of-pocket expenses, lost wages, childcare, etc., the Intended Parents would have no financial obligation to reimburse the Surrogate Mother?

Surrogacy Medical Privacy

1. Privacy Standards: A properly written contract should include releases of privacy rights otherwise protected by HIPAA. This allows the free flow of information from the medical providers. Without it, the medical providers may be unable to share the Surrogate Mother’s information regarding the outcome of the procedure with the Intended Parent(s), to which they should be entitled. In addition, the Surrogate Mother may desire medical information about the Intended Parent(s) so she may make an informed decision prior to proceeding with the medical procedures and ultimate embryo transfer. The Surrogate Mother having the contractual right to be provided that information can be crucial in making such a decision.

2. Agreement of Rights and Obligations: The Gestational Surrogacy Agreement ensures that all parties understand the rights and obligations of everyone when proceeding with the surrogacy journey. A detailed agreement can extend the conversation of topics that the parties believed to have been agreed upon, or had not yet been thought of, and negotiations can be handled by a qualified and experienced surrogacy lawyer. No harm results because the Gestational Surrogacy Agreement should automatically terminate upon a medical provider’s discretion. This language should be within all Gestational Surrogacy Agreements. Once again, without it, the parties simply have no obligation to one another to proceed or to cover the expenses or to comply with directives.

3. Depends on Surrogacy Agency/ Surrogacy Lawyer: All legal expenses may be inclusive, depending on the surrogacy agency, and the surrogacy agency may offer a guarantee program that ensures the Intended Parent(s) are not at financial risk. Tomorrow’s Parents International, LLC’s surrogacy agency program is such that it covers these legal expenses, agency fees, and escrow management fees while offering a full commitment. Therefore, the drafting or reviewing surrogacy lawyer has nothing to gain financially as a result of the Gestational Surrogacy Agreement being signed prior to any medical procedures.
Surrogacy should not be monetarily driven by anyone involved; therefore, no one gains financially with the Gestational Surrogacy Agreement in effect in a timely manner, yet potentially everyone may be left exposed and vulnerable without a said contract in place prior to medical procedures.

Source: https://academic.oup.com/humrep/article/18/10/2196/622680
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