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Sample TS Contract
(All About Surrogacy accepts no liability for providing this document.)
THIS SURROGACY AGREEMENT is made and entered into as of the ___ day of Month, Year, by and among John Doe (“Genetic Father”) and Jane Smith (“Surrogate”) and;
A. Genetic Father is a single individual of 100 years of age and he desires to have a child or children biologically related to him and to take such child or children into his home as his own child or children.
B. Surrogate is capable of conceiving and bearing a healthy child in the future.
C. Surrogate is 100 years of age and wishes to assist Genetic Father in achieving his goal of conceiving a child. Surrogate enjoys the pregnancy experience; however, Surrogate does not wish to add to her family. The sole intention of the Surrogate in entering into this Agreement is to assist Genetic Father in creating or adding to his own family.
D. Genetic Father desires to have a child by artificial insemination or in vitro fertilization and for the Surrogate to carry and deliver Genetic Father’s biological child or children as a result of artificial insemination or in vitro fertilization of eggs she consents to donate to Genetic Father.
E. All parties have been advised that Surrogate cannot be legally bound to sign consent for the relinquishment/termination of parental rights, should she be considered to have any parental rights, to a child conceived under this Surrogacy Agreement until after the birth of the child; however, the parties desire to set forth his present intent.
F. The parties understand that Surrogate parenting exists in an unsettled, little established area of the law, therefore, no warranties can be made or have been made as to the outcome of judicial proceedings which could result from the conduct contemplated within this Agreement. No warranties can be made as to the ultimate obligations, liabilities or expenses of the parties should a judicial action result from actions contemplated in this Agreement.
WHILE THE PARTIES ARE ENTERING INTO THIS AGREEMENT WITH THE INTENTION OF BEING FULLY BOUND BY ITS TERMS, ALL PARTIES HAVE BEEN INFORMED BY HIS INDEPENDENT LEGAL COUNSEL AND UNDERSTAND THAT THIS AGREEMENT IN WHOLE OR IN PART MAY BE DECLARED VOID UPON THE BASIS OF BEING AGAINST PUBLIC POLICY OR HELD UNENFORCEABLE IN WHOLE OR IN PART. ANY PORTIONS OF THIS AGREEMENT WHICH ARE HELD TO BE UNENFORCEABLE ARE SEVERABLE. FURTHER, NO ASPECT OF THIS AGREEMENT MAY BE ENFORCED IF SUCH ENFORCEMENT VIOLATES ANY NON-WAIVABLE CIVIL OR CONSTITUTIONAL RIGHT OF ANY PARTY TO THIS AGREEMENT.
IT IS EXPRESSLY UNDERSTOOD BY ALL PARTIES TO THIS AGREEMENT THAT THIS AGREEMENT IN NO WAY REQUIRES OR PROVIDES FOR ANY PAYMENT FOR A CHILD, OR PAYMENT TO INDUCE THE SURROGATE'S RELINQUISHMENT OF PARENTAL RIGHTS, IF ANY, TO A CHILD, OR CONSENT TO AN ADOPTION.
THEREFORE, in consideration of the Recitals, which are incorporated herein by this reference, the representations, warranties, promises, covenants, and agreements of the parties contained herein, and the mutual benefits to be derived by the parties hereunder, and with the intention of being legally bound by the terms and conditions of this Agreement, the parties agree as follows:
Section One - Definitions
1. Definitions. Certain words used in this Agreement have the following meanings:
Section Two - Parties obligations
2. Psychological Evaluation. Surrogate, represents that prior to commencement of the IVF cycle, she has undergone a psychological evaluation conducted by a licensed psychotherapist. Surrogate expressly waives the privilege of confidentiality and permits the release of the report or other information obtained as a result of the evaluation to Genetic Father. All parties have been advised that it is the standard in the industry to require Surrogate and Genetic Father to undergo a complete psychological evaluation to determine whether each party is suitable to enter into a Surrogate arrangement. To the extent that any party decides not to undergo a psychological evaluation or to not require another party to undergo a psychological evaluation, said party is knowingly waiving this requirement and assuming the risk that the evaluation might have revealed information that would have caused one or more parties not to enter into this Agreement. By signing this Agreement, Surrogate waives such psychological evaluation of Genetic Father.
3. Physical Evaluation. Surrogate, represents that prior to executing this Agreement she has undergone required physical examination/testing performed by the attending physician including testing for AIDS and sexually transmitted diseases and that she has provided information regarding her medical history that is true, correct and complete to the best of her knowledge. Surrogate expressly waives the privilege of confidentiality and permits the release of the report or other information obtained as a result of said evaluation to Genetic Father. Genetic Father agrees to pay for all medical and laboratory costs incurred for such physical examination/testing. Genetic Father represents that prior to executing this Agreement he has undergone required physical examination/testing performed by the attending physician including testing for AIDS and sexually transmitted diseases and that he has provided information regarding his medical history that is true, correct and complete to the best of his knowledge. Genetic Father expressly waives the privilege of confidentiality and permits the release of the medical report or other information obtained as a result of the report to Surrogate and Surrogate’s obstetrician.
4. Artificial insemination/IN VITRO FERTILIZATION. As part of her obligations under this Agreement, Surrogate may be either artificially inseminated with Genetic Father’s sperm or she may be required to submit to an IVF protocol in order to have her eggs retrieved and fertilized with Genetic Father’s sperm before having the resulting embryos transferred into her uterus.
4.1. Artificial inseminations. May be performed either by a physician at a clinic (IUI) or as home insemination. It is Surrogate responsibility to monitor her cycle in order to pin point her most fertile moments. Genetic Father shall pay for the monitoring supplies required.
4.2. In Vitro Fertilization. Shall be performed by a physician at a fertility clinic. Surrogate shall attend monitoring appointments and take all the medication prescribed to her in order to prepare for the egg retrieval and for the transfer, including injections she may be required to self administer. Genetic Father and Surrogate agree that no more than 2 embryos per cycle may be transferred into her uterus and that remaining embryos, if any, shall be cryopreserved.
5. Medical Instructions/ Medical Care. Surrogate, agrees to adhere to all medical instructions given to her, including abstention from sexual intercourse or any activity that might result in semen being introduced into her body during the cycling period or as instructed by the attending physician. Should Surrogate wishes to engage in sexual activities with her significant other while this Agreement is in effect, her significant other will be tested for STD, and will commit to a monogamous relationship with Surrogate, for the duration of this Agreement. Surrogate further agrees to monitor closely her cycle in order to pin point her ovulation period and to follow inseminations schedule and prenatal medical examinations set by the attending physician and/or her obstetrician. Genetic Father agrees to not engage in any hazardous sexual activity that may cause him to contract a disease that he could pass on to the Surrogate and Child through his semen, for the duration of the contract and specifically during the semen collection period. Should Genetic Father wish to engage in sexual activities with his significant other while this Agreement is in effect, his significant other will be tested for STD and commit to a monogamous relationship with Genetic Father.
6. Maintain of Pregnancy. Upon becoming pregnant Surrogate shall adhere to all medical instructions from her treating physician and her independent obstetrician, which may include, but shall not be limited to, following pre-natal examination schedules; taking recommended or prescribed medications and vitamins; and, submitting to ultrasound scans, CVS testing, alpha-foetal protein testing and other necessary or advisable testing. Surrogate’s obstetrician shall be a physician covered by her medical insurance plan and approved by Genetic Father. This may include a specialist if recommended by the Surrogate’s treating obstetrician.,
6.1. Surrogate agrees that she will carry the embryo/foetus (referred to as "child") until delivery except as set forth herein.
6.2. Surrogate agrees to consult with a designated high-risk obstetrician (in addition to her own obstetrician) during her pregnancy upon the request of Genetic Father and the advisement of her obstetrician.
6.3. Invasive testing. Surrogate agrees to undergo an amniocentesis or other invasive testing to detect foetal genetic and congenital defects upon the request of Genetic Father if Surrogate’s obstetrician concurs that such testing is medically appropriate.
6.4. Abortion/Selective Reduction. Surrogate has the constitutional right to decide whether to abort. However, Surrogate’s decision to abort must comply with constitutional guidelines. If Surrogate undergoes an elective abortion in the absence of circumstances set forth below, she will be deemed in breach of this Agreement, and shall be liable to Genetic Father for all costs incurred under this Agreement, including but not limited to medical expenses and legal fees. Genetic Father recognizes that some genetic and congenital abnormalities may not be detected by amniocentesis or other testing, if performed, and that Surrogate may elect to continue or terminate the pregnancy knowing of a genetic or congenital abnormality.
6.4.1. It is the intent and understanding of the parties that Surrogate shall undergo a therapeutic abortion under the following circumstances: (1) if her own health is threatened in the opinion of Surrogate’s obstetrician or an emergency health care provider, or (2) upon the request of Genetic Father in the event the foetus is diagnosed with a significant mental and/or physical abnormality, in the opinion of the IVF Physician or Surrogate’s obstetrician.
6.4.2. It is agreed that Surrogate shall not undergo an abortion for the purpose of sex selection.
6.4.3. It is the intent and understanding of the parties that Surrogate shall undergo a selective reduction under the following circumstances: 1) if her own health is threatened in the opinion of Surrogate’s obstetrician or an emergency health care provider; (2) upon the request of Genetic Father in the event the foetus (or foetuses) is diagnosed with a significant mental and/or physical abnormality, in the opinion of Surrogate’s obstetrician and (3) upon the ongoing development of more than two foetuses.
6.4.4. It is agreed that any therapeutic abortion procedure or selective reduction procedure shall be performed before completion of the twentieth (20th) week of pregnancy unless necessary for the preservation of Surrogate’s health.
6.4.5. Should a medical doctor deem an abortion or selective reduction necessary or in the presence of the conditions set forth in subparagraphs 6.4, 6.4.1, 6.4.3 and 6.4.4 Genetic Father shall pay for the cost of selective reduction or abortion procedure and all associated medical expenses if not covered by Surrogate’s medical insurance as set forth in paragraph 14.10.3
6.5. Information Updates. Surrogate agrees to notify Genetic Father of the status of her pregnancy, her expected delivery date and changes thereto.
6.5.1. Surrogate agrees to take all necessary steps to have her medical records sent to Genetic Father on a monthly basis, to sign any and all releases or other documentation necessary to facilitate this process and to advise the Genetic Father of any medical appointments, and to include him in said appointments, if possible.
6.5.2. Surrogate shall promptly inform the Genetic Father of any medical problems, conditions, or concerns that may arise during the pregnancy.
6.5.3. She also agrees to provide the Genetic Father with prompt notification of the date and time of the delivery of the child, as known, and to take all necessary steps to include the Genetic Father at the delivery of the child.
6.5.4. Delivery shall take place, unless in cases of emergency, at the facility approved by the Genetic Father and covered by Surrogate’s or Genetic Father medical insurance.
6.6. Lifestyle Prohibitions. While Surrogate executes this Agreement, and until the Agreement is terminated either by the birth of a child as contemplated herein or by termination of the Agreement as otherwise set forth in this Agreement, Surrogate agrees to refrain from:
6.6.1. Participating in any dangerous sports or activities as advised by the attending physician or Surrogate’s obstetrician;
6.6.2. Travelling outside the Province/State of XXXXX before the commencement of the seventh month of pregnancy without prior notice to Genetic Father;
6.6.3. Travelling or remaining outside the Province of Quebec after the commencement of the seventh month of pregnancy until the birth of the child;
6.6.4. Smoking cigarettes or remaining in the prolonged presence of second hand smoke;
6.6.5. Applying hair dye or permanent solution during the first trimester of pregnancy;
6.6.6. Lifting any weights in excess of the restrictions set forth by the IVF Physician or Surrogate’s obstetrician;
6.6.7. Drinking alcoholic beverages;
6.6.8. Drinking more than one cup of caffeinated beverage per day;
6.6.9. Using any illegal drugs (controlled substances);
6.6.10. Taking hot tubs or saunas;
6.6.11. Handling or changing cat litter;
6.6.12. Ingesting medicinal herbs, saccharine or other artificial sweeteners;
6.6.13. Home pesticide application from the time period commencing at least one month prior to the embryo transfer procedure until completion of the first trimester of pregnancy or other termination of pregnancy;
6.6.14. Remaining in close proximity to cleansers, hairspray, oven cleaner, pesticides and other aerosol sprays;
6.6.15. Applying any topical ointments/creams including, but not limited to steroids, retinal and antibiotics, without the prior approval of Surrogate’s obstetrician;
6.6.16. Using any non-prescription drugs or prescribed medication without the prior written approval of the attending physician or Surrogate’s obstetrician; and
6.6.17. Undergoing x-rays (except in the event of a medical emergency) or chiropractic treatment without the prior written approval of the attending physician or Surrogate’s obstetrician.
6.6.18. Inhaling, ingesting or applying to herself or to others, any essential oil recognized for its potential of adverse effect on the pregnancy, as well as those for which this potential has not been determined. Surrogate shall only be in contact with essential oils deemed safe during pregnancy as per published literature and to inform Genetic Father should she use any.
6.7. Life Support. Surrogate agrees that in the event Surrogate is seriously injured or suffers a life-threatening illness after completion of the thirtieth (30th) week of pregnancy, if medically necessitated and advisable, Surrogate will be sustained with life support equipment to protect the fetus’ viability and promote a healthy birth.
6.7.1. Life Support costs. Genetic Father agrees to pay the cost of any associated medical costs for life support that are not covered by Surrogate’s health insurance that are associated with maintaining Surrogate’s pregnancy and in connection with the birth of the child.
6.7.2. Specific care. Furthermore, Genetic Father will insure that Surrogate is cared for physically and spiritually as described in Addendum 2 and will assume the cost of those care.
6.7.3. Surrogate's Living Will. Surrogate shall make a living will to name and instruct the agent with power of attorney so that the terms of this Agreement survive. Her agent shall take all actions required for the Child to be placed in the custody of Genetic Father.
7. Birth Location. Surrogate acknowledges that she has the absolute duty to give birth within the Province/State of XXXXXXXX;
8. Paternity and Maternity/Termination of Rights. Following the birth of the child, Surrogate agrees to fully cooperate with any paternity proceedings necessary to establish parentage on behalf of the Genetic Father and to have the name of Genetic Father entered on the child’s birth certificate as the legal father of the child.
8.1. Termination of parental rights. Surrogate shall voluntarily cooperate in the lawful and prompt termination of her parental rights, if any, to the child, and any legal action that may be deemed necessary to overcome any legal presumption of maternity or determine Genetic Father’s parentage. Surrogate agrees to sign all affidavits and attend any scheduled court hearing(s) to finalize the proceedings.
8.2. Legal counsel. During the term of pregnancy and after the birth of the child, Genetic Father shall obtain and be solely responsible for payment of legal counsel and any and all expenses required to institute and represent Genetic Father in all necessary, desired and lawfully permissible legal proceedings contemplated by this Agreement, including but not limited to adoption or parentage proceedings. Therefore, Genetic Father shall pay any legal fees incurred by Surrogate in connection with the cooperative effort to establish Genetic Father as the legal parent of the child with legal custody as well as all filing fees incurred therein.
8.3. Paternity test. Any party to this Agreement may request a paternity test with respect to the child, provided that such request is made prior to the release of custody of the child to Genetic Father.
8.3.1. If the test demonstrates that Genetic Father is not the Genetic Father of the Child, then the obligations of the Genetic Father under this Agreement shall be terminated and Surrogate shall not be entitled to any expenses hereunder and any such amounts already provided to the Surrogate by the Genetic Father shall be returned immediately to the Genetic Father, including but not limited to living expenses already paid, medical and psychological treatments, examinations and testing, health care and nutritional expenses.
8.3.2. However, in the event that conception occurred after an IUI or IVF procedure, Genetic Father agrees to assume all risks that non-designated sperm, ova or embryos could be transferred to Surrogate’s uterus, and Genetic Father agrees to indemnify Surrogate and Surrogate’s Partner, should Surrogate have a Partner at the time, and hold them harmless from all financial responsibility for the pregnancy and the child in such case, without waiving any rights to pursue a claim for damages against any negligent party.
9. Custody determination. Surrogate shall voluntarily surrender sole and exclusive custody, parental responsibility, decision-making, care and control of the child to the Genetic Father immediately upon the child's birth, acknowledging that it is in the best interests of the child to do so. When and as requested by the Genetic Father, she shall execute any and all documents, including but not limited to, Power of Attorney, to enable the Genetic Father to make any and all decisions regarding the life, health, well being and any other matter relative to the child.
9.1. Adoption or Parentage determination. Surrogate shall facilitate the adoption or determination of parentage of the child by Genetic Father if required;
9.2. Genetic father recognition. Surrogate shall cooperate and take all action necessary to have Genetic Father’s names lawfully placed upon the child's birth certificate as the sole parent of such child;
9.3. Necessary demarches. Surrogate shall sign any and all necessary affidavits, consents, petitions, or other legal documents, and attend all court hearings required to further the intent and purposes of this Agreement.
9.4. Prevailing Law. The parties acknowledge and understand that a Court Order of competent Jurisdiction may not terminate the parental rights of the Surrogate and that if said parental rights are not terminated then Surrogate would remain the birth mother with all rights and responsibilities associated therewith;
9.5. Compensation for necessary demarches. Genetic Father shall provide reasonable compensation for Surrogate’s time with regards to her efforts stated in paragraphs 8.1, 9.1 through 9.3.
10. Custody acceptation. Genetic Father agrees to immediately accept custody and assume full legal responsibility for all and any child born to Surrogate pursuant to this Agreement.Except as set forth in paragraphs 8.3 and 10.1.3 of this Agreement. Genetic Father shall take custody of and responsibility for the Child as soon as possible after the Child's birth and after the necessary releases and/or consents have been signed by Surrogate regardless of whether the Child is healthy or ill, male or female, handicapped, retarded, etc., and regardless of whether more than one child is born.
10.1. Parenting a Handicapped Child. Both Parties understand the responsibility to Parent an Handicapped Child and, with regards the purpose and intent of this Agreement, have concurred that the following dispositions shall prevail:
10.1.1. Handicap Discovered Prior to Birth, while therapeutic abortion is still an option. In the event Surrogate is informed by her treating physician that the child runs a substantial risk of a physical or mental abnormality, and the diagnosis is confirmed by a second physician, Genetic Father shall have the option of declining to parent such child and request an abortion. In such event, Surrogate may choose to abort, parent the child or to have the right to place the child for adoption.
i. If Surrogate chooses to abort, all abortion costs as well as any additional medical costs resulting from the abortion shall be paid by Genetic Father;
ii. If Surrogate chooses to parent the child or place the child for adoption, Genetic Father shall not be responsible under contract for child support payments but understands he may be held responsible under applicable state law;
10.1.2. Handicap discovered after a therapeutic abortion is deemed impracticable or reputed illegal or discovered after Birth. In the event an abnormality is detected too late in the pregnancy and that qualified medical doctors will not conduct an abortion or that by state law it is illegal to abort or if there is no forewarning of such abnormality until birth occurred and neither Genetic Father nor Surrogate wish to parent the child, Genetic Father shall be responsible for the following, but not limited to: all medical expenses, foster care expenses and other expenses of child until an adoption can be arranged. Surrogate shall not be responsible for reimbursement of her expenses or any monies received by the family, unless it is established that her actions were responsible for the handicap of the child.
10.1.3. Handicap Resulting from Surrogate’s Activities. Notwithstanding the provisions of paragraphs 10.1.1 and 10.1.2, in the event a child is born with a handicap without forewarning and it is determined by two physicians that the handicap is a result of drug or alcohol use, cigarette smoking, or poor nutrition during the pregnancy, and or negligence, Surrogate shall reimburse the Genetic Father any expenses already paid on her behalf and shall also be responsible for the costs of delivery of the child, medical expenses, as well as, in the event Genetic Father do not wish to parent the Child, foster care expenses and other expenses until a suitable relinquishment and adoption can take place. In the event Surrogate chooses to parent said handicapped child, Genetic Father shall not be responsible under contract for child support payments but understands he may be held responsible under applicable state law.
11. Postpartum contact between the Genetic Father, resulting offspring and Surrogate shall be upon the mutual agreement of the parties with the best interest of the Child controlling it.
11.1. Without it consisting any alienation of Genetic Father’ rights as to the sole and exclusive custody, parental responsibility, decision-making, care and control of the Child nor setting up base for any claim from Surrogate to this effect, it is Genetic Father intention to allow Surrogate to visit the Child freely, after having previously set an appointment for such visit. All the visits shall be in the presence of the Genetic Father unless permitted otherwise by the Genetic Father.
11.2. Under no consideration will the Surrogate take the Child from the custody of the Genetic Father or leave with the Child to take him to a place different than the one where she was permitted to visit him. Such visits shall not be construed as shared custody visitation rights nor set base for any claim to such. At any time, with consideration to the Child's well being and best interest, Genetic Father may change or end the regimen of such visits.
11.3. Surrogate, agrees that in the best interest of the child she will not form or attempt to form a parent-child relationship with any child born pursuant to the terms of this Agreement.
12. Guardians of Child. In the event of the death of Genetic Father prior to the release of custody of the child to him, custody of the Child born pursuant this Agreement shall be given to the guardian named by Genetic Father in his will. In the event that the designated guardian is unable to serve, the alternate guardian also named by Genetic Father in his will shall become the guardian of the child.
12.1. Guardian shall permit Surrogate the same regimen of visits to the Child as that intended by Genetic Father while entering this agreement or as the one that will have been established between the parties after the Child’s birth, should Genetic Father decease after the birth and before the 12th birthday of the Child. Genetic Father has placed the addresses and phone numbers of the designated guardian and alternate guardian on file with attorney _______________________ prior to inseminations or IVF procedures.
12.2. It is the sole privilege of Genetic Father to designate the Child guardians though he may choose to name Surrogate as designated or alternate guardian of the Child.
12.3. The only circumstance that may change these dispositions is when both following conditions occur: 1) Genetic Father dies prior to the birth of the Child or within 3 months after the birth of the Child, AND 2) Surrogate looses or suffers irreversible damages to her reproductive functions such as lost womb, tubes etc. In such case the Surrogate shall be given the opportunity to establish with the Child a loving and caring parent-child relationship and obtain custody of the Child. In such case she would be accepting any and all child/ren born pursuant this agreement. ________________________, would administer the Child’s inheritance until his majority. Surrogate would arrange for the Child to visit his paternal family regularly. Should she decline this opportunity, custody of the Child would be given to a guardian as previously stated. The Genetic Father will revise his will accordingly prior to starting inseminations.
13. cryopreserved embryos. Following the birth of the child, the following dispositions shall survive the termination of the present Agreement:
13.1. Custody. Genetic Father shall have the sole custody of the remaining embryos for the 5 years following the birth of the Child.
13.1.1. Five years after the birth of the Child, any remaining cryopreserved embryo shall be destroyed.
13.1.2. If no Child is born pursuant the present Agreement, remaining embryos, if any, shall be destroyed.
13.1.3. All the maternity/paternity termination rights, custodial and visitation provisions of the present Agreement shall apply to any Child born from the cryopreserved embryos, regardless of the Gestational Carrier that will be impregnated with them.
13.2. Death of Genetic Father. In case of the death of Genetic Father, Surrogate shall be given custody of the remaining embryos and the right to determine whether they shall be destroyed or not.
13.3. Death of both Genetic Father and Surrogate. Should both Genetic Father and Surrogate die, any cryopreserved embryos produced pursuant the present Agreement shall be destroyed.
14. Child's Name. Surrogate agrees that it is the exclusive right of Genetic Father to name the child and will fill all required forms so that Child's Name on birth certificate be as that instructed by Genetic Father
15. Expenses incurred in the performance of this Agreement. Genetic Father shall pay, be caused to pay or reimburse to Surrogate, when applicable, the expenses incurred during the execution of the present Agreement as well as child support and living expenses while this Agreement remains in effect.The Consideration for all the Expenses, Child Support and Living Expenses incurred by the parties in the execution of this Agreement shall be as follows:
15.1. Escrow. In lieu of Escrow Account, both parties agree to jointly manage a trust fund account or a checking account with two signatures mandatory where Genetic Father will deposit sufficient funds to meet Genetic Father’s obligations under this Agreement. The initial amount of no less than xxxxxxx thousand dollars (00,000.00$) shall be deposited in the account by Genetic Father upon execution of this Agreement and before commencement of inseminations. In the event that the funds in the account becomes insufficient to cover anticipated expenses related to the execution of this agreement, Genetic Father agrees to deposit additional funds no later than 5 days after such situation arise. At the termination of this Agreement, when all dues are paid in accord with the provisions contained herein, Surrogate shall sign any form required so that the remaining funds in such account, if any, can be returned to Genetic Father.
15.2.1. Genetic Father’s shall pay for his legal representation for the drafting of the contract and any legal fee for the establishment of their parental rights;
15.2.2. The fees to set up and maintain Escrow account or the like;
15.2.3. Genetic Father’s shall pay for Surrogate’s attorney fees for independent legal advice regarding the meaning and consequence of this Agreement (but not for any legal advice or representation regarding breach or enforcement of this Agreement). Surrogate represents that she declined her option to seek such independent advice.
15.2.4. Genetic Father’s shall pay for all court costs, filing fees and copying fees for a judicial declaration of paternity, if required.
15.3.1. Physical screening. If need be, the costs and fees of medical service providers for initial medical testing to determine Surrogate’s suitability as a traditional Surrogate as well as all laboratory costs and fees incurred by Surrogate and by Genetic Father to detect any illness or sexually transmissible disease that could prevent them from entering this Agreement, for the safety of Surrogate and Child.
15.3.2. Psychological screening. The actual cost or fee charged by a mental health care professional for psychological testing and/or counselling for Surrogate prior to the Artificial Insemination procedure, during pregnancy and for a three (3) month period after delivery, if advised by such mental health care professional, whether through support group meetings or individual counselling.
15.3.3. Expenses incurred by AI and/or IVF procedures. The costs and fees of medical service providers for the Artificial Insemination procedure or In Vitro Fertilization procedures and all related pre-insemination medical expenses. All medical, pharmacy, hospital, laboratory and therapy expenses incurred by Surrogate during, or resulting from complications arising from AI or IVF procedure, that are not payable under Surrogate’s health insurance policy.
15.3.4. Expenses incurred for pregnancy and delivery. All medical, pharmacy, hospital and laboratory expenses associated with any testing done at the request of the Surrogate’s obstetrician/midwife related to the pregnancy pursuant to this Agreement that are not payable under the Surrogate’s health insurance.
15.3.5. Paternity testing. All costs and fees of medical service providers for paternity testing pursuant this Agreement, if requested by the Genetic Father.
15.4. Child support and Living expenses. In recognition of the Genetic Father’s obligation to support his child being carried by the Surrogate and for the cost of the Surrogate to care for the child. Genetic Father shall pay the total sum of $00,000.00 for a singleton or $00,000.00 if Surrogate is carrying twins. This sum shall be paid in 10 equal installments of $0,000.00 (or 0,000.00 if applicable) per month. Payments shall begin within five days following the confirmation of pregnancy as determined by the treating physician or obstetrician and shall continue on the first day of every month thereafter for a total period of 10 months so long as the pregnancy is maintained.
15.4.1. Premature delivery. If delivery occurs after completion of the 28th week of pregnancy, Surrogate shall be entitled to entire sum, regardless of health or living status of the child.
15.4.2. Should Death of the Child occurs after the 24th week of pregnancy but before the completion of the 28th week, the Genetic Father will continue to pay the aforementioned expenses in section 15 of this Agreement up to the date of Death of the Child and for a two(2) month recovery period thereafter. Genetic Father shall also be responsible for funeral expenses, if any.
15.4.3. Miscarriage. Should Death of Child occurs prior to the 24th week of pregnancy, this Agreement shall be terminated and there shall be no further duties of performance under this Contract of the Genetic Father except as provided for in section 15.4.2 and for those medical costs and expenses related to pregnancy, that the Genetic Father is responsible for pursuant of this Agreement, incurred by the Surrogate up to and including the date of death, and those medical costs and expenses which are reasonably necessary and related to the health, safety and well being of the Surrogate. However, in the event the Parties choose to continue the surrogacy arrangement after such death, this Agreement shall remain in full force and effect and the termination is deemed waived.
15.4.4. Negligence. In the event that it can be established by 2 medical specialists that premature delivery, stillbirth or miscarriage was caused by Surrogate’s willful negligence, than Genetic Father’s obligations as in section 14 and subparagraphs shall cease and Surrogate shall be responsible for the costs of delivery of the child, medical expenses, care expenses, other expenses such as funeral expenses, if applicable, and shall reimburse Genetic Father any expenses already paid on her behalf.
15.5. Expenses and Lost Wages incurred by Bed rest/Activity Restrictions. In the event that the Surrogate’s treating physician or obstetrician requires Surrogate to refrain from employment, to observe bed rest or other restrictions in connection with Surrogate’s pregnancy or birth of the child as contemplated in this agreement, Genetic Father shall provide Surrogate with the following, provided reasonable proofs such as medical note and evidence of lost wages are submitted to him:
15.5.1. Lost wages. Genetic Father shall pay to the Surrogate, should the restrictions incur in lost wages or impossibility to work, the exact amount of net wages lost, if any, less any disability benefits received by Surrogate, if any. In the event that Surrogate’s income comes from self-employment, the indemnity for such restrictions shall be the prorated amount of the highest of the following two amounts: four hundred dollars 400$ or Surrogate’s average net monthly income of the last three (3) months.
15.5.2. Housekeeping. In addition, in said period of disability or bed rest, the Genetic Father shall pay reasonable house housekeeping expenses for the Surrogate during the period of bed rest/restriction ordered by the treating physician/obstetrician up to the birth of the Child and for a period of time not to exceed six (6) weeks after the birth of the Child through vaginal delivery and eight (8) weeks after the birth of the Child by a Caesarean Section.
15.6. Prenatal Care Expenses. Genetic Father shall pay for the actual cost of all pregnancy care and necessary expenses incurred by Surrogate during Surrogate’s pregnancy in her performance under this Agreement, as specified hereinafter:
15.6.1. Diet and supplement. Genetic Father shall pay the actual cost for vitamins and/or special diet when prescribed by attending Physician or Obstetrician;
15.6.2. Prenatal therapies and birth preparation course. Genetic Father shall reimburse all Surrogate’s birth preparation course expenses and up to 000$ per month in prenatal alternative therapies such as acupuncture and pregnancy massages, when previously approved by her treating physician, during the execution of this Agreement and continuing one (1) month after the birth of the Child;
15.6.3. Maternity clothing. Genetic Father shall pay the cost of maternity clothing which shall not exceed $000.00 unless she is carrying more than one (1) child and 0,000.00 if twins. Surrogate shall not purchase maternity clothing until she is pregnant and is outgrowing her regular clothing to begin at the 3rd month of pregnancy;
15.7. Lactation Related Expenses. Surrogate is willing to provide her breast milk for the child. If the Genetic Father desires breast milk for the child, he will agree to reimburse the Surrogate for all mailing expenses, time, and required materials related to harvesting and sending the breast milk. Compensation for her time and efforts will be determined in that eventuality.
15.8. Miscellaneous expenses. Expenses incurred by Surrogate for travel, lost wages, telephone calls and miscellaneous expenses will be paid directly by the Genetic Father or reimbursed to Surrogate, if the case arises, in a timely manner not to exceed one month from date of submission.
15.8.1. Expenses statements. Surrogate acknowledges that it is her responsibility to submit an itemized statement of expenses to the Genetic Father for reimbursement. Genetic Father shall have no liability for such expenses unless the actual costs of the expenses and verification thereof are submitted with in one (1) month of the date of said expense being incurred.
15.8.2. Advances. The Surrogate can subtract expenses from an advance for various agreed upon expenses.
15.9. Pre-established Indemnities for anticipated or extraordinary circumstances. Genetic Father shall pay the following amounts to Surrogate should the specified circumstances occur during her performance under the present Agreement:
15.9.1. In Utero Insemination. Surrogate shall receive XXXX Hundred Dollars ($000.00) for her time to attend the appointments required for each IUI cycle payable no later than five (5) days after completion the procedure
15.9.2. In Vitro Fertilization short protocol (IVFn) Surrogate shall receive XXXX Hundred Dollars ($0000.00) for her time to attend the appointments, to inject herself the required medications and to submit to the egg retrieval and subsequent transfer procedures, for each IVFn cycle performed under this Agreement, payable no later than five (5) days after completion the procedure.
15.9.3. In Vitro Fertilization long protocol (IVF) Surrogate shall receive XXXXX Hundred Dollars ($0000.00) for her time to attend the appointments, to inject herself the required medications and to submit to the egg retrieval and subsequent transfer procedures, for each IVF cycle performed under this Agreement, payable no later than five (5) days after completion the procedure.
15.9.4. CVS (chorionic villis sampling)/Amniocentesis. Surrogate shall receive XXXX Dollars ($000.00) for her time to attend the appointments required for such procedure.
15.9.5. D&C/ Selective Reduction/ Therapeutic Abortion/ Ectopic pregnancy related interventions. Surrogate shall receive XXXX Hundred Dollars ($000.00) or XXXX Dollars ($0000) if the procedure is executed under general anesthesia, as compensation of her time spent for each D&C, selective reduction, therapeutic abortion and ectopic pregnancy related interventions she may undergo as the result of the performance of her obligations under this Agreement, payable no later than five (5) days after the procedure.
15.9.6. C-Section. In the event Surrogate undergoes a C-Section delivery she will receive payment of XXXXXXXXX Dollars ($0000.00) for submitting to this procedure.
15.9.7. Loss of reproductive capacity. Surrogate shall receive, as indemnity, XXXXX Thousand Dollars ($0000.00) should she loose her reproductive capacity (complete or partial hysterectomy) as the result of the performance of her obligations under this Agreement; if the loss is restricted to the fallopian tubes, while matrix and ovaries remain intact, the indemnity will be of XXXXXXXXX Dollars ($0000) per lost tube. Payment should be made no later than five (5) days after a competent physician has confirmed the loss.
15.10. Insurance. The performance of the terms of this Agreement exacts that various insurance coverage be in place or be purchased to contain as much as possible the liabilities and financial burden and obligations incurred by Genetic Father.
15.10.1. Surrogate's Life Insurance. Genetic Father shall pay the cost of a term life insurance policy on Surrogate's life payable to a beneficiary named by Surrogate with a policy amount of $000,000.00. Said policy to remain in effect for twelve months and be purchased as soon as possible after confirmation of pregnancy. Surrogate agrees that the amounts provided under this life insurance policy will fully compensate her and her family in case of Surrogate’s death; the Genetic Father shall not be liable for any expense for the loss of the Surrogate’s life.
15.10.2. Surrogate's Medical Insurance shall be deemed her primary insurance. Surrogate represents that she has insurance with XXXXXXXX. She shall maintain this insurance during the terms of this Agreement and for a period of at least six weeks following the birth of the child. She shall present to the Genetic Father evidence of such coverage at any time requested by the Genetic Father. Surrogate shall not change her medical insurance coverage unless approved in advance by the Genetic Father. Surrogate’s insurance shall be deemed to be her primary insurance coverage.
15.10.3. Bills not covered by Insurance. The Genetic Father shall only be responsible for those medical expenses for which the Surrogate’s insurance is not obligated. Surrogate shall submit all bills as described above to the applicable insurance carriers in a prompt fashion. All medical bills must be submitted to the insurance carrier and denied prior to submission for payment by the Genetic Father. The medical bill and proof of insurance payment or denial shall be required for reimbursement. All medical bills must be promptly submitted to the insurance carrier and legally and properly denied prior to submission of payment by the Genetic Father. If Surrogate receives any benefits or reimbursements for which she has already received monies from Genetic Father, she shall promptly transfer these benefits or reimbursement to Genetic Father. For the pregnancy contemplated under this Agreement, no medical bills will be paid for services rendered to the Surrogate after the third month post birth.
15.10.4. Supplemental coverage. Genetic Father shall be entitled to obtain and pay for supplemental insurance coverage, at his sole option, if he decides Surrogate’s insurance is inadequate.
15.10.5. Child's Insurance. The Genetic Father will obtain and be responsible for the insurance coverage for the child resulting from this surrogacy relationship, in advance of his or her birth.
Section three - Contractual considerations
16. Representations and Warranties. The parties are making the following representations and warranties:
16.1. Surrogate, represents and warrants to the Genetic Father the following:
16.1.1. Surrogate enters into this Agreement with the clear intention to assist the Genetic Father in his parenting the child conceived and born pursuant to this Agreement, and she has no intention or interest in parenting the child or assuming the responsibilities inherent in parenting
16.1.2. To the best of Surrogate’s knowledge and belief, she is capable of conceiving and bearing a child;
16.1.3. Surrogate has had a normal menstrual period within the last month and she is not currently pregnant;
16.1.4. All personal information provided to Genetic Father, has been complete, and true to the best of her knowledge, including, but not limited to, medical information and information about previous arrest records or child abuse charges.
16.1.5. Surrogate obligations set forth in Section 2 of this Agreement are in the best interests of any child conceived as a result of the actions contemplated in this Agreement; and
16.1.6. In the event of a dispute over custody of the child, the best interests of the child shall control; Genetic Father shall have standing to seek sole custody of the child.
16.2. Genetic Father represents and warrants Surrogate the following:
16.2.1. Genetic Father enters into this Agreement with the clear intention to parent the Child conceived and born pursuant to this Agreement, and assume all obligations and responsibility for the Child regardless of whether the Child is healthy or ill, male or female, handicapped, retarded, etc., and regardless of whether more than one child is born;
16.2.2. Genetic Father has undergone all medical and laboratory tests to establish that he is free of sexually transmittable disease that could be pass on Surrogate or future Child through the AI or IVF procedure;
16.2.3. Genetic Father is capable, to the best of his knowledge to produce semen and sperm of sufficient quality and quantity to conceive a Child through the AI or IVF procedures contemplated in this Agreement;
16.2.4. Genetic Father warrants that he will not receive any blood transfusions, use contaminated needles nor engage in any activity, sexual or other, that could lead him to contract any disease that he could pass on to Surrogate or future Child through AI or IVF procedure; should he receive an emergency blood transfusion, AI procedures shall be suspended until his disease free status can be established;
16.2.5. Genetic Father has the resources and means to carry on his obligations as set forth in section 2 and to provide for the conception and support of the Child conceived as a result of the actions contemplated in this Agreement;
16.3. All parties expressly understand and agree that the professionals whose services have been retained under said Agreement do not in any way warrant that:
16.3.1. Surrogate will in fact conceive a child through in artificial insemination procedures;
16.3.2. The child, if conceived, will be a physically and mentally healthy child, free of congenital or genetic defects;
16.3.3. Surrogate will comply with the terms and provisions of said Agreement;
16.3.4. Genetic Father will comply with the terms and provisions of said Agreement; or that
16.3.5. Any child born as a result of this Agreement will be deemed the legal child of Genetic Father, and not the legal child of Surrogate.
16.4. No Untrue or Material Misstatements. The representations and warranties made by Surrogate in this Agreement do not contain any untrue statement of a material fact or omit to state a fact necessary in order to make the statements herein, in light of the circumstances under which he were made, not misleading.
17. Assumption of Risk. The parties acknowledge the following:
17.1. The parties specifically assume the risk that the Surrogate procedure has never been legally tested within the State of XXXXX and any legal action initiated as a result of this Agreement by any party may constitute a case of first impression within the State of XXXXXX.
17.2. In the event a child is born with physiological abnormalities and Genetic Father refuses to parent the child, Genetic Father may be required to pay child support for the child, whether or not Surrogate chooses to parent the child.
17.3. Surrogate agrees to assume all risk including the risk of death which may be incidental but not limited to conception, pregnancy, childbirth and/or postpartum complications. Said risks have been explained and are understood by Surrogate . Surrogate agrees to assume all of said risks, and release Genetic Father, including any medical professionals and others involved in any aspect of this Agreement from any legal liability.
17.4. In the event a child is born with physiological abnormalities, Genetic Father may not be able to legally refuse to parent his biological child, unless he chooses to place the child for adoption.
18.1. Genetic Father acknowledges that he has retained independent counsel to advise him on all applicable law, rights, duties, liabilities, terms and conditions as it relates to all matters relevant to this Agreement, and that neither the Surrogate, her representatives nor agents have made any representations as to the legal consequences of this Agreement for Genetic Father.
18.2. Surrogate acknowledges that she has forfeited her right to an independent counsel to advise her on all applicable law, rights, duties, liabilities, terms and conditions as it relates to all matters relevant to this Agreement, and that neither the Genetic Father nor his representatives nor agents, have made any representations as to the legal consequences of this Agreement for Surrogate.
18.3. In the event of litigation between the parties and/or his families or estates, and/or any state, nation, municipality, governing body or party, counsel retained in connection with the negotiation, preparation and execution of this Agreement, shall not be required to represent any party. All parties will assume full responsibility for the payment of all attorney fees, and associated costs and expenses of litigation.
19.1. The parties shall maintain the confidentiality of their relationship and protect the identity of all other involved parties, unless otherwise agreed upon in writing by all parties. None of the parties shall provide, or allow to be provided, any information to the media, public or any other individual regarding his involvement in or the terms of this Agreement. Notwithstanding, this confidentiality provision shall not prohibit any party from disclosing and discussing generally his own involvement in a Surrogate program with significant others, relatives or friends, but the identity of the other parties and the specific terms of this Agreement shall not be disclosed to parties other than significant others, relatives or friends unless otherwise agreed upon by all parties in writing.
19.2. It may be necessary to obtain medical information from a party to this Agreement. Therefore, both parties expressly waive the privilege of confidentiality and permit the release of their respective medical report or other information obtained as a result of the report to each other or each other’s Physician. Each party agrees to provide medical information within a reasonable time from the request for same.
20.1. Escape clause. In the event that pregnancy is not achieved within a reasonable time considering Surrogate’s age and physical condition, and after each unsuccessful AI or IVF attempt, this Agreement may be terminated by written notice from any party. After such termination, no further liability will result on the part of any party.
20.2. Material breach. In the event that any party materially violates any of the provisions stated in this Agreement without sufficient legal excuse, such violation shall constitute a material breach of the contract. This Agreement shall terminate forthwith at the option, and upon written notice from, the aggrieved party or parties. In the event Surrogate breaches this Agreement, she must reimburse Genetic Father for all sums expended pursuant to this Agreement plus interest at the maximum allowable rate at the time the breach was discovered. In the event Genetic Father breaches this Agreement, he shall be responsible for all expenses incurred by Surrogate pursuant to paragraph 15.
20.3. Remedy for breach. Continued performance after a material breach shall not constitute a waiver, unless agreed upon in writing by all parties, and all rights and retained by the aggrieved party will remain in force. The violating party shall be informed in writing of the alleged violation and shall have a reasonable opportunity to cure the breach, if possible.
20.4. Survival. The representations and warranties set forth in Paragraph 16 of this Agreement shall survive termination of this Agreement.
21.1. Counterparts. This Agreement may be executed in two or more counterparts, each of which shall be an original but all of which shall constitute one and the same agreement.
21.2. Entire Agreement. This Agreement constitutes the entire Agreement between the parties hereto with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements, representations, negotiations and understandings, verbal and written, with respect to the matters covered hereby. The attached Medical Information Release and any fully executed Addendum are made a part of this Agreement by reference.
21.3. Headings. The Section and subsection headings contained in this Agreement are for reference purposes and shall not affect in any way the construction or interpretation of this Agreement only.
21.4. Assignment. This Agreement and any right hereunder may not be assigned by any party without the express written approval of all other parties.
21.5. Binding Effect. The terms and conditions of this Agreement shall extend to, inure to the benefit of and be binding upon the parties hereto and his respective permitted successors and assigns.
21.6. Amendment. This Agreement may be amended, modified or supplemented, and a right hereunder may be waived only by written instrument duly executed by all the parties.
21.7. Severability. If any provision of this Agreement is declared by a court of competent jurisdiction to be invalid or unenforceable, or if any provision hereof is or becomes impracticable, the remaining provisions and the Agreement as a whole shall nevertheless continue in full force and effect without being impaired or invalidated in any way, and the parties shall replace the invalid, unenforceable or impracticable provision with a valid, enforceable or practical provision which shall meet the economic aims of the invalid, unenforceable or impracticable provision as closely as possible.
21.8. Other Documents. The parties hereto agree to execute such other and further documents as may be necessary to carry out the purposes hereof.
21.9. Cumulative Rights. The rights of the parties hereto are cumulative, and no exercise or enforcement by a party of any right or remedy hereunder shall preclude the exercise or enforcement by that party of any other right or remedy herein contained, or to which it is entitled by law.
21.10. Arbitration and Mediation. Any controversy arising under or relating to the actions contemplated in this Agreement shall be submitted to first to mediation, and then if unsuccessful, to binding arbitration according to the rules and practices of the American Arbitration Association. The prevailing party shall be entitled to attorneys’ fees and reasonable costs.
21.11. Jurisdiction. The Ruling Court for this Agreement shall be that of XXXXX County, XXXXX. Nevertheless, since such Court may not have ruling power over the Parental rights and custody determination clauses included in this Agreement, it may have to limit its Rulings to the provisions applicable under its jurisdiction.
21.12. Voluntary Action. Each party state that by signing this document acknowledges he or she acknowledges his or her understanding and acceptance of the provisions of this Agreement and that he signs the agreement voluntarily and freely with full and complete knowledge. Each party further states that he or she has no reason to believe that any other party to this Agreement did not freely and voluntarily execute this Agreement.
21.13. Notices. All notices or other communications required and permitted under this Agreement shall be in writing, and shall be given by first class registered mail, postage prepaid, or by telex, telefax or telegram, and addressed as follows:
Genetic Father : John Doe
123 Hopeful road,
Fertilcity XX, 98765
Surrogate : Jane Smith
4567 Great-Heart avenue,
Blesseville, XX, 43210
Any such notice shall be deemed to be effective on the date of actual receipt. Either party, by notice given as provided above, may change the address to which future notices shall be sent.
THIS CONTRACT CONTAINS A BINDING ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES.
IN WITNESS WHEREOF, the parties have entered into this agreement as of the date first written above.
Addendum 1- Acknowledgement and assumption of risks regarding the use of unquarantined semen
Guidelines issued by the American Society for Reproductive
Medicine (ASRM) provide that all genetic material produced for
insemination or transfer should be cryopreserved and quarantined
for at least 180 days. The donor(s) should be tested at the
time the semen/ovum/embryo is produced and re-tested before the
specimen is released. ASRM recommendations are based on the
increased risk of sexually transmitted diseases (including but
not limited to AIDS-HIV), associated with the use of fresh
semen/ovum/embryos. The extent of this risk has not been
quantified, but is considered to be significant. Each party
signing below acknowledges and agrees to the following:
Surrogate Signature: _____________________________
If the Surrogate dies, she shall be connected to a life support system. If she dies or is in a coma, she should be covered with two blankets or a comforter. There should be her favorite soothing music played in the room at least 4 hours a day.
Partner shall be admitted in delivery room if he chooses to. C-section delivery shall be executed with the same protocols as if the Surrogate was alive (or not in coma), avoiding unnecessary invasion or mutilation to Surrogate's body although baby's safety and health shall prevail in this situation.
Genetic Father Signature: ___________________________________