Clients ask all the time: can I use my friend’s surrogacy agreement?
The answer is, and always will be, NO. It can be difficult for people without a legal background to understand why borrowing a contract and simply inserting the applicable names is not acceptable. The primary reason why you should not borrow your friend’s contract is because surrogacy agreements are highly customized documents. Your friend likely met with a fertility lawyer for a 1-2 hour initial consultation, followed by phone and email correspondence, and revisions to the agreement. All of the time that went into the agreement was spent customizing it for your friend’s particular circumstances.
Would you change the name and use your friend’s Will? Likely not. It is essentially the same thing.
Let’s look at 3 examples that highlight some of the problems with using someone else’s surrogacy agreement:
1. Selective Reduction and Termination of the Pregnancy
Selective reduction is a medical procedure to reduce the number of embryos. For example, if 2 embryos are implanted into a surrogate and they are both thriving, intended parents may wish to have the surrogate undergo selective reduction so that they do not have twins. Similarly, intended parents may want to terminate the pregnancy if genetic testing reveals a significant risk of the child having a serious genetic disorder. It is incredibly important that surrogacy agreements accurately reflect the wishes of both the intended parents and the surrogate as they pertain to selective reduction and termination. Imagine how tragic it would be if the intended parents make the painful decision to terminate the pregnancy, only to find out that the pregnant surrogate is opposed to abortion. These difficult questions can be highly personal and signing someone else’s agreement may result in the parties making commitments that they do not intend to keep.
2. Relationship after Birth
Some intended parents and surrogates are immediate family or the best of friends. Others are complete strangers. Of the latter, some will have ongoing relationships and others will never see each other again after the birth. The relationship between the intended parents and the surrogate following the birth of the child is very personal. By signing someone else’s agreement, you may be committing to a long-term relationship with someone whom you never intend to see again. Part of the value of the agreement is to facilitate conversations about the relationship before, during and after the pregnancy. Failing to customize one for yourself deprives you of these very important conversations.
Surrogacy agreements typically include a section on reimbursements. It is customary to list the kinds of goods and services, such as maternity clothes and prenatal vitamins, for which the intended parents may reimburse the surrogate. Several complications can arise if this list is not customized for the parties. One of those problems is that intended parents may over-commit themselves. As generous as they may wish to be, it may not be financially possible for the intended parents to broadly reimburse the surrogate.
As well, under the Assisted Human Reproduction Act the regulations regarding expenses have not yet been released. It is unclear which reimbursements are legally acceptable, and which are not. It is possible that what appears to be a generous reimbursement could be considered payment (which is against the law and could result in significant penalties). Intended parents have different comfort zones with respect to which reimbursements they wish to make. Using another person’s agreement could result in signing a legal document that is outside of your financial means or personal comfort zone.
In addition, the laws regarding payment differ across jurisdictions. If you use a surrogacy agreement from a different jurisdiction, there could be clauses that are downright illegal in your own jurisdiction.
As you can see, using someone else’s agreement may result in you signing an agreement that does not accurately reflect your intentions, and you will likely miss out on having certain valuable discussions with your surrogate (or the intended parents, as applicable). In the worst case scenario you could inadvertently violate the law and face financial penalties or imprisonment, or fail to obtain the court order needed to declare the intended parents as the legal parents of the child.
When it comes to surrogacy arrangements, there is no substitute for having your own agreement. The risks are too great to take shortcuts.
through a difficult time?