With rapid advances in medicine and technology, increased access to fertility care, and a shift to normalization around assisted reproduction, many are turning to alternative paths to parenthood. One path is ‘surrogacy,’ where an embryo is transferred to a woman to become pregnant and give birth to a child for the intended parents. The embryo used for the surrogacy may be genetically related to the intended parents, or donated genetic material through egg, sperm, or embryo donation. People may seek donated genetic material for a surrogacy or to carry the child themselves. Involving a donor or surrogate in family formation is referred to as “third party reproduction,” and requires parties to navigate complex legal, medical, and social principles.

This article outlines a variety of contracts and legal aspects that may be involved in assisted reproduction.

SURROGACY

• Agency Agreement – A contract between a surrogacy agency for services in looking for a match between a surrogate and parents, and for managing the surrogacy plan. Agency contracts range from full all-in packages, to payments owed based on certain steps and clearances in the surrogacy. Most states do not regulate or license surrogacy or donor agencies, unlike adoption agencies which are licensed and regulated.
• Gestational Carrier Agreement – A contract between the Intended Parents and Gestational Carrier and their partner or spouse that creates a roadmap for the surrogacy plan. Once everyone has signed the Gestational Carrier Agreement, attorneys will submit a Legal Clearance Letter to the fertility clinic to allow them to proceed with the embryo transfer for the surrogacy. Learn more about surrogacy here.
• Escrow Agreement – Manages any funds between parties, such as between the surrogate, agency, and medical providers.
• Insurance Policies – Each surrogacy arrangement will have its own insurance needs. This includes Health insurance for the Child and Carrier, Accidental Death, Loss of Reproductive Organs, Bedrest, and other insurance policies.
• Passport/Visa Services – Support for international families that require additional steps through immigration to return home with their child.

FERTILITY CLINIC & GENETIC MATERIAL

• Consent Agreements – The fertility clinic will have agreements related to consent to any of the fertility treatments for the patient, partner or spouse, and third party involved, such as the donor or surrogate.
• Agreement to Create Embryos – A contract with the intended parents and the clinic to create the embryos, which may be made with their own genetic material, or with donated egg or sperm, either from someone they know, or through the clinic or another organization.
• Egg or Sperm Bank - Intended Parents purchase specific genetic material from an egg or sperm bank.
• Known Donor Agreement - A contract between Intended Parents and a Donor of genetic material (egg, sperm, or embryo), outlining the terms and process of the donation of such genetic material, and future plans for disposition and potential contact. Learn more about embryo donation here. *Like Surrogacy, you may have an Agency Agreement, Escrow Agreement, and various Insurance Policies in a Donor arrangement.
• Embryo, Egg, and Sperm Disposition – If there is cryopreserved genetic material (frozen egg, sperm, or embryos), it is important to articulate what will happen to the genetic material if there is a separation, death, divorce, nonpayment, or other parameters. The disposition plan be included in documents with the clinic or storage facility of the genetic material, in donor agreements, and/or in agreements between the parties.
• Cryopreservation and Storage Agreements – Contracts to store the genetic material, often with the fertility clinic, bank where purchased, or a third-party storage facility, and usually has yearly fees.
• Release of Information – Signed by donor or surrogate to allow for intended parents to have information about the patient from any medical provider involved in their arrangement.
• Provider Specific Requirements – A clinic may require certain contracts based on the situation or procedure, for example they may require a Mock Cycle Agreement be completed before the parties proceed with a mock cycle for medical clearance for a surrogacy. Another example may be if intended parents are paying for medical fees out-of-pocket for a carrier, such as if her insurance excludes surrogacy or they have not confirmed a health policy for her. The intended parents may have an agreement with the doctor’s office to private pay for any services related to the pregnancy.

OTHER CONTRACTS

• Attorney Engagement and Retainer/Fee Agreements – The intended parents are usually responsible for all of the legal fees, and parties would each have engagement agreements with their respective attorneys for a donor or surrogacy situation. Legal fees for assisted reproduction are often flat fee, and may be paid directly by intended parents or through an agency or escrow agent.
• Counseling Sessions – Counseling sessions in third party reproduction are highly recommended and even required depending on the process or state. Intended parents are usually responsible for the cost of any counseling in third party reproduction, which may include separate sessions and a joint session with all parties.
• Consultant or Concierge service – A consultant or concierge service may be used to either help find the right donor or surrogacy match for a family, or to manage their donor or surrogacy arrangement.
• Prenuptial / Postnuptial Agreement – If couples have any stored genetic material, they may consider including the disposition plan for the eggs, sperm, or embryos upon dissolution of their marriage. Learn about genetic material and divorce here.
• Embryo Disposition Agreement – For people that are not married, they may consider having a contract that confirms their intentions surrounding any stored embryos, especially if their intentions differ from what they agreed upon with the fertility contracts.
• Estate Planning Documents & Health Care Directives – It is important to have a Will in place and the appropriate guardianship documents that outline the intentions of any stored genetic material and guardianship for children or anticipated children if going through a surrogacy. Likewise, it is important for a surrogate to provider her healthcare directives to medical providers she is working with during the surrogacy.
• State Specific Attorney - As law surrounding assisted reproduction and parentage is state-specific, contact an attorney in your state from the Academy of Adoption & Assisted Reproduction Attorneys here.

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