Entering into a surrogacy https://www.mother-surrogate.com/ arrangement involves many moving parts: medical, legal, and emotional. Without a good agreement, parties risk dispute, legal ambiguity, or worse — circumstances not anticipated by either side.
Key Elements Every Surrogacy Contract Should Include
When drafting a surrogacy contract, certain core items are essential. Below is a list of critical clauses and topics to cover:
- Identity of parties — full names, addresses, legal status of the intended parents, and the surrogate mother.
- Type of surrogacy — gestational or traditional; whether egg/sperm donors are involved; genetic links.
- Medical procedures and healthcare — prenatal care schedule; clinic/hospital to be used; rights to refuse certain treatments; managing risks and complications.
- Parental rights and legal status — who will be recognized as legal parent(s); how parental orders or adoption will be applied for; birth certificate details; how conflicts of law will be addressed.
- Financial arrangements — what medical, legal, travel, insurance, maternity/postnatal costs will be covered; what compensation (if any) is permitted; schedule/payment milestones; reimbursements.
- Insurance and liability — health insurance for the surrogate during pregnancy and after childbirth; liability for complications; life insurance if required; who covers what in case of emergency.
- Consent and autonomy — surrogate’s informed consent; her right to independent legal counsel; her right to withdraw (if legal); privacy and confidentiality rights.
- Dispute resolution — how disagreements will be handled (mediation, arbitration, court); governing law; jurisdiction; what happens if the surrogate changes her mind.
- Other practical matters — living arrangements during pregnancy; travel, accommodation; support for surrogate (physical, psychological); postnatal care; how communication will happen.
Each of these items should be clearly worded and as specific as possible. Vagueness breeds disputes.
Legal Enforceability: What Varies by Country
A big challenge is that surrogacy contracts are treated differently in different jurisdictions. What is valid in one place may be unenforceable in another. Here are some examples and legal considerations:
- In the United Kingdom, surrogacy contracts are not legally enforceable. This means even if you sign a contract where the surrogate agrees in advance to hand over the child, that agreement cannot be legally enforced in UK courts. Intended parents must apply for a Parental Order after the birth to become legal parents. The surrogate must consent to that order (not earlier than six weeks after birth).
- In India, under the Surrogacy (Regulation) Act, 2021, and related regulations, a surrogacy agreement is legally required, and there are rules about what it must include: medical, financial, insurance, and eligibility of parties. Commercial surrogacy is prohibited; only altruistic surrogacy is permitted. Foreign nationals and many non-resident persons are excluded in many cases.
- In many U.S. states, enforceability depends on state law. Some states allow pre-birth orders, which can name intended parents on the birth certificate before the child is born; others require post-birth adoption or court proceedings. Legal counsel familiar with the state’s surrogacy statutes or case law is indispensable.
Because of these differences, a contract should explicitly state which legal jurisdiction (country, state/region) governs it, how its terms will be enforced, and what steps will be taken to comply with local laws.
Common Pitfalls to Avoid
While drafting, there are many traps. Some of the most frequent include:
- Vague language about financial compensation or “expenses” — what seems reasonable to one party may seem insufficient to another.
- Relying on verbal promises rather than written terms.
- Ignoring local laws regarding who can be a surrogate, who can be the intended parents, residency, citizenship, and donor use.
- Omitting insurance or liability clauses leaves the surrogate exposed.
- Overlooking postnatal care or emotional/psychological support.
- Failing to address what happens if the child has health issues, or if the pregnancy ends early.
- Forgetting to include consent timings (e.g., when the surrogate must sign, when her spouse may need to sign).
Avoiding these mistakes can save time, money, and emotional distress later.
Conclusion
A well-prepared contract clarifies roles, sets expectations, assigns rights, and handles risks beforehand. Because laws differ so widely among countries and even states, specialist legal advice is essential.
