Surrogacy is a significant dedication an individual can make. For most intended parents (IPs), it might signify the end of a journey of loss and infertility. As a surrogate, you are opening your body, heart, and life to help a family grow. The arrangement requires trust and protection from every party. A common concern among surrogate mothers is whether the IPs can back out and leave the infant. The surrogacy contract is a legally binding agreement between the parties entered into before medical procedures occur. After signing, the agreement is enforceable, and IPs cannot back out without repercussions. Working with a qualified surrogacy agency can help you reduce possible risks. We can guide and support you to ensure you are protected as you start the surrogacy journey.
Why Might the Intended Parent Want to Change Their Mind?
Although the intended parents rarely backed out, there are circumstances that could prompt them to reconsider their decision.
Relationship Breakdown or Marriage Dissolution During the Pregnancy
The sugarocracy contract includes a clause stating that the parties remain lawfully liable for the minor, regardless of changes in the relationship.
Financial Challenges Along the Journey
Any financial crisis or job loss can put pressure on you. It is the primary reason an escrow account is necessary before medical procedures start. The pregnancy-associated costs and the surrogate compensation are held and funded independently. In other words, your financial safeguards as the surrogate do not rely on the IPs' capability to make payments for a certain duration.
Medical News and Reports about the Infant
A prenatal diagnosis might occasionally prompt the IPs to change their decision. Even in this situation, the intended parent remains lawfully accountable for their child. The surrogate agreement does not permit the intended parent to abandon their child or pregnancy due to medical findings.
A seasoned, qualified surrogacy agency transfers PGT-A-tested embryos that have been genetically screened before transfer. It reduces the risk of unexpected chromosomal diagnoses and significantly improves the initial transfer success rate.
Is It a Common Phenomenon for the IPs to Back Out of Surrogacy
It happens rarely.
By the time an intended parent starts the surrogacy journey, they have spent years undergoing infertility treatment, made significant financial and emotional investments, and encountered pregnancy loss. Surrogacy is the last resort for many IPs.
An intended parent who reaches the matching phase has already passed their surrogacy agency screening, is financially devoted to the process, and has finished psychological analysis. That degree of investment makes changing the mind highly unlikely.
What Occurs If the Intended Parent Withdraws Before the Embryo Transfer
If the intended parent decides to abandon the surrogacy plan before medical procedures start, they incur the financial fallout. Typically, costs incurred, including legal fees, surrogacy compensation for psychological evaluations and screening, and agency fees, are nonrefundable. You, the surrogate, will not lose the money you have already made.
What Occurs After the Surrogate is Expectant
After the pregnancy is verified, the financial and legal responsibilities of the IPs become more binding. The fact that the IPs changed their minds means they cannot terminate the contract. They remain lawfully accountable for the pregnancy, medical expenses, parental entitlements to the minor, and the surrogate's compensation.
How a Surrogacy Contract Can Safeguard You When the Intended Parents Back Out
After a surrogate and intended parents have matched and feel it is time to proceed, it is easy to get the medical procedures as promptly as possible. While the urgency is understandable, you should follow the legal process to avoid creating risk for the parties involved.
Before the embryo transfer, the IPs and the surrogates consult with their lawyers to draft and negotiate a practical surrogacy contract. It is a collaborative process in which the IPs and their lawyer first draft the agreement, then send it to you and your lawyer for analysis and correction. The legal counsel continues to collaborate until everyone is satisfied.
Every party should have their own lawyer. Every lawyer's responsibility is to protect their clients' interests and ensure the agreement is fair and balanced. Without different legal counsel, the involved parties will be forced to negotiate with each other, something that would jeopardize the relationship before the surrogacy journey starts.
The parties should sign the contract before the medical procedures begin. Fertility clinics do not continue with the embryo transfer process until the contract is signed, a requirement that protects the parties and the surrogacy facility.
A standard surrogacy contract should include the following:
- The surrogate compensation and payment schedule — it comprises your compensation and additional payments for an invasive procedure, carrying at least one child, and bed rest.
- Liability and risks—The agreement should define which party should carry a given risk and how accountability will be handled should complications arise.
- Your health responsibilities—they entail your commitment to limiting alcohol and drug use, prenatal care, and dietary choices.
- Agreement on sensitive decision—You should agree on sensitive topics like selective reduction and pregnancy termination before the surrogacy journey starts.
- Delivery and prenatal appointment access
The contract should also specify what occurs in rare events that the intended parents relocate, die, or divorce during the surrogacy pregnancy. Nothing should be left to assumption.
Please note that every surrogacy contract is unique. The agreement should address each party's concerns and preferences. For instance, the IPs should clarify their involvement during prenatal appointments, the degree of ongoing agreement with you after the delivery, and how communication will be handled throughout the process. On the other hand, you might prefer firm and negotiable provisions.
It is recommended to work with a seasoned, qualified reproductive law lawyer who can draft an agreement tailored to your situation. The specificity makes the contract protective in the event of anything unexpected.
Proving the IPs are the Child's Legal Parents
The second stage of your surrogacy process is proving that the IPs are the child's legal parents before birth. It occurs via a prebirth order, a court filing that permits the health facility to discharge the infant to their intended parents. According to California Family Code sections 7960–7962, after the prebirth order has been issued, you do not have parental duties or rights, and the IPs cannot disclaim their parental responsibilities or rights.
The standards for bringing the pre-birth order involve the following:
- A doctor's affidavit verifying that the surrogacy agency transferred the embryos to you
- Psychological and social assessments of the intended parent and the surrogate
- A document you and your spouse have signed relinquishing claim to the infant following delivery
How an Escrow Protects the Surrogate
In surrogacy, an escrow is a dedicated payment account held by a third party until the surrogate and IPs meet the agreed-upon terms and conditions. They might incur health insurance policies, legal fees, reimbursements, and surrogate compensation.
Escrow is more than a bank account. It is tied to payment guidelines, documentation requirements, and a legal agreement. The motive is to streamline payments for the involved parties.
The payment schedule should be written in your contract. Although payments are tied to payments, the amount and timing rely on the state law, clinic time, case facts, and your contract.
For a surrogate, the escrow is more than being paid. It is about protection and assurance throughout the process. Here is how:
- Funding before embryo transfer — The escrow arrangement will ensure the IPs have funded the escrow account before the embryo transfer.
- Meeting the minimum balance requirement—The escrow account should never fall below a certain amount during your pregnancy. The requirement prevents the uncomfortable case where you continue medical attention and make life changes to support the pregnancy, only to discover that IPs have delayed payments or payments are disputed due to low balances.
- The escrow should remain open for a year following the delivery. It ensures that if complications, reimbursements, or postpartum costs arise, you are not left at the mercy of the IPs or chasing down your payment.
Steps Your Surrogacy Agency Can Take to Protect You
Seasoned surrogacy agencies have built safeguards into all stages of the surrogacy journey. These measures are as follows:
- Physician-led screening for intended parents—The agency will also screen IPs for medical readiness before matching. It filters out unprepared or uncommitted IPs before the surrogate meets them.
- Independent attorneys—All surrogates have their own independent lawyers paid by the IPs. The attorney will review the surrogacy contract and ensure protective clauses are in place before medical procedures start.
- Round-the-clock coordinator access—Seasoned surrogacy agencies have multilingual coordinators who can answer your questions or address your concerns about the contract, payments, and the IPs.
Find a Competent Surrogacy Agency Near Me
Surrogacy is a labor of love. It involves creating families, honoring the gift a surrogate gives to the world, and supporting dreams. However, it is a process that involves financial and legal arrangements and requires considerable caution. Bliss Surrogacy Los Angeles can guide you on ways to protect your interests and finances, including having a contract and answering your questions in a timely manner. Please contact us at 310-218-1110 to schedule your initial consultation and learn how we can assist you.