The surrogate process of ending the contract is an important surrogacy issue. Discussions on how to conclude the commercial surrogacy agreement must be made prior to a surrogate pregnancy.
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No portion of the ideas and concepts represented on this website should be used as a substitute for your surrogacy attorney’s advice. Make sure you consult your lawyer on all issues regarding surrogacy.
Each surrogacy contract should have a clearly defined ending point.
Surrogacy can be extremely time consuming, and is a great financial expense for the intended parents.
As such, there needs to be clarity on the surrogate process of when the contract may end, to protect both the surrogate and her intended parents.
Delivery of the Child
The most common, and the desired outcome, for the ending of a contract in the surrogate process is the birth of the surrogate baby or babies. Most contracts end within 6-8 weeks of the birth of the child, allowing the surrogate mother to receive medical care following the birth, if needed, at the intended parents’ expense.
If the intended parents and their surrogate mother would like to proceed with a sibling project at a later time, a new contract will need to be created for that journey.
The current commercial surrogacy contract will have ended.
Abortion or Miscarriage
If a surrogate becomes pregnant and later aborts or miscarries the baby, it is usually the end of the contract, unless there is another provision in the contract discussing this possibility.
In order for the surrogate and intended parents to proceed with another transfer, another contract will usually have to be signed.
If the abortion occurs without the intended parents’ consent, the contract needs to clearly state what repercussions, if any, will pertain to the surrogate.
For instance, if the surrogate mother has taken compensation payments from the intended parents, and then aborts the child without their knowledge or approval, she may then be legally obligated to pay back those payments.
Again, a decision to abort a child, no matter what a surrogacy contract may state, will ultimately, legally, be the sole decision of the woman carrying the child. She may, however, face civil and financial consequences for her decision.
After a Transfer
It is important that each surrogacy contract states how many transfers will be attempted before ending the contract through the surrogate process. Without this in place in an agreement, it may be difficult to figure out when a contract has officially come to an end.
If a contract states that three attempts will be made, and then all parties decide to try again a fourth time, a simple amendment to the contract is usually possible.
Walking Away
There are situations where either the surrogate mother or intended parents decide to end the contract early by walking away.
For purposes of the surrogate process, this should be done in writing.
Why does this happen?
Sometimes unexpected financial expenses occur, sometimes one or more parties get cold feet, sometimes red flags make one party feel uncomfortable. There are many reasons why someone would wish to walk away from a commercial surrogacy contract.
In the event that one party decides to walk away from the contract before one of the provided clauses for ending the contract is met, the contract needs to clearly define the consequences.
- If one party decides after one failed transfer that they would like to move on, then what happens?
If a retainer or deposit has been made to the surrogate, the contract needs to state that if the intended parents walk away, the surrogate is entitled to keep the deposit, but if the surrogate walks away, she must give it back. This might be prorated depending on how many procedures were done, or other circumstances.
If no retainer or deposit has been made to the surrogate in advance of the surrogate pregnancy, the contract needs to describe how long the surrogate has to remit expenses to the intended parents, and that they will reimburse her for those. Under no circumstances should a surrogate mother be responsible for any fees paid by the intended parents, except compensation paid to her, if she decides to walk away from the contract before a surrogate pregnancy.
