Why are surrogacy agreements not like contracts? How can we write our own?
A surrogacy agreement is not the same as a commercial contract. The elements of a basic contract include (1) an offer, (2) acceptance, (3) consideration (usually money) and (4) an intention to create a legal relationship. For example, you offer to buy a car for $10,000. The owner of the car accepts your offer; you provide $10,000 as payment (consideration), in return for the car. Both you and the owner of the car enter into a legal relationship to exchange money for the car.
In altruistic surrogacy arrangements, the surrogate and her partner offer to carry a baby for another person or couple, and the intended parents accept. But there’s no real consideration. The intended parents might get a baby, and the surrogate can expect to have her expenses covered. All going well, the surrogate is rewarded for her good deed with lots of love and fuzzy feelings. And whilst the parties might intend to enter a legal relationship, the fact is that surrogacy agreements in Australia are not enforceable, other than to ensure the surrogate’s expenses are covered.
So if an altruistic surrogacy agreement is not like a contract, why would you write it as if it were a contract? In most States, a written Agreement is required as evidence of the arrangement, and is a prerequisite for a Parentage Order. There is no requirement for what should be in a Surrogacy Agreement, which means you can include things that are important to you, and leave out things that you do not want.
A good Surrogacy Agreement should be written in good faith to a trusting relationship between the parties. The Agreement might include:
- Recitals – these are background details, such as
- the names, dates of birth and addresses of all the parties;
- details of the reasons why the intended parents need a surrogate;
- details of embryos and who provided the gametes to create the embryos (including details of any donors);
- details of the Clinic and specialist treating the parties;
- that the surrogate and her partner have offered to carry a baby for the intended parents, who have accepted the offer;
- that the agreement is altruistic and that the surrogate will not be receiving any payment for carrying baby for the intended parents.
- Surrogacy Expenses: That the intended parents agree to cover the expenses of the surrogate as determined by the relevant laws in the intended parents’ State.
- Pregnancy and Birth Care: Agreements about pregnancy and birth care, if you have any.
- Termination of Pregnancy: if there are agreements about when a pregnancy may or may not be terminated, you can include them in the Agreement. Remember that having it in writing does not make it enforceable. Many surrogacy teams find it difficult to make a decision about termination until they are faced with such a scenario.
- Details of the counselling that the parties have completed.
- Agreements and understanding that the surrogate has bodily autonomy and can make the final decision about treatment she receives.
- Agreements about registering the child’s birth with a name chosen by the intended parents.
- Parentage Order – statement that the intended parents intend to apply for a Parentage Order after the baby is born and that the surrogate and her partner intend to consent to the application.
- Legal Advice: Statement that each party has obtained independent legal advice.
Some Agreements, particularly ones that look like contracts, are often based on overseas commercial surrogacy arrangements. Remember, this is an altruistic arrangement, and writing an Agreement like a commercial contract will undermine the trust and goodwill between the parties. Things to avoid in a Surrogacy Agreement include:
- Elements that are too prescriptive, such as listing the way the surrogate should or should not behave, or what she can and cannot eat. Many surrogates agree not to drink alcohol during pregnancy; having it in writing does not make it more enforceable but it may serve to make her feel like she’s being micro-managed.
- A termination clause that allows the parties can terminate the Agreement during a pregnancy. The Agreement is not enforceable; a termination clause is unnecessary. It also suggests that if the surrogate ‘breaks’ an agreement (for example, that she won’t drink alcohol), that the intended parents can terminate the agreement for that reason.
- Any clause that provides for the surrogate to reimburse the intended parents if she has a miscarriage due to ‘wanton recklessness’. My clients always find these clauses upsetting and offensive. If you are worried that your surrogate might be reckless or negligent during pregnancy, you should discuss that during counselling and consider not entering the agreement at all. Trust is a crucial element of an altruistic surrogacy arrangement. Even if a surrogate were to miscarry and there was evidence that she was ‘reckless,’ it is unlikely that any Court would order her to reimburse the intended parents for expenses. Remember that the surrogate maintains bodily autonomy and that pregnancy termination is legal in most Australian States.
Surrogacy arrangements are, by their nature, legal arrangements and that’s why lawyers are inevitably involved. But in my experience, lawyers should be a positive influence on the process – helping you understand the consequences of entering into the arrangement, and your rights and responsibilities. The relationships, however, will outlast any legal process. You can set yourself up for a positive experience and a long-lasting relationship by establishing expectations and reaching agreements beforehand.
My final piece of advice, therefore, is to focus on the relationship and trust building, and the counselling, to ensure you have a positive experience. Because at the end of the day, it won’t matter what is written in an Agreement; it is the relationships that are important.
Remember, all parties need to obtain independent legal advice, and nothing here should be seen to replace independent legal advice. If you have questions or need assistance, get in touch with me via the links.