Surrogacy Agreements: What Must Be Included to Protect All Parties
Surrogacy can be one of the most rewarding paths to parenthood, but it also brings emotional and legal challenges. Couples and individuals often feel a mix of excitement, hope, and worry. Questions may arise about medical decisions or legal parentage, and trying to address all of these while focusing on growing your family can feel overwhelming.
Beyond legal and financial considerations, emotional support is critical. Intended parents and surrogates must communicate openly to manage expectations, alleviate anxiety, and foster a trusting relationship. Some intended parents may feel anxious about the surrogate’s well-being, while surrogates may worry about the implications of pregnancy and birth.
At Smolka Law Group, we help clients through drafting agreements that protect the intended parents, the surrogate, and the child. Reach out to us to discuss your situation and make sure all parties are safeguarded.
Legal Requirements for Surrogacy Agreements
A surrogacy agreement is more than a contract; it’s a detailed plan that sets expectations and clarifies rights. Family Law intersects with surrogacy to define responsibilities and reduce disputes. Each state may have different requirements, but agreements typically cover parental rights, medical decisions, and contingency planning for unexpected complications.
These agreements often begin by defining who will be recognized as the legal parents at birth. They outline responsibilities for medical care, financial contributions, and insurance coverage. Including these details upfront gives all parties a reference point to minimize misunderstandings and prevent disputes.
Agreements also frequently address what happens if circumstances change, such as a surrogate needing to pause treatment or a medical complication occurring. By documenting these elements clearly, everyone involved has a reliable document to refer back to if questions arise.
Family Law also emphasizes compliance with state-specific rules to prevent legal challenges. For example, some states require court approval of surrogacy arrangements or restrict commercial surrogacy. Including these legal requirements within the agreement protects both the intended parents and the surrogate from potential invalidation or disputes later.
Addressing Medical and Health Concerns
Medical procedures, prenatal care, and potential health risks are central to surrogacy agreements. Properly drafted contracts clarify responsibilities and expectations for both the surrogate and intended parents.
Agreements often include:
Prenatal care obligations: Specifies which doctor or clinic provides care and how appointments are scheduled.
Lifestyle requirements: Guidelines regarding diet, exercise, or medications to support a healthy pregnancy.
Health insurance coverage: Defines who is responsible for insurance premiums and unexpected medical costs.
Procedures for complications: Outlines steps to follow if the surrogate experiences medical issues, including emergency care and follow-up treatments.
By addressing these areas upfront, intended parents and surrogates reduce uncertainty and create shared understanding. Clear medical clauses help avoid disputes about procedures, expenses, or responsibilities, which can become stressful if left undefined.
It’s also valuable to include procedures for handling unexpected medical findings, such as genetic testing results or prenatal complications. Discussing these scenarios beforehand provides clarity and lets everyone be prepared to make informed decisions together.
Financial and Compensation Terms
Financial clarity is a critical component of a surrogacy agreement. Family Law emphasizes fairness and transparency when drafting these clauses. Agreements cover a range of financial considerations to protect both parties and provide predictability.
Typical clauses include:
Base compensation: The agreed-upon payment to the surrogate, if applicable.
Medical expenses: Specifies responsibility for procedures, medications, and hospital bills.
Lost wages and travel costs: Reimbursement for time off work or travel required for appointments or treatment.
Contingency funds: Extra provisions for unexpected costs or complications.
Clearly defining financial responsibilities prevents disputes, and allows the surrogate is treated fairly while protecting the intended parents’ interests. Agreements may also address payment schedules, reimbursement procedures, and documentation required for expenses.
Openly discussing these terms during drafting fosters trust and reduces the likelihood of misunderstandings later. Financial planning may extend to tax implications. Depending on the arrangement, payments to surrogates could have reporting requirements.
Family Law guidance helps intended parents and surrogates understand these considerations and structure compensation in a legally compliant way, addressing tax implications, payment schedules, reimbursements, and transparency to prevent misunderstandings and future disputes.
Parental Rights and Custody Clauses
A central purpose of a surrogacy agreement is to clarify parental rights from conception to birth and beyond. Courts frequently rely on these agreements to determine custody and legal parentage.
Common clauses include:
Legal recognition at birth: Specifies intended parents’ names on the birth certificate.
Consent to medical procedures: Confirms intended parents’ involvement in decisions during delivery.
Custody and visitation terms: Outlines rights if legal issues arise with the surrogate or child.
Dispute resolution: Establishes procedures such as mediation or arbitration before court involvement.
Addressing these elements proactively reduces the risk of legal conflicts and gives intended parents and surrogates confidence that expectations are clearly set. Clear agreements help streamline the legal recognition of the child’s parentage immediately after birth, preventing delays in issuing birth certificates or enrolling the child in healthcare and education programs.
Some agreements also include provisions for post-birth communication. These clauses define how updates will be shared regarding the child’s well-being, reinforcing cooperation and reducing misunderstandings between parties.
Governing Law and Jurisdiction
Surrogacy laws vary significantly by state, making governing law and jurisdiction clauses essential. Agreements should clearly identify which state’s Family Law applies and which courts have authority over any legal disputes that may arise.
Properly defining governing law clarifies which statutes and regulations guide the contract and confirms that the agreement meets all state requirements. Jurisdiction clauses indicate where legal disputes would be resolved, preventing uncertainty if disagreements arise.
Including enforceability provisions reassures parties that the contract has legal weight and reduces the chance of disputes about interpretation. Clearly stating the law also protects intended parents who reside in a different state from the surrogate. It prevents confusion and makes sure the courts will honor the agreement, providing security for all parties involved.
Common Challenges and How to Address Them
Even with a detailed agreement, challenges can arise related to medical, financial, or personal issues. Family Law provides tools to address these situations before they escalate.
Disputes may occur if IVF cycles fail, complications arise, or unexpected medical costs appear. Communication breakdowns can create tension if updates or decisions are not clearly shared. Including structured procedures for these events—such as regular check-ins, documentation requirements, and mediation steps—helps all parties maintain trust and reduces stress.
Agreements can also address potential changes in employment, relocation, or lifestyle adjustments that may affect the surrogate’s ability to continue the process. Anticipating these scenarios and including contingency plans builds confidence and reduces the likelihood of disputes.
Proactively addressing potential challenges protects both the surrogate and intended parents while supporting a smoother surrogacy process, reducing stress, preventing disputes, and promoting clear communication and mutual understanding throughout the journey.
Contact an Experienced Family Lawyer
Surrogacy requires careful legal planning to protect all parties involved. Family Law plays a crucial role in clarifying rights, responsibilities, and financial obligations. At Smolka Law Group, we help clients in Palatine, Illinois, and throughout the Greater Chicago Area draft agreements that are thorough, fair, and legally sound. Reach out to us to discuss your surrogacy plans.
