Many wonder whether a contract between the Intended Parents and the Gestational Surrogate (and her spouse if she is married) is a necessity in a surrogacy matter. Simple answer is yes. Under Florida law, a contract is specifically required under Florida Statute 742.15. Section 1 of that statute states,

Prior to engaging in gestational surrogacy, a binding and enforceable gestational surrogacy contract shall be made between the commissioning couple and the gestational surrogate.”

The statute goes on to list the specific requirements in order for the contract to be valid. Among those requirements are the age requirement, where the Parties to the contract must be at least 18 years of age. Additionally, the law states that the couple must not be able to physically gestate a pregnancy to term, or the pregnancy would cause a physical risk to the mother or to the fetus “within reasonable medical certainty as determined by a physician…”.

For those who qualify under the law, they can proceed with a contract. Without this contract in place, there is no legal basis for the Intended Parents to establish their parentage in court for a birth of their child via surrogacy. This means the Intended Parents would not be able to obtain a birth certificate with their names on it as the legal parents. Consequently, obtaining those parental rights over the child would become a drawn out legal process, which could end up in having to go through an adoption proceeding, even if the child is 100% genetically related to the Intended Parents. Something easily avoided with a proper contract in place.

Apart from the legal requirement, there are many other very important reasons to have a contract in place. A contract will protect the parties from legal disarray further down the road. For the parents it will provide the conclusive evidence of an agreement as well as allow for a streamlined paternity establishment at the birth of their child. For the surrogate, it will evidence her intent and keep her from having a drawn out legal situation or fall subject to any responsibilities, whether they be paternity or financially based. The contract will provide the proper remedies for any unforeseen circumstances and act as evidence of the expectations moving forward.

What does the contract include?

In order to provide these protections, the contract will provide for many things including, the parties’ intentions, the applicable law, the professionals involved and the insurance (medical and life) being utilized. The agreement will also address the parties’ responsibilities throughout the duration of the agreement as they pertain to their actions throughout, their financial responsibilities, their remedies in case of breach and responsibilities to third parties (i.e. confidentiality). The content of the contract should be such that all important scenarios and decisions are addressed then in the agreement, before the situation actually arises.

Inevitably, there are variable outcomes with every change in circumstance during a surrogacy journey and the agreement needs to anticipate those outcomes to protect everyone involved, especially the child. The terms included in a good contract are therefore constantly evolving for the utmost protection. One very important inclusion is the acknowledgement of and courses of action laid out for any potential disputes or unexpected events that may arise. The agreement addresses what could potentially occur for the safety of the parties, especially for a process that from a legal perspective is relatively new and hasn’t had as much litigation in Florida as other areas of the law. This lack of case law, makes it especially important to have a well drafted contract for the journey.

What does the contractual process look like?

Usually, the contractual stage consists of the following steps: (1) Parents’ attorney receives confirmation that surrogate has been medically cleared, (2) the initial contract is drafted and sent to the parents to review, (3) the parents review the contract with their attorney and modify as needed, (4) the contract is sent to the surrogate’s attorney, (5) the contract is negotiated, (6) the final contract is signed by all, and (7) parents’ attorney sends the Reproductive Endocrinologist a clearance letter stating that a legal contract is in place and that medical can move forward.

You can check out our surrogacy timeline for more information.

An important point to consider during the contractual stage is timing. Many like to rush through the contractual stage in order to get to the medical portion and a successful pregnancy (the ultimate goal and most exciting portion of the journey!), however, the contractual stage should be a phase of the process approached with patience, diligence, and thoroughness so that the rest of the journey is a positive experience.

Keeping that in mind, make sure to read everything thoroughly and ask any and all questions or doubts that may arise. Although initially overwhelming, that is what your attorney is there for. It is of the utmost importance, whether you are a parent or a surrogate, that you understand and agree with the contract you will eventually sign. The work put in at the beginning will pay off throughout the process.

Take Away? The hard work and attention to the contractual stage will allow for a safer and more predictable journey for everyone. Hire an attorney who stays current and up to date on national and international surrogacy outcomes and who is connected to the professional community. You want someone that will provide an effective contract which addresses those situations that may potentially affect their clients, even if not usual or common. You want to feel confident in your representation and the agreement you are signing. After all, there is enough unpredictability involved with an assisted reproductive procedure and many things that are not in a person’s control (i.e. successful pregnancy), but a good contract is something that can and must be done.

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