What should you include in your surrogacy agreement?

A surrogacy agreement is a document that intended parents and surrogates can put together to outline their agreement. It helps everyone, intended parents, surrogates and anyone supporting surrogates, to be really clear about the basis of the surrogacy agreement, the approach that everyone is going to take.

Most importantly, it lays out in detail how key decisions will be made during the course of your surrogacy, from payments to health changes and through to birth.

As a surrogate or intended parents, you will want this to reflect the main issues that you will be faced with and how the mechanics of your arrangement will be made. Below we look at what you might include in the agreement, based on its use on your journey.

When and why you need a surrogacy agreement

Note: Surrogacy agreements are not legally binding

Firstly, it is important to note that a surrogacy agreement is not legally enforceable. However, it will assist with the details of your particular surrogacy arrangement and show the clear intentions of all involved.

Despite surrogacy agreements not being a legally binding document, there will be times on your surrogacy journey when you may need to show or use your agreement.

Using your surrogacy agreement

There will be instances where 3rd parties may want to see your agreement, or would find it beneficial to see you agreement and thereby better understand the somewhat unique situation that is surrogacy.

Outside of your intended parent and surrogate (plus support) team, those who might request your surrogacy agreement include:

• Clinics – If you are working with a clinic, your clinic may want to see a copy.
• Hospitals – Some hospitals will want to see this as part of your birth planning preparations to help inform them of how they can support you when birthing and delivery takes place.
• CAFCASS – When intended parents apply for their parental order your CAFCASS officer may wish to see a copy. You can find more information in our guide to birth registration and parental orders.

Additionally, you may refer to your surrogacy agreement in the highly unlikely event there is a falling out between surrogate and intended parents. At this point the document will be useful at any ensuring court application as it will show what was intended by the parties involved. Again, it is not a legally enforceable document but is exceptionally useful to have should there be a breakdown.

Key points for your surrogacy agreement

The key elements of your surrogacy agreement should reflect your unique agreement. You can expect your agreement to be very different to others. A template can be useful to follow, but make sure that you don’t overlook anything that might be important specifically for you and your circumstances.

As a starting point, we suggest including:

• Full details of everyone involved including any supporters and their roles.
• Conception arrangements including embryos and clinic details. Including information on any specific tests or grading that is appropriate, number of transfers and any particular key treatment considerations.
• Decisions and commitments around the pregnancy, including who will attend scans and other antenatal appointments.
• How you would all approach difficult scenarios, such as decisions around termination and if there was a stillbirth. This will inevitably be a difficult conversation to have but sharing your collective approach early on will help you navigate through this should it happen.
• What you all agree around the birth, including who will attend and under what circumstances – This will also help to inform your birth plan.
• What is likely to happen post birth, and what everyone’s expectations are around contact in the long term.
• Crucially you will want to outline everyone’s understanding of the Parental order process and everyone’s commitment to it.
• A clear outline of expenses, how and when they will be paid and also any circumstances that might affect additional payment. If you need help, check out our realistic surrogacy budget guidelines.

How BB helps with surrogacy agreements

If you are working with BB, then we will help you with your surrogacy agreement through a series of mediated meetings as well as a helpful template document that is only available to our BB intended parents and surrogates.

Expenses will already have been established before your match, but there will always be details that you may well want to explore, and so having the advice and support of someone outside your arrangement can help you bring these forward and work through them to everyone’s satisfaction.

The important thing is that you talk about it all and the agreement is there to capture everyone’s understanding and expectations and will minimise anything being misinterpreted.