How to Review a Surrogacy Agency Contract Before You Sign

An agency agreement and a surrogacy arrangement get discussed as the same document far more than they should be. One is a commercial contract between a family and a service provider. The other is a set of arrangements about a pregnancy that will end in a birth. Conflating them is how a family signs something that describes the second in language written for the first.

The review below follows the order a lawyer would take: what the agency is obliged to do, what happens when the plan changes, who pays when something slips, and what remains undefined. Four questions and the clauses that answer them.

Clause One: Scope of Service

Scope is where the differences hide. A well drafted scope names the screening, the matching, the coordination, the medical liaison and the termination obligations, and it says which of them are conditional. A vague scope says the agency will facilitate the process, which is a sentence that describes nothing.

Ask what happens if a match is not made within a stated period. Some agreements end, some roll into a second fee and some simply continue with no end date. That detail is worth more than the headline agency fee, because it decides whether the family’s money is committed for a year or for eighteen months.

Clause Two: Fee Structure and What Triggers It

Fees split into three distinct things that are frequently blended into one number. An agency fee for the service. A clinic fee for treatment. A carrier compensation figure set by the arrangement. When a quotation presents these as a single total, the family cannot tell which line is negotiable and which is fixed.

Read the trigger for each instalment. A fee payable on signing, on matching, on transfer and on birth behaves very differently from a fee payable on signing only. The first is a schedule of value delivered, and the second is a commitment.

Insist that any refundable element states the refund condition expressly. Refund clauses written as an intention rather than a condition are the single most common source of a dispute in this area, and they are almost always drafted that way.

Clause Three: Consent, Withdrawal and What Follows

This is the clause families skim and later wish they had read twice. It covers what the carrier may withdraw from, what notice she gives, and what happens to the plan and the money when she does. Whether a withdrawal for a medical reason is treated the same as a withdrawal for another reason is the whole question.

Ask for a written answer on the specific situation. A clause that distinguishes a medical withdrawal, a personal withdrawal and a termination by the agency is doing real work. One that simply says either party may withdraw does not distinguish anything, and it leaves the family carrying every consequence.

Clause Four: Liability and Indemnity

Liability decides who pays when a delay costs months. A clause that accepts responsibility for a missed filing window and one that does not can look identical in a first quotation and behave like opposite numbers three months later.

Read the clause in the context of a registration delay specifically, because that is the failure that costs the most weeks. If the clause covers only clinical error, the family is carrying the registration risk alone, and no discount compensates for it.

Clause Five: Confidentiality and the Child’s Record

Confidentiality is usually drafted to protect the agency’s name rather than the child’s future. A clause that permits disclosure to a clinic, a lawyer or an insurer without limit will also permit it to anyone the agency later adds to the list.

What belongs in the contract is the opposite. A named list of who may hold the file, a stated purpose for each disclosure, and a commitment that the record follows the child. Records that follow a birth are a legal obligation in many places and a negotiating point everywhere.

Clause Six: Governing Law and Where It Bites

The governing law clause decides which country’s courts interpret the agreement, and it is the clause most often signed without reading. A family resident in one country, an agency in another and a clinic in a third creates a three way problem that the clause silently resolves in favour of whoever drafted it.

Ask for the governing law to match the country where the treatment happens. If it cannot, ask the agency to explain which outcome the clause protects. The answer is usually a useful summary of the whole relationship.

Questions to Put in Writing Before Signing

Ask for the scope in named deliverables, the fee triggers for each instalment, the refund condition in words, the distinction between a medical and a personal withdrawal, the liability position on a registration delay, the list of parties holding the file, and the governing law. Seven questions, one written reply each.

Agency that answers all seven in specific language is a different commercial proposition from one that answers with reassurance. Neither is a guarantee, but only one can be held to a sentence.

What the Agency Is Actually Obliged to Do

A service obligation written in verbs is enforceable; one written in adjectives is not. Screening a specific number of candidates, arranging a matching appointment within a stated period and providing a named coordinator are three different promises with three different remedies.

Ask for the obligation list as a numbered schedule attached to the agreement rather than a section in the body. Attached schedules get reviewed and renewed; body text does not, and it is the body text that ages badly.

Timing, Delays and the Clause That Decides Them

Registration delay is the failure that costs the most weeks, and it is almost never covered. A clause that accepts responsibility for a missed filing window and one that does not can look identical in a first quotation and behave like opposite numbers three months later.

Ask which party owns the filing deadline and what happens if it is missed. The ownership question is the useful one, because a family who knows who holds the deadline can follow up with the right person.

Medical vs Personal Withdrawal, Stated Separately

These two cases should not carry the same consequence. A carrier withdrawing because a pregnancy is not viable is in a different position from one who changes her mind, and an agreement that treats them identically is leaving the family to absorb everything.

Ask for the difference in writing with the financial effect on each. That single sentence is the most reliable indicator of whether an agreement was drafted for the family or only for the agency.

Getting the Agreement Reviewed Properly

Agreements reviewed only by the agency’s own lawyer will not surface the clauses that protect the family, because that lawyer acts for the agency. An independent review in the jurisdiction where treatment happens is a different exercise and usually costs less than one round of the problem it prevents.

The review is worth scheduling before the first instalment, not after it. Most fee structures attach the deposit to a specific clause, and once it is paid the clause becomes considerably harder to change.

Fees, Instalments and the Refund Condition

Refund clauses written as an intention rather than a condition are the single most common source of dispute in this area, and they are almost always drafted that way. An intention can be reviewed by a manager; a condition can be enforced.

Ask for the refund condition to be stated as a trigger with a number attached: a stated percentage within a stated period after a stated event. If the programme will not put the trigger in writing, the practical assumption should be that the money is not coming back.

Frequently Asked Questions

Should I use an agency’s lawyer or my own? Your own, in the jurisdiction where the treatment will happen. The agency’s lawyer acts for the agency, and an agreement reviewed only by that lawyer will not surface the clauses that protect you.

Is a high agency fee a sign of quality? Not reliably. A fee measures what the agency charges, not what it discloses. Ask for the scope in writing and compare the deliverable, not the number.

What if the contract says either party may withdraw? Treat it as unfinished rather than neutral. Ask for the medical withdrawal case to be separated out and the financial consequence stated, because that distinction is what protects the plan.

Who should hold the medical file after the birth? The record should follow the child, and the contract should name everyone permitted to hold a copy. A clause that permits unlimited disclosure is a clause that will be relied on at some point.

For how these arrangements are described generally, see surrogacy across jurisdictions, and for the clinical side professional practice guidance on assisted reproduction.