Sample Gestational Surrogacy Contract

Surrogate Mothers Online or any of it's volunteers do not claim to be an attorney, lawyer, or have any experience in the field of law.

This is a sample agreement for a gestational surrogacy arrangement. Because each surrogacy arrangement is unique, we do not recommend using this sample agreement as your actual surrogacy contract, but, rather as a template or draft for discussion among the parties involved in the arrangement and their legal counsel.

This sample agreement should not under any circumstance be used as substitute for legal representation for any party involved.

THIS AGREEMENT is made this ___ day of ____________, 19__ by and between ____________________ (hereinafter referred to as "Genetic Father and Genetic Mother" or collectively as "Genetic Parents") and ________________ (hereinafter referred to as "Embryo Carrier").

The Parties are aware that surrogate parenting remains a new and unsettled area of law and that this Agreement may be held unenforceable in whole or in part as against public policy.

I. Purpose and Intent

The sole purpose and intent of this Agreement is to provide a means for ______ ____________, Genetic Father, to fertilize in vitro an ovum from his wife _________ _________, Genetic Mother, for transfer and implantation into ______________, Embryo Carrier, who agrees to carry the ovum/embryo to term and relinquish custody of the child born pursuant to this Agreement to its Genetic Parents, __________________________________.

II. Representations

________________________ and ______________________ represent that they are a married couple, each over the age of eighteen years, who desire to enter into this Agreement. ___________________ and __________________ further represent that to the best of their knowledge they are respectively capable of producing semen and an ovum(s) of sufficient nature for in vitro fertilization and subsequent transfer into __________________, Embryo Carrier, but make no representations as to _____________________’s ability or inability to conceive, carry to term or give birth to a child.

___________________ represents that she is a married woman, over the age of eighteen years, and that she desires to enter into this Agreement for the reasons stated above and not for herself to become the parent of any child conceived by __________________ and __________________ pursuant to this Agreement. __________________ further represents that to the best of her knowledge she is capable of carrying an implanted ovum/embryo to term.

III Selection of Physicians and Counselor.

A.   Genetic Parents and Embryo Carrier will jointly select physician(s) to examine Embryo Carrier, order and review medical and blood tests for Genetic Parents, Embryo Carrier and Carrier’s Husband, and perform IVF procedures (the "Responsible Physician"). The parties will select a doctor in ______________ to do the review and perform the IVF procedures.

B.   The delivery doctor will be the Responsible Physician or Embryo Carrier's regular OB-GYN, whichever the parties jointly select.

C.  At any time that Genetic Parents are advised it is appropriate, Genetic Parents and Embryo Carrier will jointly select an infertility specialist to become the Responsible Doctor.

D.  Genetic Parents and Embryo Carrier will jointly select a psychologist for testing before the IVF procedures and counseling/mediating during pregnancy. The parties have selected ____________ (the "Responsible Counselor") in _____________, who is affiliated with __________.
IV. Physical Evaluations

A.  Embryo Carrier will have a medical examination, blood and other tests and psychological testing as determined by Genetic Parents and their advisors. ______________ expressly waives the privilege of confidentiality and permits the release of any reports or information obtained as a result of said examination/testing to ________________ and ______________

B.  Embryo Carrier’s Husband will have blood and sexually transmitted disease ("STD") tests as determined by the Responsible Physician. ______________ expressly waives the privilege of confidentiality and permits the release of any reports or information obtained as a result of said examination/testing to ________________ and ______________

C.   Genetic Parents will have blood and STD tests as determined by the Responsible Physician. ______________ expressly waives the privilege of confidentiality and permits the release of any reports or information obtained as a result of said examination/testing to ________________ and ______________
V. Conditions.

All parties' obligations under this Agreement (other than the obligation of Genetic Parents to reimburse Embryo Carrier for expenses incurred) are conditioned on:

A.  The approval or Genetic Parents and their advisors of results of Embryo Carrier’s exams and tests.

B.  The approval of Embryo Carrier and the Responsible Physician of results of Genetic Parents STD tests.
VI. Medical Instructions

A.   __________________ agrees to adhere to all medical instructions given to her, including abstention from sexual intercourse as directed by the IVF Physician. ________________ agrees to follow a transfer and prenatal medical examination schedule set by the attending Physician.

B.  Embryo Carrier will not smoke, drink alcoholic beverages, use illegal drugs, non-prescription medication or prescription medication without approval of the Responsible Physician.

C.  Embryo Carrier will undergo prenatal medical exams as directed by the Responsible Physician, will submit to other medical tests, and will take only drugs and vitamins recommended or prescribed by the Responsible Physician.

D.  Embryo Carrier will do everything reasonably appropriate for her good health and the good health of the fetus during pregnancy.

E.  Embryo Carrier will not engage in any hazardous or inappropriate activity during the pregnancy.

F.   Embryo Carrier will not travel outside of ___________ after second trimester of pregnancy, except in the event of extreme illness or death in the family (with doctors approval).
VII. IVF Procedures

It is the parties' intention to do the following:

A.  Try the number of cycles recommended by the Responsible Physician, but stop at any time that the physician recommends stopping

B.  Transfer a maximum of _______ embryos per cycle
VIII. Early Termination of Agreement

Before Embryo Carrier becomes pregnant, the agreement may be terminated:

A.  By Genetic Parents, if the Responsible Physician's opinion is that Embryo Carrier will not become pregnant within ____ cycles.

B.  By Genetic Parents, if the Responsible Physician or counselor determines that Embryo Carrier is not a good candidate for carrying out this agreement.

C.  By Genetic Parents or Embryo Carrier, if Embryo Carrier has not become pregnant after ___ cycles.

D.  By Embryo Carrier, if the Responsible Physician determines that Genetic Parents are not good candidates for carrying out this agreement.

E.   At the discretion of Genetic Parents or Embryo Carrier.
In the event of early termination, Genetic Parents will be responsible for Embryo Carrier's costs incurred up to date of termination.

IX. Termination of Pregnancy.

The parties recognize that Embryo Carrier has the constitutional right to abort or not abort the pregnancy, however, the parties intend the following:

A.  Genetic Parents and Embryo Carrier agree not to abort the pregnancy except to save the life of Embryo Carrier.

B.  Genetic Parents and Embryo Carrier agree not to selectively reduce the number of fetuses in the case of a multiple pregnancy.
X. Birth

A. Location.

Embryo Carrier will give birth at _________________ in ______________, _______________.

B. Notice of Birth.

Embryo Carrier will notify Genetic Parents as soon as she goes into labor so that Genetic Parents can join her at the hospital. Genetic Parents intend to be at the hospital and to be present during the delivery.

C. Responsibility for Child.

Genetic Parents shall be responsible for any children born, whether healthy or not. Embryo Carrier waives the right to make medical decisions regarding the child after birth.

D. Child Born with Severe Birth Defects

If the child is born with birth defects so serious that life sustaining equipment is required and physician recommends that the child not be placed on such equipment or not be resuscitated, Genetic Parents will make the decision. If Embryo Carrier disagrees then she will be responsible for the child from that time, and Genetic Parents will have no further responsibility.

E. Name.

Genetic Parents will name the child.
XI. Relinquishment/Adoption.

Embryo Carrier will relinquish physical custody of the child to Genetic Parents upon birth. Embryo Carrier and Genetic Parents will cooperate in all proceedings for adoption of the child by Genetic Parents.

XII. Paternity test.

Embryo Carrier, Embryo Carrier’s Husband and Genetic Parents agree that the child will have paternity tests, if Genetic Parents request.

XIII. After Birth Contact.

A.   Embryo Carrier can see the child while in the hospital, but the child will be in the care of Genetic Parents from birth forward.

B.  After Genetic Parents take the child from the hospital, Embryo Carrier and Embryo Carrier’s Husband agree not to try to view or contact the child. Genetic Parents intend to keep Embryo Carrier informed by sending a picture and a letter about the child’s progress at least on an annual basis, if Embryo Carrier wishes. Embryo Carrier agrees that she will be reasonably available if child has questions about his/her birth mother.
XIV. Counseling

A. Counseling Sessions

It is the parties' intention that Embryo Carrier will attend at least ____ counselling sessions per month with the Responsible Counselor in ______________ during the pregnancy. It is also the parties' intention that Embryo Carrier will attend more counselling sessions if:

(i)  Embryo Carrier wants to attend the sessions;
(ii)  Genetic Parents want Embryo Carrier to attend the sessions; or
(iii)  Embryo Carrier's attendance is strongly recommended by the Responsible Counselor.
Embryo Carrier will use her reasonable efforts to attend the meetings, but will not be penalized for not attending if she does not feel well.

B. Disagreements.

The parties intend that if they have disagreements among them that they are unable to resolve quickly or if there are issues that they want to bring up before a third party, that they will discuss the disagreements or issues in a conference call or meeting under the direction of the Responsible Counselor. The parties acknowledge that the Responsible Counselor is very experienced in surrogacy matters and agree to be guided by her recommendations.
XV. Fees, Reimbursement, Insurance, and Other Expenses

A. Embryo Carrier’s Fee

1.  Genetic Parents agree to pay Embryo Carrier as compensation for services provided the sum of $_____________. The compensation shall be paid in 10 equal monthly installments, the first being paid after the pregnancy is confirmed.

2.  In the case of a multiple pregnancy, Genetic Parents agree to pay Embryo Carrier a bonus fee of $2,000 per additional child. Bonus fee will be added to the original fee of $_____________ and disbursed in equal monthly installments.

3.  Escrow Account - Genetic Parents will open an escrow account and will place all fees in the account before IVF procedures begin. Genetic Parents's attorney will be authorized to disburse funds from the account per the payment schedule set out above (Section XV, Part A, Paragraph 1 and 2).

4.  Embryo Carrier will receive the total fees set out above (Section XV, Part A, Paragraph 1 and 2), provided she carries the child(ren) at least 32 weeks.

5.  In the event that a cesarian is ordered in either a single or multiple birth, Embryo Carrier will be paid an additional $500.

6.  Genetic Parents will place $_________ in the aforementioned escrow account (v) to pay for any medical expenses not covered by insurance.

7.  For a completed cycle that does not result in a pregnancy, Embryo Carrier will be paid a sum of $500.
B. Termination of Pregnancy

1.  If Embryo Carrier miscarries (through no fault of her own) or is advised by by the Responsible Physician that an abortion is necessary to save her own life, then the payment plan outlined in Section XV, Part A, will cease and all payments to date will belong to Embryo Carrier. Any outstanding uninsured or unreimbursed medical expenses will be the responsibility of the Genetic Parents.

2.  If Embryo Carrier aborts the pregnancy when not directed to do so by the Responsible Physician and Genetic Parents, Genetic Parents will have no responsibility for surrogacy fee or expenses other than Embryo Carrier's expenses incurred to that date.
C. Insurance

1.   Genetic Parents will be responsible for term life insurance for Embryo Carrier

2. The policy will be bought before the first IVF cycle and will remain in effect until 2 months after delivery or end of pregnancy. It will cost approximately $______ premium for $250,000 face amount of insurance. The beneficiaries will be Embryo Carrier's Husband and Embryo Carrier's Children.
D. Counseling

1.  Genetic Parents responsible for costs of psychological screening for Embryo Carrier.

2.  Genetic Parents responsible for costs of counseling for Embryo Carrier at a monthly rate of $_______.

3. Genetic Parents responsible for up to 5 counselling sessions for Embryo Carrier with the Responsible Counselor after the birth, if needed.
E. Medical Payments.

1.  Genetic Parents responsible for the reasonable costs of medical screening for Embryo Carrier, Embryo Carrier’s Husband, Genetic Mother and Genetic Father.

2.  Genetic Parents responsible for all medical costs related to conception, pregnancy and birth not covered by medical insurance.

3.  Embryo Carrier’s medical insurance policy will be the primary insurance coverage for medical costs related to pregnancy and birth.

4.  If a medical specialist for high-risk pregnancy is recommended by the Responsible Physician and not covered by insurance, Genetic Parents will be responsible for all related costs.
F. Attorney's Fees.

Genetic Parents responsible for Embryo Carrier's attorney's fees to review contract as well as those related to adoption procedure.

G. Other Payments

1.  Reimbursement for child care expenses related to Embryo Carrier's travels to doctor visits. ($_______/hr or ________/day for overnight care)

2.  Reimbursement for gas and travel expenses at $.27 per mile for car, airline tickets, and hotel in connection with doctor or counselling visits.

3.  Household helper: Genetic Parents will provide $100 per week (paid monthly in advance) in the case of multiple pregnancy or high-risk pregnancy in which the Responsible physician requires Embryo Carrier to be on bedrest or drastically reduce her activity.

4.  Maternity clothes: $500.00

5.  Stillborn

Genetic Parents will be responsible for any funeral or cremation expenses.

6.  Genetic Parents are not responsible for any charges or costs unless provided for in this Agreement.
XVI. Other Issues

A. Publicity/Confidentiality.

1.  Embryo Carrier will not disclose information about Genetic Parents or about this arrangement to the media unless Genetic Parents approve the disclosure.

2.  Genetic Parents will not disclose information about Embryo Carrier or about this arrangement to the media unless Embryo Carrier approves the disclosure.
B. Death of Genetic Mother or Genetic Father Precedes Birth of Child(ren)

1.  If Genetic Father should die before child is born, the child shall be placed with Genetic Mother as the mother, and all terms of this Agreement continue.

2.  If Genetic Mother should die before child is born, the child shall be placed with Genetic Father as the father, and all terms of this Agreement continue.

3.  If both Genetic Mother and Genetic Father should die before child is born, they have chosen __________________ to be child's guardian and take custody at birth.

4.  In the event of the death of both Genetic Mother and Genetic Father, ________________ will be responsible for all expenses related to the surrogacy.
XVII. Arbitration

Any and all disputes relating to this Agreement or breach thereof shall be settled by arbitration in ______________________, _________________, in accordance with then current rules of the American Arbitration Association, and judgment upon the award entered by the arbitrators may be entered in any Court having jurisdiction hereto. Costs of arbitration, including reasonable attorney's to the prevailing party by the Party designated by the Arbitrator or Court. Should one party either dismiss or abandon the claim or counterclaim before hearing thereon, the other Party shall be deemed the "Prevailing Party" pursuant to this Agreement. Should both parties receive judgment or award on their respective claims, the party in whose favor the larger judgment or award is rendered shall be deemed the "Prevailing Party" pursuant to this Agreement.


Successors & Assigns:
This agreement shall insure to the benefit of and be binding on the parties, their heirs, personal representatives, successors and assigns. IN WITNESS WHEREOF, the parties have executed this agreement on the date first written above.

Dated this _____ day of _____, 1997 at _____________, ________

____________________________________, Embryo Carrier
____________________________________, Genetic Father
____________________________________, Genetic Mother

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