Surrogate Mothers: Unexpected Circumstances – Discussing the “What If’s” in a Commercial Surrogacy Contract

All surrogate mothers and intended parents need to cover the possibility of unexpected circumstances happening in their commercial surrogacy agreement.

Though rare, anything can happen in surrogate pregnancy.

Make sure your surrogacy lawyer includes these details.

As you enter into a commercial surrogacy agreement, it is important to discuss issues that might affect both surrogate mothers and the intended parents if the worst should happen.

Though these circumstances are very rare, and will likely not happen, they still need to be addressed in a surrogacy contract.

Life Support

In the event that the surrogate has some sort of accident during the surrogate pregnancy, which causes her to be put on life support, a decision needs to be made as to what to do. How comfortable is the surrogate with the idea of staying on life support until the fetus is viable, if such were to happen?

Whereas this situation is unlikely, it is important that all parties discuss the possibility and arrive at an understanding in the contract phase. Keep in mind that such a situation would affect the surrogate mother’s family and children as well as the intended parents.

  • Will the surrogate immediately be pulled off life support, causing her death and the death of the fetus?
  • Will she want to remain on life support until the fetus is born?
  • Will she have a cut off, such as a month or two, meaning that if the baby can become viable within 60 days she is willing to remain on life support, but if it is more than 60 days she would rather be pulled off of life support?

These are important issues that both the surrogate mother, her family, and the intended parents might not have previously thought of. Under no circumstances should the intended parents be named power of attorney over the surrogate’s life. Her spouse, parents, or partner should retain that right, exclusively.

It is important that the surrogate prepares a living will specifically for the surrogate pregnancy so that if something happens, it is documented what she desires. Without such a document, it is important to note that her power of attorney, whomever she named as such, will still have the final decision as to when to take her off life support, regardless of what a civil surrogacy contract may state.

Death of Intended Parents

Another topic that is rarely discussed is the what happens if the intended parents unexpectedly pass away prior to the birth of their child. If the intended parents die before the baby is born, it will be necessary to have clear instructions on who is to parent the child.

Of course, if one intended parent were to die, then the other parent would automatically be the caregiver, but if both parents were to die unexpectedly, another party would need to accept responsibility.

It is important that whomever the parents have chosen for this task be listed in the contract, along with clear contact information for this person. Clear contact information is especially important in long distance and international arrangements.

Please note:
Some intended parents choose to keep the surrogacy a secret from their extended family and friends, at least for a while. This may be done because they have faced multiple miscarriages or stillborn babies, and do not wish to get their hopes up, or the hopes of their family and friends. It is important that the person they have chosen to act as legal guardian for their unborn child is aware of the commercial surrogacy, should such a situation occur.


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