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Sample GS Contract


PLEASE NOTE:  The following contract is for reference only and is simply an example of the way a surrogacy contract might be worded.   We are providing this document to assist you in drafting your own agreement.  This contract is not intended to replace the advice of your surrogacy attorney.  Please consult an attorney who is familiar with the surrogacy laws in your state for assistance in drafting your surrogacy agreement.

 

(All About Surrogacy accepts no liability for providing this document.)

 


Agreement is made this ________day of ________, _____ by and between _________________ (hereinafter referred to as ASurrogate@), _________________ (hereinafter referred to as Surrogate's Husband@), _________________ hereinafter referred to as AGenetic Father@), and _________________, (hereinafter referred to as AIntended Mother@).

The term ASurrogate@ refers to the woman who will undergo an embryo transfer procedure utilizing an embryo(s) created with the sperm of the Genetic Father and the egg(s) of a designated Egg Donor (not a party to this Agreement), and carry said embryos to term for birth and delivery to the Genetic Father and Intended Mother.  The term AGenetic Father@ refers to the sperm donor whose sperm will be used to fertilize the eggs of a designated Egg Donor (not a party to this Agreement), to create embryos to be transferred to the Surrogate.  The term AIntended Mother@ refers to the wife of the Genetic Father.  The term AChild(ren)@ means each Child(ren) born to the Surrogate pursuant to the terms of this Agreement. 

This Agreement is made with reference to the following facts:

1.          The Genetic Father is a married individual over the age of eighteen (18) years who is desirous of entering into the following Agreement.

2.          The Genetic Father desires to have a child who is biologically related to him.

3.          The Intended Mother is incapable of conceiving or carrying a pregnancy to full term, or has been advised by a physician that a pregnancy would be dangerous to her health and/or the health of any child(ren) she may conceive.

4.          The Surrogate is a married individual over the age of eighteen (18) years who is desirous of entering into this Agreement.

5.          The Surrogate and Surrogate's Husband are a married couple willing to relinquish custody of a child(ren) born to the Surrogate for the benefit of and upbringing by the Genetic Father and Intended Mother.

NOW THEREFORE, in consideration of the mutual promises contained herein and with the intention of being legally bound hereby, the Parties agree as follows:

SECTION I

PURPOSE AND INTENT

The sole purpose and intent of this Agreement is to enable the Genetic Father and Intended Mother to have a child(ren) by means of the Genetic Father fertilizing in vitro an ovum from a designated Egg Donor (not a party to this Agreement) and to transfer and implant said embryo(s) into Surrogate, who agrees to carry the embryo(s) to term and relinquish custody of the Child(ren) born pursuant to this Agreement to the Genetic Father and Intended Mother.

The Surrogate intends to carry the Child(ren) of the Genetic Father to term and thereafter deliver the Child(ren) to the Genetic Father and Intended Mother, as legal, biological and natural parents, a Child(ren) to the fullest extent she is capable of doing so.

It is the Parties' intention to try up to three (3) embryo transfer attempts.  Further, it is the Parties' intention to transfer a maximum of three (3) embryos per attempt, or the number of embryos recommended by a physician, over a period of one year.  If the contemplated pregnancy has not occurred after the third transfer attempt, this Agreement may be terminated by any party giving written notice to all Parties, and the treating physician. 

In the event of any claim or dispute between the Parties concerning the transactions contemplated by this Agreement, it is the desire of the Parties that their mutual intentions, as reflected in this Agreement, control the disposition of such dispute. 

 

SECTION II

REPRESENTATIONS

 

Genetic Father and Intended Mother represent that they are a married couple, each over the age of eighteen years, who desire to enter into this Agreement.  Genetic Father further represents that, to the best of his knowledge, he is capable of producing semen of sufficient nature for in vitro fertilization and subsequent embryo transfer into Surrogate.

The Surrogate represents that she is married at this time, and desires, along with her husband, to enter into this Agreement.

The Surrogate represents that she is over the age of eighteen years, and that she desires to enter into this Agreement for the reasons stated above, and not for herself or her husband to become the parent of any Child(ren) conceived by Genetic Father and a designated Egg Donor (not a party to this Agreement).  The Surrogate further represents that she has made an informed decision to enter into this Agreement.   Said decision has been made after careful consideration and counseling with respect to all aspects of each issue involved in this Agreement.  The Surrogate further represents that she enters into this Agreement voluntarily, and in the absence of economic or emotional duress of any kind, and that she enters into this Agreement of her own free will.

The Surrogate further believes that she is capable of conceiving and carrying normal healthy children to term, but agrees that neither she nor her husband is desirous of forming and  will not form or attempt to form a parent-child relationship with any Child(ren) she may bear pursuant to the provisions of this Agreement, and that they shall freely and readily, in conformance with applicable statutory regulations, terminate all parental rights to said Child(ren) pursuant to this Agreement.

The objective of this Agreement is for the Surrogate to carry and deliver the biological Child(ren) of the Genetic Father.  This objective will be accomplished through medical procedures using assisted reproductive technology.  Specifically, these procedures included the retrieval of an ovum(s) from a designated Egg Donor (not a party to this Agreement), in vitro fertilization of the ovum(s) with Genetic Father's sperm, and future implantation of the embryo(s) into the Surrogate.

At birth, the Surrogate and Surrogate's Husband will relinquish the Child(ren) to the Genetic Father and Intended Mother, and the Genetic Father and Intended Mother will assume all parental rights and responsibilities for the Child(ren) from that time forward.  Genetic Father acknowledges paternity of the Child(ren) to be conceived and agrees to have his name listed on the Child(>s)(rens) birth certificate(s).  Surrogate will comply with all legal actions necessary to have the Intended Mother's name placed on the birth certificate.

Following, and to the extent requested before the birth of the Child(ren), the Parties will each sign documents and do whatever acts are necessary to fulfill the intent of the Parties, and to make the Genetic Father and Intended Mother the actual and legal parents of the Child(ren).

The Surrogate and Surrogate's Husband represent that they will freely, readily, and within a reasonable period of time after the execution of this Agreement and after the birth of the Child(ren) effectuate the intent of this Agreement, and take all necessary legal actions to permanently terminate any  parental rights to the Child(ren) pursuant to this Agreement, and to assist in effecting the objective and intent of this Agreement and ensure the custodial placement of the Child(ren) with the Genetic Father and Intended Mother.  The Surrogate and Surrogate's Husband will enter into any Consent Agreements with respect to Genetic Father's and Intended Mother's custody and parentage of the Child(ren).

The Surrogate and Surrogate's Husband represent that they believe the Child(ren) conceived pursuant to this Agreement is morally and contractually that of the Genetic Father and Intended Mother, and should be raised by the Genetic Father and Intended Mother without any interference by the Surrogate and/or Surrogate's Husband and without any retention or assertion by them of any parental rights.  The Surrogate and Surrogate's Husband agree that as soon as is medically possible, institute or participate in proceedings in the State of Ohio or other jurisdiction required to terminate their respective putative parental rights.  Subsequent to the birth of the Child(ren), all Parties agree to voluntarily participate in any blood testing necessary to conclusively legally determine the paternity of the Child(ren), as ordered by a court or requested by either Party.

Genetic Father and Intended Mother have employed the services of *Agency's Name* to assist them in the egg donation aspect of this Agreement.  It is understood that *Agency's Name* is not a party to this Agreement.

As it relates to the provisions of this Agreement, Genetic Father and Intended Mother agree to indemnify, defend and hold harmless the Surrogate and Surrogate's Husband from and against any and all causes of action, suits, claims, losses, damages, costs and expenses (including, without limitation, attorney fees, court costs and litigation expenses) suffered or incurred by either Surrogate or Surrogate's Husband as a result of or in connection with the participation, involvement or activities of either *Agency's Name* (not a party to this Agreement) or the designated Egg Donor (not a party to this Agreement).

 

SECTION III

COMPLIANCE

 

All Parties warrant that all information provided to medical professionals for the purpose of the intent and objective of this Agreement is true and accurate to the best of their knowledge, and that no information is or will be omitted, falsified, embellished or altered for their own benefit or to mold compliance with any term of this Agreement. 

Psychological Examinations

Surrogate, Surrogate's Husband, Genetic Father and Intended Mother shall have psychological testing to the extent their medical advisors determine such testing necessary prior to the transfer and implantation of said embryo(s) to the Surrogate.  All medical and psychological information shared pursuant to this Agreement, shall remain confidential and shall be disclosed only to the Parties to this Agreement.  The Parties understand that a Court may permit or require access to this information after the birth of the Child(ren), if necessary for the best interest of the Child(ren).

The Surrogate and Surrogate's Husband expressly waive their privacy rights to psychological information provided they are notified in advance as to what and when such information is to be disseminated.

 

Physical Examinations

Surrogate and Surrogate's Husband shall have medical examinations, blood and other tests as determined by Genetic Father and Intended Mother and their advisors.  The Surrogate and Surrogate's Husband expressly waive the privilege of confidentiality and permits the release of any reports or information obtained as a result of said examinations to Genetic Father and Intended Mother provided they are notified in advance as to what and when such information is to be disseminated.

Genetic Father and Intended Mother shall have full access to the results of testing conducted to detect the presence of any diseases that may be indicated by the Surrogate's or Surrogate's Husband's personal and family history, including testing for sexually transmitted diseases and Rh factor compatibility.

Prior to the embryo transfer, Surrogate, Surrogate's Husband and Genetic Father shall undergo a physical examination under the direction of and in the sole discretion of a physician(s) designated by and acceptable to the Parties to determine whether the physical health and well-being of all Parties to this Agreement is protected.  Said examination shall include testing for venereal diseases, including HIV and AIDS, in order to protect the health of the Surrogate and Child(ren).  The Parties agree to undergo any necessary medical testing that a designated physician deems necessary while this Agreement is in effect.

 

Sexual Intercourse by Surrogate

Surrogate agrees and promises that she will not have sexual intercourse with anyone from the first day of her menstrual cycle before the embryo transfer until the date that pregnancy has been confirmed in writing or otherwise by the physician conducting the embryo transfer.  Surrogate further agrees that she will not engage in any activity in which there exists a possibility that semen could be introduced into her body, such that the possibility of a pregnancy, other than one contemplated by this Agreement, could occur.

The Surrogate further agrees that she will not have unprotected intercourse with anyone other than her husband during the term of the pregnancy, and will use her best efforts to protect the fetus(es) from any and all communicable and venereal diseases.

 

SECTION IV

DUTIES OF SURROGATE

 

The Surrogate agrees to comply to the best of her abilities with all medical instructions given to her by her physician and obstetrician, and any other medical professionals involved with the objective and intent of this Agreement.

The Surrogate agrees to follow a prenatal examination schedule as prescribed by her independent obstetrician, as well as to adhere to and follow all requirements of  her treating obstetrician and physician, such as taking medication and vitamins.  The Surrogate agrees to submit to any medical tests or procedures deemed necessary or advisable by her obstetrician and/or physician, including, but not limited to, amniocentesis.  The Surrogate agrees to submit to amniocentesis at the request of the Genetic Father and Intended Mother.

The Surrogate agrees not to participate in dangerous sports or hazardous activities, and not to knowingly allow herself to be exposed to radiation toxic chemicals or communicable diseases.  

The Surrogate agrees not to smoke any type of cigarettes, drink alcoholic beverages or excessive caffeinated beverages, or to use any illegal drugs, prescription or non-prescription drugs without the written consent of her physician and/or obstetrician.

The Surrogate agrees not to travel outside of the United States of America after the second trimester of the pregnancy, with the exception of the event of an extreme illness or death in the Surrogate's family and only upon the written consent of her physician and/or obstetrician. 

 

SECTION V

CUSTODY

 

Gender:  Genetic Father and Intended Mother agree to accept custody of any and all Child(ren) born pursuant to this Agreement, regardless of gender, number, health, physical condition, psychological condition, premature or full term. 

The Surrogate and Surrogate's Husband agree to relinquish all claims to parental rights and custody of the Child(ren) born pursuant to the terms of this Agreement immediately after the birth of said Child(ren), and enter into any Consent Entry or Judgment with respect to paternity, custody, and/or step-parent adoption of said Child(ren). 

The Surrogate and Surrogate's Husband further agree that Genetic Father and Intended Mother shall select the name(s) of the Child(ren), and that any birth certificate(s) issued through the medical facility in which the Child(ren) is born shall reflect the name(s) chosen by the Genetic Father and Intended Mother. 

The Surrogate and Surrogate's Husband agree to make no attempt to contact or maintain communications with the Child(ren) born pursuant to this Agreement, or with any member of the stated Parties' families subsequent to the birth of the Child(ren) without the Genetic Father or Intended Mother's prior written approval.  Further, Surrogate and Surrogate's Husband agree that they will not intervene or interfere with the upbringing of the Child(ren), or in the lives of the Genetic Father, Intended Mother and Child(ren), unless otherwise agreed in writing and signed by all Parties. 

In the event that custody of the Child(ren) is awarded to the Surrogate or her family, or any individual or organization not related to the Genetic Father, by any court decision or otherwise, the Genetic Father shall be indemnified by the Surrogate for any and all moneys he is required to pay for child support or medical procedure related expenses pursuant to any court order, and shall be entitled to immediate reimbursement from the Surrogate for all allowable reasonable and actual expenses paid by the Genetic Father and Intended Mother to the Surrogate pursuant to this Agreement or expended on behalf of the Surrogate. 

In the event that the Genetic Father predeceases the birth of the Child(ren) or anticipated Consent Entry or Judgment with respect to paternity, custody and/or step-parent adoption of the Child(ren), said Child(ren) shall be placed in the custody of the Intended Mother with full intent to proceed with all legal avenues to ensure Intended Mother becomes the custodial parent of the Child(ren). 

In the event that the Intended Mother predeceases the birth of the Child(ren) or anticipated Consent Entry or Judgment with respect to paternity, custody and/or step-parent adoption of the Child(ren), said Child(ren) shall be placed in the custody of the Genetic Father.

If both the Genetic Father and the Intended Mother are deceased or incapacitated, the Child(ren) shall be placed according to the provisions of the following paragraph. 

________________________of (city), (State) shall be the guardian of the Child(ren) and take custody of the Child(ren) upon the birth of the Child(ren).  In the event that both Genetic Father and Intended Mother predecease the birth of the Child(ren), the terms of this Agreement shall be carried out to the fullest extent possible, and all parties shall abide by the requests set forth in Genetic Father's and Intended Mother's wills.

In the event of the Genetic Father and Intended Mother's premature demise prior to the Child(>s)(rens) birth and the completion of the contemplated legal proceedings as herein set forth, _____________ of (city), (State), shall be responsible for all of the arrangements for the Chid(ren).  Further, any Child(ren) born pursuant to this Agreement shall have all testamentary and inheritance rights from the Genetic Father and Intended Mother as a natural Child(ren), and shall have no testamentary or inheritance rights from the Surrogate.

 

SECTION VI

BIRTH, ABORTION, SELECTIVE TERMINATION AND DEATH OF THE FETUS(ES)

 

Birth

The Surrogate shall give birth at _________________ Hospital in (city), (State).

 

Abortion

The Parties recognize that the Surrogate has the constitutional right to abort or not abort the pregnancy, however, the Parties intend to conform, to the best of their ability, to the following terms of this Agreement.

An abortion procedure shall not occur beyond the twentieth (20th) week of pregnancy, unless a medical doctor, the treating physician or Surrogate's obstetrician, or some other medical professional states that such action is necessary to avoid serious risk of harm and/or death to the Surrogate.

The Surrogate waives any rights she may have to abort the pregnancy, except for medical reasons verified by a physician chosen by the Genetic Father and Intended Mother, or some other independent physician or obstetrician, not already involved with the Surrogate's pregnancy, and/or if such action is necessary to avoid serious risk of harm and/or death to the Surrogate.  If the fetus(es) has been determined by any designated physician to be physically or psychologically abnormal, the decision to abort the pregnancy or not to abort the pregnancy shall be the sole decision of the Genetic Father and Intended Mother. 

The Surrogate agrees to accept a clinical abortion under the circumstances stated in the foregoing paragraphs.  However, in the event that the Surrogate refuses to proceed with a clinical abortion, Surrogate agrees to the termination of all expenses under Section IX of this Agreement.  Further, Genetic Father and Intended Mother shall not be responsible for those medical expenses incurred by the Surrogate due to unforeseen complications of which would have been avoided had an abortion occurred.  Furthermore, in the event that the Surrogate refuses to proceed with a clinical abortion, all further performance required by the Genetic Father and Intended Mother under the terms of this Agreement is excused.

Genetic Father and Intended Mother agree that if a medical emergency occurs affecting the Child(ren) where either the Genetic Father or Intended Mother cannot be contacted, the decision with respect to the course of action to be taken shall be left to the treating physicians and/or obstetrician, with no liability to the Surrogate.  All medical costs and expenses not covered by the Surrogate's health insurance policy will be the responsibility of the Genetic Father and Intended Mother for such procedures.  However, all reasonable efforts shall be made to contact Genetic Father and Intended Mother prior to termination of the pregnancy.

The Surrogate agrees not to abort the fetus(es) upon her own discretion, or against the medical advise of a medical professional.  If the Surrogate seeks a termination of the pregnancy without the consent of the Genetic Father and Intended Mother, or without the advice of a medical professional, the Surrogate agrees to reimburse the Genetic Father and Intended Mother a sum of money equal to all expenses already paid by the Genetic Father and Intended Mother, including but not limited to, all legal and medical expenses with respect to this Agreement.

If the Surrogate undergoes an abortion with medical consent and consent of the Parties, she will be entitled to the amount of expenses accrued corresponding to the length of the pregnancy. 

 

Selective Termination

In the event that the embryo transfer results in three (3) or more fetuses, the Parties to this Agreement may agree to fetal reduction in order to reduce the number of fetuses.  Surrogate's refusal to selective reduction, so long as, in the opinion of the Surrogate's obstetrician, said reduction will not endanger the health of the Surrogate or the remaining embryos, as provided herein, constitutes a breach of the Agreement by Surrogate. 

Surrogate agrees that she will not undergo fetal reduction without the express written consent of the Genetic Father and Intended Mother, except where such procedure is necessary to prevent serious physical harm of the Surrogate.  Consent of all Parties shall not be unreasonably withheld.

All Parties understand that in light of applicable controlling law regarding a woman=s right to an abortion, the Courts may determine that any promise that purports to limit that right may be unenforceable. 

 

Death of the Fetus(es)

The Parties agree that if the fetus(es) die prior to the 24th week of pregnancy, this Agreement shall terminate, with no further obligations or duties of performance by any party, except as provided for by way of terms of actual incurred expenses.  Genetic Father and Intended Mother agree to remain liable for medical costs incurred to the date of such death pursuant to the terms of Section IX, and shall hold the Surrogate harmless from liability for said death, unless the death of the fetus(es) is caused by the Surrogate's own wanton recklessness, failure to comply with the terms of this Agreement, failure to reasonably follow all prescribed medical regimens, or other conduct intended to harm the fetus(es).

In the event of the death of the fetus(es) subsequent to the 24th week of pregnancy, Genetic Father and Intended Mother will continue to pay expenses pursuant to the terms of this Agreement for a six (6) week recovery period, and agree to hold the Surrogate harmless from liability for said death, provided the death of the fetus(es) is not caused by the Surrogate's own wanton recklessness, failure to comply with the terms of this Agreement, failure to reasonably follow all prescribed medical regimens, or other conduct intended to harm the fetus(es).

 

SECTION VII

ASSUMPTION OF THE RISK

 

Surrogate and Surrogate's Husband understand and agree to assume all risks involved in the anticipated medical procedures, and to hold Genetic Father and Intended Mother, and all other Parties involved in the execution of this Agreement (excluding medical professionals), harmless against all risks.  Surrogate and Surrogate's Husband represent that they have consulted with a physician or surgeon of their choice, and are aware of all medical risks, including, but not limited to, death, disability, the inability to have children, discomfort, lost wages, multiple births, Cesarean Section delivery and bed rest, which may result from the conduct contemplated by this Agreement.

Genetic Father and Intended Mother have been advised of all possible risks of abnormalities and/or birth defects of children born to healthy women.  Notwithstanding the language of Section VI, Genetic Father and Intended Mother agree to take custody of, and assume legal and parental responsibility for any Child(ren) immediately after the Child(rens) birth, regardless of whether the Child(ren) suffers from any congenital or other abnormalities or defects.  Surrogate and Surrogate's Husband shall be held harmless from delivering a Child(ren) with abnormalities or defects as long as the Surrogate has not breached the terms of this Agreement.

 

SECTION VIII

SELECTION OF PHYSICIANS AND COUNSELOR

 

Genetic Father and Intended Mother shall select a physician(s) to conduct examinations, both medical and psychological, to order and review medical and blood tests, and perform all necessary tests and procedures.

The Surrogate shall execute all necessary medical releases for the benefit of Genetic Father and Intended Mother.

Genetic Father and Intended Mother shall have full access to all medical records of Surrogate for information with respect to the intent and objective of this Agreement.

 

 

SECTION IX

PAYMENT OF CERTAIN ACTUAL AND REASONABLE EXPENSES

 

This Agreement provides for certain actual and reasonable expenses to be paid on behalf of the Surrogate and Genetic Father and Intended Mother.  Such payments are not in any way to be construed as payment for the Child(ren).  Such actual and reasonable expenses are as follows:

 

Surrogate's Living and Medical Expenses B Responsibility of Genetic Father and Intended Mother

 

1.          Surrogate's Living Expenses:  

(a)      Genetic Father and Intended Mother shall pay for certain Living Expenses of the Surrogate subsequent to the confirmation of pregnancy with a positive HCG TEST performed by a medical doctor and before the birth of the Child(ren) and for no more than four (4) weeks after the birth of the Child(ren).  Examples include, but are not limited to, housing, automobile, related insurances for housing and automobile, real estate taxes and maternity clothing.

(i)         Except for in the case of multiple births, the total Living Expenses under this Agreement shall not exceed ($___________) or ($_________) per any one month for ten (10) months or for each month the Surrogate remains pregnant, whichever period is shorter (except if otherwise provided for in Section VI).  Furthermore, monthly total Living Expenses shall not exceed the following:

(a)    $0.X per mile for any/all surrogacy related expenses

(b)    maternity clothing, meals and life insurance 

First payment is due five (5) days following confirmation of pregnancy with a positive BETA TEST performed by a medical doctor.  Subsequent payments are due on the monthly anniversary thereafter as long as the fetus(es) remains viable.

(ii) In the case of a multiple birth, the total Living Expenses in (i) above shall be revised not to exceed ($_______) or ($_______) per any one month for ten (10) months or for each month the Surrogate remains pregnant, whichever period is shorter (except if otherwise provided for in Section VI).  In the event of more than one multiple birth, the total Living Expenses in (i) and (ii) above shall be increased prorata in the aggregate up to an additional ___________  ($X) per multiple birth.

(iii)       The sum of ____________ Dollars ($X) per IVF/embryo

transfer attempt, including mock cycles, for travel, and $X per hour for child care (if any) to be paid within five (5) days of embryo transfer.

(iv)       In the event the Surrogate's Husband incurs lost wages as a result of the IVF, the total Living Expenses in (i) and (ii) shall be increased prorata at a rate of $_______ per day.

(v)        In the event the Surrogate's treating physician or obstetrician orders bed rest or other contingencies for Surrogate in connection with the pregnancy and birth of the Child(ren), the total Living Expenses in (i) and (ii) above shall be increased prorata in the aggregate up to an additional One Hundred Dollars ($________) per week of bed rest or other contingencies.  Such amount are payable during each week of bed rest or other contingencies and shall not be assessed more than four (4) weeks after birth of the Child(ren) by vaginal delivery, and not more than six (6) weeks after cesarean section delivery. 

(vi)       In the event the Surrogate undergoes a Cesarean Section delivery, the total Living Expenses in (i) and (ii) above shall be increased prorata in the aggregate up to an additional _____________ ($X).

(vii)          In the event the Surrogate undergoes an invasive procedure, including but not limited to, an amniocentesis, D&C, cerclage, or loss of reproductive organs, the total Living Expenses in (i) and (ii) above shall be increased an additional ______________ ($X) per invasive procedure. 

(viii)         Surrogate shall be reimbursed for childcare expenses at a rate of $7 per hour for medical appointments related to the IVF procedure and any resulting pregnancy.  Payment to be made with monthly payment.

 

2.          Surrogate's Medical Expenses 

(a)      All medical, pharmaceutical, hospital, laboratory and therapy expenses incurred during, or resulting from complications arising from embryo transfer, that are not payable under Surrogate's health insurance policy shall be paid by Genetic Father and Intended Mother.  Said expenses shall not be assessed more than four (4) weeks after birth of the Child(ren) by vaginal delivery, and not more than six (6) weeks after a cesarean section delivery. 

(b)      All medical, pharmaceutical, hospital, laboratory and therapy expenses associated with any testing done at the request of the treating physician or Surrogate's OB/GYN that are not payable under Surrogate's health insurance policy shall be paid by Genetic Father and Intended Mother. Said expenses shall not be assessed more than four (4) weeks after birth of the Child(ren) by vaginal delivery, and not more than six (6) weeks after a cesarean section delivery.

(c)      The costs and fees of medical service providers for paternity testing pursuant to above referenced language in this Agreement shall be paid by Genetic Father and Intended Mother.

 
All of the Surrogate's Living Expenses and the Surrogate's Medical Expenses to be paid by the Genetic Father and Intended Mother must be supported by a receipt.  The Parties agree that this Agreement takes into consideration all time to be spent, pain and suffering, personal discomfort and other personal inconveniences and costs to be incurred by Surrogate in performance of all the terms and obligations set forth in this Agreement.


 

SECTION X

INSURANCE

 

Health

At the time the Surrogate executes this Agreement, Surrogate represents that she has in force a valid health insurance policy.  The policy is expected to pay a significant portion of all medical bills relating to pregnancy, pregnancy-related complications, labor and delivery, and hospitalization, with the exception of the IVF procedure.

The Surrogate shall provide to Genetic Father and Intended Mother written documents proving that such health insurance policy is in full force and effect.  Further, the Surrogate agrees to notify the Genetic Father and Intended Mother of any change in her health insurance status in sufficient time to make alternative arrangements. 

The Surrogate shall submit all medical bills related to any resulting pregnancy to her insurance company, as well as provide copies of any rejected claims to Genetic Father and Intended Mother and contest rejections if warranted.

Genetic Father and Intended Mother shall be responsible for all of Surrogate's medical expenses that are related to the embryo transfer procedure and/or pregnancy that are uninsured, having followed all agreements stated in the forgoing paragraphs in this Section.

Surrogate agrees to submit a copy of her present medical insurance policy to Genetic Father and Intended Mother prior to any tests or prior to incurring any expenses or payment of funds pursuant to this Agreement, or prior to any attempted compliance with the intent and/or objective of this Agreement.

The Surrogate represents that she has medical coverage, which includes complete pregnancy care and delivery, and provisions for payment of a Cesarean Section delivery, if required.  The Surrogate makes no warranty that her medical insurance will pay any or all costs associated with the pregnancy contemplated by this Agreement, and the Genetic Father and Intended Mother agree to make all payments in the event that the Surrogate's medical insurance does not pay her medical expenses, unless non-payment is the result of the Surrogate's negligence, such as the failure to submit expenses to the insurance company for reimbursement.

Should the Surrogate, due to unforeseeable circumstances, risk losing her medical insurance, she shall immediately notify Genetic Father and Intended Mother so that provisions can be made to address the options of converting the policy to COBRA coverage so that the Surrogate will not suffer loss of medical coverage.  Should the Surrogate have to convert her policy, the cost of said policy shall be paid by the Genetic Father and Intended Mother.

The foregoing paragraphs shall not apply to an abortion in violation of this Agreement, or a miscarriage which is the result of the Surrogate's negligence or breach of this Agreement.

 

Life

The Intended Mother and Genetic Father shall pay the costs of term life insurance on behalf of the Surrogate. Benefits shall be in the amount of ____________ ($X) dollars.  _____________ ($X) dollars of said amount shall be directed toward a beneficiary of the Surrogate’s choice and the Intended Parents shall be the beneficiary of the remaining ______________ ($X) dollars.  Evidence of said insurance and the premiums due shall be furnished to the Genetic Father and Intended Mother.

 

SECTION XI

EARLY TERMINATION OF AGREEMENT

 

Before the Surrogate becomes pregnant, this Agreement may be terminated under the following conditions:

1.          By Genetic Father and Intended Mother if the Responsible Physician=s opinion is that the Surrogate will not become pregnant within three (3) cycles.

2.          By Genetic Father and Intended Mother if the Responsible Physician determines that the Surrogate is not a good candidate for carrying out this Agreement.

3.          By Genetic Father and Intended Mother if the Surrogate has not become pregnant after three (3) cycles.

4.          By the Surrogate if the Genetic Father and Intended Mother is found by a medical professional to not be good candidates for carrying out this Agreement.

5.          At the discretion and with written approval of all Parties.

In the event of early termination of this Agreement, Genetic Father and Intended Mother shall be responsible for Surrogate's costs and expenses incurred to date, subject to the limitations of Section IX of this Agreement.

 

SECTION XII

BREACH

 

The Parties agree to declare any material breach or allegation of any material breach in writing to the breaching party within a reasonable period of time after the non-breaching party becomes aware of the breach. 

If the nature of an alleged breach is such that it cannot be reasonably cured, or if it can be cured but the breaching party fails to cure the breach within a reasonable period of time after notification, this Agreement may be immediately terminated by the non-breaching party by giving written notice of termination, by certified mail, without further liability or responsibility by the non-breaching party.

Surrogate agrees to refund all expenses paid to her by the Genetic Father and Intended Mother if she breaches any material portion of this Agreement.

Genetic Father and Intended Mother agree to pay all anticipated expenses of the Surrogate and expenses the Surrogate would have been entitled to pursuant to this Agreement if they breach any material portion of this Agreement as set forth below.

The Surrogate breaches this Agreement if she:

1.          Aborts the pregnancy in violation of this Agreement without the consent of the Genetic Father and Intended Mother.

2.          Acts in a manner dangerous to the well being of the unborn Child(ren) by failing to follow the directions of her physician, using medications or drugs not prescribed by her physician, using any tobacco product, using alcohol, attempting to intentionally inflict harm to the unborn Child(ren), or acquiring a venereal disease during the pregnancy.

3.          Knowingly provides false or misleading information to any physician or psychotherapist as specified herein.

4.          Becomes pregnant prior to the embryo transfer.

5.          Fails to timely cooperate with legal proceedings to effect the intent and objective of this Agreement, and establish the Genetic Father and Intended Mother as the parents of the Child(ren).

6.          Fails to relinquish custody of the Child(ren).

7.          Violates any other provision of this Agreement.

 

If the Surrogate breaches this Agreement or fails to fulfill her obligation: 

1.          She relinquishes her entitlement to the payment of expenses, and if she has received the benefit of any portion or all of the payment of such expenses, she must immediately refund it to the Genetic Father and Intended Mother.

2.          She will be responsible for all monetary expenses incurred by the Genetic Father and Intended Mother, including, but not limited to, medical expenses, psychological expenses, travel expenses, and all legal expenses.

3.          She becomes liable for expenses already incurred incident to this Agreement.

4.          She becomes liable for any necessarily incurred legal expenses to effect the intent and objective of this Agreement, and establish the Genetic Father and Intended Mother as the Child(rens) parents.

 

The Genetic Father and Intended Mother breach this Agreement if they: 

1.          Fail or refuse to pay the expenses as agreed.

2.          Refuse to accept the Child(ren) immediately following the birth, unless a blood test excludes the Genetic Father as being the biological father of the Child(ren) or unless the admitting hospital is found to be at fault for the resulting breach.

3.          Knowingly falsify or omit any material information relating to questions contained in this Agreement or any other document prepared in the anticipation of the intent and objective of this Agreement.

 

If the Genetic Father and/or Intended Mother breach this Agreement, then they agree to be obligated as follows: 

1.          To pay all actual expenses, subject to the limitations of Section IX of this Agreement, of the Surrogate incurred to the date of breach, provided the Surrogate is not pregnant.

2.          To pay child support costs pursuant to State Law upon the birth of the Child(ren).

3.          To pay for all reasonable costs related to placing the Child(ren) for adoption, if the Surrogate places the Child(ren) for adoption.

4.          To pay all legal fees associated with enforcement of this Agreement.

5.          To pay all legal fees of the Surrogate to defend against collection suits for unpaid medical bills.

 

The exclusion of the Genetic Father as a parent of the Child(ren), or the inclusion of the Surrogate as a parent of the Child(ren) by maternity or paternity testing shall constitute a material breach on the part of the Surrogate, except in the event that an act of the treating doctor was the causative factor resulting in the exclusion of the Genetic Father as a parent of the Child(ren).  Absent a causative factor by the treating physician, the Genetic Father and Intended Mother shall have no obligations whatsoever with respect to the Child(ren), and all expenses paid on behalf of the Surrogate shall be reimbursed.

 

SECTION XIII

ATTORNEY FEES AND COSTS

 

In the event litigation is required to interpret or enforce the terms of this Agreement, the prevailing party shall be entitled to reasonable attorney fees, court costs, and to any other relief that the Court may deem just and appropriate.

 

SECTION XIV

INDEPENDENT LEGAL COUNSEL

 

The Parties hereby acknowledge that they have been advised to retain and consult with their own independent legal counsel regarding the terms of this Agreement. 

All documented legal fees incurred by Surrogate, not to exceed Five Hundred Dollars ($500.00), as indicated by way of billing from counsel or counsel's firm as follows:

          (a)         For advice with regard to representation or clarification of any portion of this Agreement;

          (b)         For representation regarding Maternity/Paternity and/or adoption, and any other proceedings relating to custody.

By signing and otherwise executing this document, the Parties represent that they have consulted with independent counsel regarding the terms, conditions, rights, duties, liabilities and enforceability arising under the conduct contemplated by this Agreement.

 

 SECTION XV

MISCELLANEOUS

 

During the term of this Agreement, all Parties agree to immediately inform the other Parties, in writing, of any material change in their circumstances that may reasonably affect this Agreement.  These changes include, but are not limited to, change of address, illness or death of a Party, loss of employment, change of employment, change in insurance coverage, change in marital status, and exposure to communicable diseases.

Any Party may withdraw their consent to this Agreement and may terminate this Agreement with written notice given to the other Party any time prior to the embryo transfer, subject to expenses under Section IX and any other relevant terms of this Agreement.

All Parties' obligations under this Agreement, with the exception of the sections relating to expenses, are conditioned upon the approval of the Parties' results of exams and tests.

All Parties voluntarily enter into this Agreement expecting to be bound by each of the terms and conditions as set forth above, notwithstanding any subsequently approved or enacted legislation to the contrary.  Any party may attempt to enforce this Agreement in Court.  However, all Parties understand that a court may refuse to enforce this Agreement, in whole or in part, as against public policy or otherwise.  The Parties assume the risk of unenforceability in entering into this Agreement.  Surrogate and Surrogate's Husband will be held harmless and reimbursed for any and all expenses under this Agreement relating to the enforceability of this Agreement in the event a court determines this Agreement is not valid, unless the Surrogate or Surrogate's husband were in breach of this Agreement.

 

Privacy/Confidentiality:  The Parties, recognizing the potential of the performance of any controversial medical procedure to attract media attention, and agree that in the interest of privacy and preservation of family values, none of the Parties shall communicate with any media entity regarding the events which shall occur pursuant to this Agreement without the express written consent of all Parties named in this Agreement.

All Parties hereto agree that they will not provide nor allow themselves, nor their agents, to provide any information to the public, news media or any other individual or group which could lead to the disclosure of the identity of the Parties hereto or the Child(ren).

In anticipation of any necessity of an adoption, the Parties agree that upon the completion of an adoption of the Child(ren) conceived pursuant to this Agreement, to permanently close the adoption file pertaining to said Child(ren), except as otherwise provided by law.

 

Severability:  In the event that any provision of this Agreement is deemed to be invalid or unenforceable, the same shall be deemed severable from the remainder of this Agreement and shall not cause the invalidity or unenforceability of the remainder of this Agreement.  If such provision shall be deemed invalid due to its scope or breadth, such provision shall be deemed valid to the extent of the scope or breadth permitted by law.

 

Warranties:  No warranties have been made as to the ultimate results, costs, liabilities and/or obligations of the Parties relative to each other which may result form any judicial process arising and resulting from the actions and/or conduct of the Parties to this Agreement.  Further, the Parties understand that no person can warrant the conception of a Child(ren), the physical or mental health of any Child(ren) born pursuant to this Agreement, or the gender of any Child(ren) born pursuant to this Agreement. 

 

Voluntary:  Each party acknowledges that he or she fully understands the Agreement and its legal effect and that he or she is signing the same freely and voluntarily and that neither party has any reason to believe that the other did not freely and voluntarily execute said Agreement.

Any party may attempt to enforce this Agreement in court.  However, all Parties understand that a court may refuse to enforce this Agreement, in whole or in part.  The Parties assume the risk of unenforceability in entering into this Agreement.

 

Governing Law:  This Agreement shall be governed by the laws of the State of (State).

 

Integrated Contract:  This Agreement represents the entire Agreement between the Parties to the Agreement, and all agreements, covenants, representations, and warranties, express or implied, oral or written, are contained herein.  No other agreements, covenants, representations, or warranties, express or implied, oral or written, have been made by any party to the other with respect to the subject matter of this Agreement. 

 

SECTION XVI

AMENDMENT

 

This Agreement may be amended upon the written consent of all Parties, notarized and executed prior to the birth of any Child(ren).

We have read this page and the foregoing Seventeen (17) pages of this Agreement, and it is our intention, by subscribing our signatures below, to enter into a binding legal obligation.


 

______________________________                 _______________________________

Name, Surrogate                                                      Date

 

 

 

______________________________                 _______________________________

Name,                                                                         Date

Surrogate's Husband

 

 

 

______________________________                 _______________________________

Name, Genetic Father                                              Date

 

 

 

______________________________                 _______________________________

Name, Intended Mother                                            Date

 

 

 

 

PREPARED BY:                                                   

 

Attorney


 

STATE OF  ___________________)            

                                    ) SS:

COUNTY OF __________________)

 

BEFORE ME, the undersigned, a Notary Public in and for said County and State, personally appeared _________________, who acknowledges that she did sign the foregoing SURROGACY CONTRACT and that the same is her free act and deed.

 

IN WITNESS WHEREOF, I have hereunto set my hand and official seal at __________________ this ___________ day of  _____________________, _______.

 

 

_________________________________

Notary Public

 

 

 

 

 

STATE OF  ___________________)            

                                    ) SS:

COUNTY OF __________________)

 

BEFORE ME, the undersigned, a Notary Public in and for said County and State, personally appeared __________________, who acknowledges that he did sign the foregoing SURROGACY CONTRACT and that the same is his free act and deed.

 

IN WITNESS WHEREOF, I have hereunto set my hand and official seal at __________________ this ___________ day of  _____________________, _____.

 

 

_________________________________

Notary Public


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