Legal Foundations: Essential Components Of Surrogacy Agreements


In today’s world, surrogacy presents a hopeful path to parenthood for those facing fertility challenges. Central to this journey is the surrogate motherhood agreement, which outlines rights, responsibilities, and expectations. Before embarking on the surrogacy journey, drafting a legally binding contract is essential for all parties involved.

Surrogate motherhood agreements are legally binding, must be confirmed by a court, and are best compiled by an experienced family attorney. They include essential information such as confidentiality, financial terms, medical evaluations, termination clauses, etc.

Embarking on the journey of surrogacy involves myriad legal complexities, underscoring the importance of a well-crafted surrogate motherhood agreement. Let’s delve into the critical components that shape these agreements, ensuring clarity, fairness, and legal compliance for all stakeholders.


The Essential Components Of A Surrogacy Motherhood Agreement

Drafting a surrogacy motherhood agreement requires meticulous attention to detail and a nuanced understanding of legal frameworks. While the components outlined below provide a general overview, it’s crucial to recognize that each agreement is unique, stemming from the personal circumstances and preferences of the parties involved.

Employing the expertise of an experienced family attorney is paramount, as well as ensuring that these agreements are drafted with precision and consideration for all contingencies. These contracts serve as the foundation for the surrogacy journey, embodying the hopes, expectations, and legal protections of everyone involved.

As such, they must be crafted correctly to safeguard the interests of both intended parents and surrogates alike. The following outline offers a glimpse into the essential components of surrogacy motherhood agreements, acknowledging their inherent sensitivity and the need for professional guidance.


1. Confidentiality:

Confidentiality clauses protect all parties’ privacy, prohibiting the disclosure of sensitive information related to the surrogacy arrangement.


2. Surrogate’s Conduct:

This section outlines the surrogate’s responsibilities and expectations regarding her behaviour during the surrogacy process, ensuring a respectful and cooperative relationship.


3. Surrogate’s Charges And Payment Terms:

Clear terms regarding compensation for the surrogate, including any medical expenses, living costs, and a breakdown of payment schedules, are essential for transparency and financial security.


4. Duration And Termination:

This clause terms the duration of the agreement and outlines conditions under which either party may terminate the arrangement, providing clarity and recourse in case of unforeseen circumstances.


5. Representation And Warranties:

Both parties make representations and warranties regarding their legal capacity, intentions, and responsibilities, ensuring mutual understanding and agreement.


6. Medical Risks And Indemnities:

Detailed provisions regarding medical risks associated with pregnancy, including indemnities for the surrogate, help manage potential liabilities and protect all parties involved.


7. Medical Evaluations And Screenings:

This section outlines the necessary medical evaluations and screenings for the surrogate and intended parents, ensuring the safety and health of all parties and the prospective child.


8. Abortion/Termination Of Pregnancy:

Clear guidelines regarding the circumstances under which abortion or termination of pregnancy may be considered, as well as the parties’ rights and obligations in such scenarios, are outlined.


9. Confirmation Of Genetic Parentage:

Procedures for confirming genetic parentage and establishing legal parentage of the child born through surrogacy are addressed, providing certainty and legal recognition.


10. Custody And Parental Rights:

Parental rights and custody arrangements post-birth are delineated, ensuring a smooth transition of parental responsibilities and legal recognition of the intended parents.


11. Breach Of Agreement:

Remedies and consequences for breaching the terms of the agreement are specified, protecting the interests of all parties and providing recourse in case of disputes.


12. Abnormal Child/Gender Of Child:

Provisions addressing the possibility of an abnormal child or the gender of the child are included, outlining the parties’ rights and responsibilities in such circumstances.


13. Stillbirth And Miscarriage:

Procedures and support mechanisms in the unfortunate event of a stillbirth or miscarriage are outlined, providing emotional and logistical guidance during difficult times.


14. Dispute Resolutions:

Mechanisms for resolving disputes amicably, such as mediation or arbitration, are detailed, promoting effective communication and conflict resolution.


15. Amendments:

Procedures for amending the agreement, including requirements for mutual consent and formal documentation, allow for flexibility and adaptation to changing circumstances.


16. Governing Law:

The governing law clause specifies the jurisdiction and legal framework applicable to the agreement, ensuring consistency and enforceability.


17. Status Of Parties:

Clear delineation of the legal status of the parties involved, including their rights, responsibilities, and obligations, establishes a framework for a legally binding agreement.


18. Appropriate Legal Provisions:

Provisions regarding warranties, exclusions, indemnities, and other legal protections are included to mitigate risks and ensure legal compliance.


19. Miscellaneous Provisions And Restrictive Covenants:

Additional provisions addressing miscellaneous matters and restrictive covenants, such as non-compete clauses or confidentiality agreements, may be included as needed.


Ensuring Legal Validity: Confirmation By High Court

Surrogacy agreements, vital for legal clarity, must undergo confirmation by the High Court. This confirmation formalizes the arrangement, adhering to legal standards and regulatory requirements. Before a surrogacy agreement can proceed, it must pass through the scrutiny of the High Court to ensure its legal validity and compliance with regulations.

There are a few necessary documents and steps that need to be included in a surrogacy agreement, and these include the following:


1. Consent Of Spouses Or Partners:

The consent of spouses or partners is essential to confirm the agreement. This requirement ensures that all parties involved are fully aware of and in accord with the surrogacy arrangement.


2. Competence And Suitability:

The commissioning parents and the surrogate mother must be competent to enter the agreement and suitable for their respective roles. This competency includes understanding the legal consequences of the agreement and having the necessary qualifications and background.


3. Altruistic Motives:

Surrogacy agreements must be entered into for altruistic reasons, not commercial gain. This ensures the surrogate mother’s motives are genuine and focused on helping others build their families.


4. Surrogate Mother’s Eligibility:

The surrogate mother will need to meet specific eligibility criteria, including having a documented history of at least one pregnancy and viable delivery, as well as having a living child of her own. These criteria help ensure the surrogate’s suitability and capability to undergo the surrogacy process.


5. Psychological Assessment Of Existing Children:

According to a recent ruling by Judge Neukircher at the High Court in Pretoria (2022), existing children of a woman agreeing to be a surrogate must undergo psychological assessments to make sure the surrogacy does not have a detrimental effect on their mental health. This assessment ensures the psychological well-being of all children involved in the surrogacy arrangement.

A well-drafted surrogate motherhood agreement is essential for navigating the complexities of surrogacy while protecting the interests of all parties involved. By addressing key components such as confidentiality, financial terms, medical evaluations, and dispute resolutions, these agreements provide a framework for a successful and legally compliant surrogacy journey.

At Burnett Attorneys and Notaries, we recognize surrogacy arrangements’ intricate legal and emotional intricacies. Our team approaches each case with compassion and expertise, understanding the delicate nature of these situations. With our extensive experience in family law, we are equipped to draft meticulously crafted surrogacy agreements that guard the rights and interests of all parties involved. Please don’t hesitate to contact us if you would like to discuss any aspects surrounding surrogacy or surrogacy agreements.