Whether you’re a first-time surrogate in the Bay Area or an experienced gestational carrier in New York, moving into the contract negotiations phase of your journey may bring up lots of questions.
As a gestational carrier, understanding what goes into your surrogacy contract will help prepare you for when it happens. Some helpful considerations when negotiating your contract with your intended parents:
- As the gestational carrier, your legal counsel should be a different lawyer than the one your intended parents are using.
- Your legal counsel should be knowledgeable of the surrogacy laws in the state you reside.
- If you don’t understand something, ask!
- Know this contract should be in your best interests as well as the intended parents.
- If you feel strongly about something, initiate a conversation with all parties.
How do surrogacy contracts work at Circle Surrogacy?
Surrogates should be prepared and educated before they begin the contract negotiation process. At Circle Surrogacy, we want the screening, contracts, and matching stages of your journey to be as smooth as the pregnancy!
For many years, Circle used a document called the “Commitment Letter” that required a gestational carrier’s signature. We are always improving our process, and we’re proud to share that Circle no longer requires a Commitment Letter for surrogate mothers; this means that gestational carriers are no longer making financial decisions before the contracts stage, when they may still have questions about the process or their compensation. This is great news!
In place of the Commitment Letter, Circle Surrogacy has a new document titled the “Carrier Agreement Reference Guide” that carriers and their primary support person will review during the surrogacy consultation phase to help prepare them for the contract negotiations process. This document will inform you and educate you, but will not commit you to financial decisions at that stage. Once you are matched with IPs, you’ll work with your contract attorneys to negotiate the carrier agreement.
What is included in a surrogacy contract/carrier agreement?
Many of the elements of the carrier agreement will be outlined in the initial letter you will receive at sign-on with Circle Surrogacy, and will be discussed in your initial screening with Circle staff; however, we’d like to review some of the more important elements of the carrier agreement.
What is a carrier agreement? On a very broad level, the gestational carrier agreement is intended to address the intentions of all parties entering into the agreement, specifically including the understanding that intended parents will be established as the legal parents of the child(ren) and that you, as the gestational carrier, have no legal or other interest in the child following delivery.
The governing surrogacy law. Generally, the state law that governs the carrier agreement will be the law of the state where you live and will deliver. There are a handful of scenarios where a different state’s law may apply, but your attorney will explain if a different state’s law governs (and why) when reviewing the agreement with you.
Number of transfers. Surrogate mothers typically commit to undergoing up to three (3) embryo transfers with Intended Parents, if necessary. If the first transfer is not successful, the IVF Physician will make the determination about whether you should move forward with another transfer and/or if there is an embryo quality issue. Often, a party requests – or a state’s surrogacy statute requires – a time frame for all three (3) transfers to be completed, such as twelve (12) or eighteen (18) months from the first date of transfer or from the last party from signing the agreement.
Pregnancy Risks. There is language regarding the inherent risks associated with pregnancies, whether involving IVF or not. These sections acknowledge that you have the ability to consult with the IVF physician about the overall process and potential medical risks involved and that you are otherwise assuming any potential risks.
Parents’ rights. You’ll see a number of times throughout the agreement language stating that Intended Parents accept all rights, responsibilities, and obligations associated with the child, and that you as the surrogate shall not have any parental obligations except in the very limited circumstance that you were genetically related to the child (i.e., conceived naturally around the time of transfer).
Travel. Once the carrier agreement is signed, you cannot travel internationally. Once you are in your 2nd trimester, you cannot travel to Michigan, Nebraska, or Louisiana, due to the unfavorable laws for surrogacy there. Any travel out of state during the 3rd trimester must be agreed to in writing by intended parents and your obstetrician must also approve at the time of travel.
Termination. You will also discuss any potential termination timeline, if any. Your views on termination will be discussed during your initial application screening and again during the surrogacy consultation. You will be matched with intended parents who share the same views on termination as you do.
Following physician’s orders. You must agree to follow all IVF physician medical instructions, until you are transferred to your obstetrician’s care, at which time you will follow your obstetrician’s medical instructions. This section of the agreement also addresses reasonable limitations on your activities once the carrier agreement is signed and/or while you are pregnant (i.e., no tattoos, high-risk activities, drinking).
Compensation and benefits. Fees will vary by surrogate and although we will provide you with some initial guidelines after screening, you will discuss many of the miscellaneous compensation and benefits with your attorney during the contracts process.
Health Insurance. Prior to finalizing a contract (and sometimes before a match), if you have personal health insurance, your policy will be reviewed by an attorney for use during the surrogacy journey. If it is not approved, if you are uninsured, or if you are otherwise uncomfortable with using your own insurance, a standalone maternity insurance policy will be purchased for the surrogacy pregnancy. Your insurance status may affect your base fee.
How can a surrogate prepare for contract negotiations?
If you’re a first-time surrogate, one way to prepare for contract negotiations is to speak with other surrogates! You can join online support groups and social media forums that may involve discussions about contracts and negotiations. It may also be helpful to speak with an experienced surrogate who can share with you what they wish they had known or negotiated for.
Ultimately, your attorney is going to be your best resource and the majority of your agreement review and conversation should take place with your contract attorney. You can always feel free to share what you’ve learned from other surrogates and express to your attorney things you would like included in the contract, reimbursements you would like, etc., but your attorney will be experienced in Assisted Reproductive Technology Law and can help walk you through the best way to approach a specific request as well as reviewing the agreement with you in detail.
What will the negotiation process be like?
Many of the important surrogacy-related topics (COVID-19, termination, blackout dates, and travel, etc.) will be discussed with you and with intended parents in the initial screening and sign-on phases with Circle Surrogacy, and we’ll take into consideration surrogates’ and intended parents’ opinions on some of the most critical issues when it comes to matching. Similarly, your base fee will be set prior to matching, so your intended parents have an expectation about the largest payment that would be owed to you.
Other miscellaneous expenses and provisions should be discussed candidly with your attorney. If there is something that didn’t come up in your initial conversations with Circle staff or that you would like to change based on your conversations with family members, friends, or other surrogates, you should feel free to discuss those changes with your attorney. He or she will advise you if something is unreasonable or should be framed differently to help the match move forward while still advocating for the things that are important to you to move forward as a surrogate. Examples of these expenses include childcare, lost wages, pumping breast milk, etc.
If you have a strong opinion or a specific request from the start of your journey, you should share that with the social worker/your Circle team in your initial screening and sign-on with Circle. That way, that critically important information can be included in the initial information that is shared with intended parents at matching.
What if a surrogate and intended parents don’t agree on something?
While we take great care in matching our surrogates and intended parents, and we try to align matches knowing how each party feels about many of the more important topics that will be addressed in your carrier agreement, it is possible a difference of opinion may arise. Depending on the situation, your attorney and the attorney for the intended parents are probably going to be able to help you craft a solution that works for everyone. Occasionally, there are situations where a difference of opinion is significant enough to warrant a match break, but that does not mean we can’t align you with another set of intended parents who would be perfectly content with your approach on an issue.
While the contract negotiation stage of your journey can feel a little bit intimidating, remember to focus on the end goal: helping intended parents achieve their dreams of parenthood.
If you feel strongly about something, please be candid in your conversation with your attorney. They have been practicing in this area for many years and have worked with many surrogates. They are best equipped to explain the process, typical requests, standard provisions, and possible changes. Ask lots of questions and ensure you have a clear understanding of the contract prior to signing. Remember that this is not just a contract to protect the intended parents, but to protect you as the surrogate as well. Your thoughts, opinions, wants, and needs matter!
If you’d like to help another family and you’re ready to become a surrogate in NYC, San Francisco, Boston, or nearly anywhere else in the country, you can do so by filling out an application.