Signing a Surrogacy Agreement
If you are preparing for signing a Surrogacy Agreement, you need to make sure you get it right.
A surrogacy agreement is primarily a piece of evidence, to show to the clinic and later, to a court, that the parties entered into the surrogacy arrangement pursuant to the relevant legislation.
A clinic must not perform any embryo transfers or pregnancy attempts without a signed agreement on file. This is a requirement under the NHMRC Ethical guidelines that all clinics must adhere to.
A surrogacy agreement must be signed:
- By all parties to the agreement
- After completing counselling
- After everyone has received independent legal advice
- Before any pregnancy attempts
- And dated on relevant pages
The signatures and dates are really important, because the court must be satisfied that the signatures were placed after receiving legal advice and counselling, and before attempting to fall pregnant.
Witnesses
It is not an absolute requirement that the agreement must be signed and witnessed by a lawyer or a Justice of the Peace, but it is preferable. A witness must not be one of the parties. You can sign the agreement separately, on separate dates, and have different witnesses, or you might do it all together at the same time with one witness for everyone.
Signatures – electronic or wet?
COVID has brought us many things, and that includes a wider acceptance of electronic signing mechanisms. It is still preferable to use a wet signature – that’s where you physically place your signature on the paper, with your hand and a pen. Everyone must sign the same copy of the Agreement, so that there is one original with all signatures. If you are considering using electronic signatures, please check with me beforehand.
Storing the Agreement
It is not uncommon to sign the Agreement, then forget where you put it! As there can be a lapse of time between signing the Agreement and applying for the Parentage Order, it is important to keep the original copy in a safe place, and provide a signed copy to the clinic, and to both lawyers. If we cannot provide a signed copy of the Agreement, this may mean not being able to satisfy the Court for the Parentage Order.
Now that you’ve done all the pre-surrogacy process, you can start preparing for a surrogacy pregnancy and birth.
If you are new to surrogacy, you can read about how to find a surrogate, or how to become a surrogate yourself. You can also download the free Surrogacy Handbook which explains the processes and options.
Sarah has published a book, More Than Just a Baby: A Guide to Surrogacy for Intended Parents and Surrogates, the only guide to surrogacy in Australia.
You can find more information in the free Surrogacy Handbook, reading articles in the Blog, by listening to more episodes of the Surrogacy Podcast. You can also book in for a consult with me below.
Hi! I’m Sarah Jefford (she/her). I’m a family creation lawyer, practising in surrogacy and donor conception arrangements. I’m an IVF mum, an egg donor and a traditional surrogate, and I delivered a baby for two dads in 2018
I advocate for positive, best practice surrogacy arrangements within Australia, and provide support and education to help intended parents make informed decisions when pursuing overseas surrogacy.
