What should I include in my Independent surrogacy agreement?

I just started my journey with a surrogate in Canada. The clinic told me I need a written Surrogacy Agreement between me and my surrogate before starting any procedures. We haven’t hired our lawyer yet, so they asked me to put together a non-lawyer agreement between me and my surrogate. What should I should I include in this?
–Erika

Good morning Erika.

Thanks for this great question! All couples need to negoitaiate a contract with theri surrogate, and it’s the first test of your working relationship with your surrogate. You need to strike balance between being forthright but not pushy. Take this moment to show you can work with your surrogate as partners. You don’t want to be unreasonable or overbearing.

I believe you should be very transparent with your surrogate. Think long and hard about all the restrictions you would place on your own behavior if you were carrying the baby. Make up a complete list, and then walk thorough it with your surrogate.

Don’t just lob over a list of restrictions to your surrogate. Talk to her and propose a comprehensive list, and then graciously accept her feedback. Be exhaustive, but also be willing to compromise. Don’t put your surrogate on the defensive. This is a two-way conversation, and you are not in a position to make demands. But it is absolutely your right to make requests… do it NOW rather than later.

For a starter, you should consider the benefits as shown in this video (which is for the US, but also valid for Canada).

Also consider any unique/special requirements you may have for her. That includes special rights you want for yourselves. Also list the things you don’t want her to do or eat when she is pregnant.

See some examples below. These are some items that were included in a rather restrictive surrogacy contract from a previous client. My opinion is that this is overly restrictive, but you can see what type of activities should be included…

• You may ask your surrogate to allow the Intended Parents to attend all prenatal office visits and ultrasound examinations with the approval of Gestational Carrier’s Obstetrician or IVF Physician.
• You may ask your surrogate to waive her doctor-patient privilege, and to sign a release allowing the Intended Parents to receive and review medical records related to the pregnancy.
• You may ask your surrogate not to submit to drug, alcohol, nicotine testing and/or testing for sexually transmitted and/or infectious diseases (within reason frequency).
• You may ask your surrogate not to participate in dangerous sports or hazardous activities, strenuous physical activity or heavy lifting
• You may ask your surrogate not to receive any medical care or treatment from any non-licensed individual. (Chiropractic treatment or massage therapy may be provided by a licensed practitioner if her Obstetrician has given written consent.
• You may ask your surrogate not to fly by airplane during pregnancy unless she receives written authorization from her Obstetrician. (If it’s important the baby be born in the surrogates’ legal jurisdiction, you may specifically ask that she not travel outside her state of residence after the 28th week of pregnancy.)
• You may ask your surrogate to take prenatal vitamins and to maintain a healthy diet as generally recommended by her obstetrician.
• You may ask your surrogate not to smoke cigarettes, marijuana, drink any alcoholic beverages or to inject any substances, including prescription or over-the counter medications, unless authorized by her Obstetrician. (A very restrictive agreement may also include: medicinal herbs, essential oils, aromatherapy, and caffeinated beverages.)
• You may ask your surrogate not to consume raw fish or shellfish, swordfish or tuna (more than six ounces per week), mold-ripened soft cheese, raw or partially cooked eggs, raw meats, any deli meats, hot dogs, live products (except yogurt), pates, meat spreads, liver, raw peanuts, unpasteurized dairy products and juices, raw sprouts or unwashed fruits or vegetables.
• You may ask your surrogate not to have any elective cosmetic surgery, body piercing, acupuncture, tattooing or procedure which requires the breaking of skin or drawing of blood.
• You may ask your surrogate to avoid any home pesticides, chemical cleansers, hair spray, aerosol sprays, or paint without adequate ventilation.
• You may ask your surrogate not to use any prescription, non-prescription, homeopathic or herbal medication without the written consent of IVF Physician or Obstetrician. (That could include several popular and specific examples like Ibuprofen, Aleve, Advil, Ambien.)
• You may ask your surrogate not to use nail polish, hair sprays, hair dyes, tanning salons unless approved by the IVF Doctor or her obstetrician.
• You may ask your surrogate to avoid any exposure to x-rays, radiation, toxic chemicals or communicable diseases.

Many of these restrictions are obvious and you might think they go without saying… but be explicit and say them anyway. It’s so much easier to get this out on the table before you being the journey rather than finding out once you’re pregnant that your surrogate is addicted to aromatherapy (or some other seemingly innocuous pleasure) and is unable to sacrifice that habit.

I hope this is useful,
— Bill