Attorney Greg Masler of the Law Offices of Gregory S. Masler in California answers common questions about the surrogacy contract.

What does a surrogacy attorney do?

Surrogacy attorneys draft and review the surrogacy contract between the Intended Parents and the Surrogate. The surrogacy attorney also prepares and reviews the Pre-Birth Order documents that are filed with the court to establish parental rights.

What is a surrogacy contract and why is it important?

A surrogacy contract is a legal document that defines the relationship and the responsibilities of the parties within a gestational surrogacy arrangement.

The surrogacy contract will address (but are not limited to) the following:

• Fees and cost reimbursements for the Surrogate
• Medical costs and how they are paid for by the Intended Parent
• Parentage (who will be the legal parent[s] of the child)
• How the escrow account will be managed during the journey

What say does a Surrogate have in the contract negotiations?

The Gestational Surrogate must be sure that the final contract includes language that she is comfortable with before she signs.

The Surrogate’s attorney will consult with the Surrogate prior to her signing to ensure that she is comfortable and familiar with the language included. She will have input on any revisions or additions that she would like added to the contract.

How can a Surrogate protect her privacy?

The privacy of all the parties involved in a gestational surrogacy agreement is critical. The contracts include a confidentiality provision which states very clearly that the Surrogate and Intended Parents should not be sharing the identities of the other party with anyone else without their approval.

Even if the parties are comfortable with each other and have a good relationship, this is something that should be discussed during the drafting of the contract to define how privacy will be protected. 

In the unlikely event of litigation, additional privacy provisions will be included to further protect the privacy of all parties.

The contracts do reflect that any communication between the parties after the birth of the child is voluntary. If either party requests to discontinue communication with the other party after the birth, that will happen.

What happens if a Surrogate or IP doesn’t follow the contract?

As with any breach of contract, the parties may sue each other. This is extremely rare. Should any of the contract terms be breached by either party, they could be subject to litigation.

What happens if a Surrogate’s marital status changes?

If a Surrogate is unmarried at the time she signs the surrogacy contract and then gets married during the surrogacy arrangement, she must let the agency and attorney know as soon as possible. The attorney will inform the Intended Parents’ attorney and the Surrogate’s spouse must be added to the contract. 

The Surrogate’s spouse must also be included in the Pre-Birth Order (PBO ) documents that establish parentage in order to state that he or she is also NOT the legal parent of the baby.

If the Surrogate is in the process of divorcing, she must let the agency and attorney know as soon as possible. It is critical that the spouse signs the PBO documents that are filed with the court.

What happens if there are complications during a surrogacy journey?

If there are complications during the pregnancy, the surrogacy contract will reflect exactly how the Surrogate will be taken care of and how these issues will be addressed.

If the Surrogate has any questions during the drafting of the contract regarding compensation in the event of any complications and who will be responsible, she should bring this up during her consult with the attorney.

Can a Surrogate decide to keep the baby?

No. Under California law, the Surrogate cannot decide to keep the baby.

The contract and California state law reflect that the Intended Parents are the legal parents of the child and the intent of the parties, with respect to parentage, is what rules.

What happens after the Surrogate signs the contract?

After completing the medical process with their attorney, the Surrogate will be scheduled with the IVF clinic to begin their medication protocol and establish a calendar for their embryo transfer.

In the state of California, the medical protocol cannot begin until the surrogacy contract is in place.

Whose name goes on the birth certificate?

The Intended Parents’ names will appear on the birth certificate. This is addressed in the contract.

Later, during the PBO phase, the attorneys will file documentation around the 25th week of gestation to begin the process of finalizing parentage for the child.

What contact will the Surrogate have with the IP after delivery?

Contact between the Surrogate and Intended Parents after delivery is completely voluntary. The contracts reflect that the parties can decide on their own if they wish to remain in contact with the other party after delivery.

View the all interviews with Greg Masler HERE

If you are considering surrogacy, please contact GSHC Surrogacy Agency by completing our Surrogate Intake Form, call us at 310.953.0137, or send an email to [email protected] to learn more about how we can help you achieve your dream of starting a family!