The Longest Legal Document of Our Lives: The Surrogate Contract
The most legal intense part of any surrogacy journey is the contract between the intended parents (IP) and surrogate or gestational carrier (GC).
It’s a dense, complicated, beast of a legal document. You have to make challenging decisions about who will care for your unborn child if something happens to you and your partner, understand the impossible medical insurance landscape in the U.S, and navigate the evolving medical landscape of what pregnant women can/can’t/shouldn’t do.
While doing all this, you can’t help but feel a twinge of jealousy towards couples who conceive without assisted reproduction. They don’t have to negotiate upfront every aspect of a 9 month pregnancy where literally anything can happen. They don’t have to think about how safe the tap water is in a city they have never lived in. However, as gay intended dads, we have to do this, and so I wanted to take this opportunity to share some personal reflections and guidance on how to approach this document for any other gay intended dads on their own journey.
Before this, my husband and I had to navigate the contract with our egg donor. I previously wrote about that experience, but the egg donor contract is nothing compared to the surrogate contract.
In total, we spent about 10 hours on this document. That includes reading, discussing it with each other, researching topics on our own, and talking with our lawyer.
My first - and probably most important - piece of advice to all intended dads: Don’t rush this.
Read every word. Ask every question. Make sure you are 100% comfortable with the document, but also understand that everything cannot be controlled. You have to trust your surrogate. If you are having trouble with the contract and craving more detail and control, perhaps you should reflect on and revisit your match before proceeding.
Also, it’s important to note that there must be separate lawyers on both sides: One for the IPs and a different lawyer for the surrogate. While the IPs cover the costs of the surrogate’s lawyer, this is as far as any conflict of interest can go. The surrogate needs separate, independent legal representation for the process to be ethical.
One of the Hardest Decision for Intended Parents
In the egg donor contract, my husband and I were confronted with our own mortality when we had to specify what should happen to our embryos in case of one or both of our untimely demise.
The surrogate contract takes this to another level, as you have to specify who will care for and raise your child if both IPs pass away before the birth.
I don’t think there has been a more challenging hypothetical scenario for my husband and me. It’s heartbreaking to think of how much we want to be parents and everything we have done to get to this point, only to never meet our child. We definitely did not want to contemplate this reality for long, but we had to discuss who would be best positioned to raise our child in our absence.
We had to think about the situation from a number of different angles:
Who will love our child as their own?
Who knows both my husband and I well enough to make sure our child knows who his/her parents were?
Who will keep our memory alive for our child?
Who has the emotional and financial bandwidth (in this economy, right?) to support another child?
We are in the fortunate position to have both biological and chosen family who are willing to take on this role for us. However, we still had to decide and reach out to them with the terrible hypothetical situation and get their consent.
It was both a hard and beautiful exercise. We got to appreciate how lucky we are to have these people in our lives, but also we had to imagine not being there for our child.
I’m glad we did it, especially because this information is not just for the surrogate contract. We need to have formal will and testament documents drawn up in the U.S. and Sweden that designate these guardians as well as clarify all other aspects of our finances and life should we depart. This is not just for our child but also for each other. We have been relying solely on the institute of marriage for this coverage. However, the U.S. is about to challenge gay marriage, and so we need to solidify these apsects of our lives and deaths in the very near future.
Surrogate Contract ‘Surprises’
There were two aspects of the surrogate contract that I found surprising. It’s not that I didn’t know about these aspects before, but how they were presented throughout the contract was interesting:
State law dictates surrogacy regulations.
Medical decision making makes sense.
Before this contract, I was well aware that some U.S. states do not allow compensated surrogacy (i.e. Louisiana), while others have varying degrees of enforcement and acceptance. The U.S. Surrogacy Law Map (1) is a great resource that every IP should review at least once during their journey.
We found this state law aspect more pronounced because this is the second surrogate contract we have seen. Our first contract was with a previous potential surrogate who became pregnant with her husband while we were waiting for medical clearance. During this time, we initiated legal clearance and briefly saw the contract that was for her. She was based in Texas, where the surrogate laws are fairly friendly, but the abortion laws are definitely not. Therefore, the previous contract had specific language related to parentage, abortion, and selective reduction that was not present in our current Illinois surrogate’s contract.
While it does not affect us, I did find it interesting that Illinois does not allow traditional surrogacy (when the egg donor and surrogate are the same woman). This was in the contract when describing the case law that supports gestational surrogacy and parentage in the state.
The power of state law was also evident in a clause about background checks for the IPs. My husband and I have already done background checks for our agency, but it is a requirement in our surrogate contract. This is not the case for all surrogacy arrangements, given the recent news article where a gay man who is a convicted child sex trafficker was able to have a child via surrogacy in Pennsylvania (2). This is horrific and should not be allowed, so I was glad to see that some states have this requirement in place. I know from this news story that legislators in Pennsylvania are working to close this loophole and prevent this from happening in the future.
In terms of medical decision making, I found this refreshingly straightforward. First, the surrogate gets to choose her obstetrician. Second, any complication that places her at risk is a decision she gets to make for her own safety. Third, any decision that is about the health of the fetus or newborn is up to the IPs, as long as it does not add any unnecessary risk to the surrogate. This makes sense, and it feels like a real partnership with the surrogate.
The Devil is in the Details
I saved the best (meaning worst) for last.
Insurance. Ugh.
Medical facts. Ahh.
However, these are incredibly important. Don’t skimp on the boring details. They may be tedious, but it’s important to read, question, and understand them in your own surrogate contract.
Insurance coverage is a big part of the surrogate contract. There are two types of insurance needed for a journey in the U.S.: Surrogate coverage and newborn coverage.
The surrogate may have her own coverage through her current insurance. If she does not, the IPs will have to get her specific coverage (i.e. Llyod’s of London) or purchase a surrogate-friendly plan on the HealthCare.gov platform.
Don’t mess around with this. We have insurance experts on our team as part of our agency’s ‘Piece of Mind’ program, but if we did not have this I would definitely have hired an insurance professional to review and suggest the correct policy for our surrogate.
For newborn insurance, this is something we have had to learn the hard way. Issues with newborn insurance have led to us breaking previous surrogate matches and starting all over.
The surrogate absolutely must have insurance. Newborn insurance is strongly encouraged but not required. Why? Well, IPs can risk it and hope they have a healthy and uncomplicated delivery. If this is the case, the hospital bill will be a few thousand dollars, and they can be on their way. However, if there are any issues, especially time in a neonatal ICU, then the bill will quickly become hundreds of thousands of dollars. I wrote about what U.S. hospital bills are like for international IPs in a previous article.
The surrogate contract is full of language around these insurances, and the responsibility - rightly so - is on the IPs. It’s not fun to read, but persevere and you will be better for it. Also, rely on your lawyer and insurance experts. Don’t leave anything to chance.
The other detail-oriented section of the contract revolves around what the surrogate can/can’t/shouldn’t eat or do.
To be fair, this list is long, but it’s also a list that every pregnant woman is given by her own doctor before and during any pregnancy. There are A LOT of things that pregnant women should not be exposed to.
The internet is full of dietary lists for during pregnancy, and some are from reputable sources such as the Mayo Clinic (3). The contract also prohibits activities like extreme sports (i.e sky diving) and cleaning out the cat’s litter box (toxoplasmosis is bad (4)). Again, these are normal things that any pregnant woman should not be doing. It’s not specific to surrogates.
Where things get more complicated is if IPs have specific ideas about what they want their surrogate to eat or do during the pregnancy. My husband and I consider ourselves healthy people, but we are by no means Gwyneth Paltrow GOOP followers who scorn fast food and preservatives. On occasion, we love McDonald’s as well as bagels, cake, cookies, and chips. So, why would we expect our surrogate not to have these things?
Where my husband and I got a little side tracked was on something we weren’t expecting. It occurred to us that we have never lived in Illinois, so we didn’t know about the water quality. The U.S. has a patchwork of standards when it comes to tap water, and our research showed that some parts of Chicago have lead in the water (5). While it’s not feasible to have a formal assessment of our surrogate’s water pipes, we did think that purchasing her a lead-filtering Brita to use during the pregnancy would be a good idea.
One other aspect that we wanted to alter in the contract was around environmental exposures. The contract had certain trimester restrictions on noxious chemicals (i.e. nail salons, oven cleaners). We didn’t want this exposure at any time, so we asked for these to be extended for the duration of the pregnancy. The evidence is limited on the negative consequences of these, but it’s not a risk we are willing to take. Also, we didn’t think it would be a huge inconvenience for our GC.
Everyone is going to have different standards when it comes to safety and exposure for their baby. However, this is a journey that is literally out of our control. Will we know if our surrogate drinks tap water without using the Brita filter? No, but we have made a suggestion and will provide it to help mitigate what we can. We will also happily treat her to a mani/pedi after the journey, so that is something else she can look forward to.
Every IP has to decide where they draw the line and what they want to negotiate and monitor. However, the most important thing is to review all the information, talk to your doctor, and make sure you are comfortable with the language and reality of what the journey will be.
Final Thoughts
The surrogate contract is an exciting and daunting step into the last stage of a journey that is years in the making.
This contract has been challenging, and it’s not fun to navigate legalese to understand and align on pregnancy logistics, diet, lifestyle, as well as remuneration for clothing, cleaning, and bed rest, but it’s nothing compared to what we will experience during the pregnancy, delivery, and actually being a parent. I think that’s the aspect that continues to become a realization for my husband and me.
We are going to be parents, and this contract, as challenging as it was, is really only the beginning.
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