Almost immediately after we said YES, our surrogate / we engaged with our respective lawyers to put a contract together. And this exercise was an eye opener and probably one of the most important aspects to get right as part of our surrogacy journey to become LGBT+ parents.
I have read many emotional online comments and opinions about surrogacy “contract negotiation” over the years. I feel there are some misconceptions about what this is and isn’t.
For us and our surrogate, this was the first time we would really engage on the technical aspects of the journey. And it is fair to say my husband and I had a lot to learn. Our surrogate was already up to date having gone through the process before. But she was concerned with the demanding reputation of our lawyer.
Never let lawyers manage a contract negotiation for you!
Or at least not when it comes to defining how human relationship should be handled. In their desire to protect us, there was a risk our lawyer would go the “extra-mile” and this might not only be unnecessary, but it might also damage our relationship with our surrogate from the outset.
So ahead of letting our respective lawyers do their work, the three of us had a long discussion on the items we needed to agree on and could prove contentious. This covered a large array of topics from food to sex life or social media posting, etc. As we engaged in this discussion with her, it became clear the journey was going to be very intrusive; but it was necessary to lay out in the open all aspects of daily life people in a natural pregnancy would not even think about and take for granted.
This included in more details and in no order
- Psychological assessment
- Medical examinations in preparation and during the pregnancy
- Counselling program
- Sexual abstinence
- Prenatal obligations
- DNA testing of the child
- Early termination of pregnancy
- Child custody and parental rights
- Relationship with the child
- Will
- Death of intended parents
- Separation or divorce of intended parents
- Allowed expense structure
- Confidentiality including social media disclosure
- Travelling
Going through the key items enabled us to have an open discussion and agree on how we would work with each other.
Taking food as an example. Our lawyer was willing to list all the type of products she could and could not eat. Assuming it was even possible to get them all, what would be the point. We could not possibly check everything she would be ingesting.
We knew she had a healthy lifestyle, did not drink much, did not smoke, etc. and she had had three very healthy children. She knew better than we did what to have and not to have and whatever her diet was, it had to work for her. She wanted to follow Health Canada guidance and we agreed to reference this in our contract with no further details.
On a different topic, social media disclosure was also part of the discussion. It was as much about protecting our privacy as intended parents as it was about hers and her family. For example, we agreed we would wait to become “friends” on Facebook. We all agreed we would not disclose any information on the pregnancy till we were all ready. And we continue to this day; we ask her in the same she asks us.
On a final but critical point: travelling. We had to agree with her on where she could travel to in the last few months of her pregnancy. There was a clear question of safety; she needed to have an hospital at reaching distance. But equally important, it was about ensuring she would give birth in her own province. Not in a different Canadian province, or worse, in the USA which would have had material legal impacts. In Canada, surrogacy laws differ from province to province and never mind going to a different country all together. If the baby had been born in the US, they would have been American, not Canadian. The last point applies to all by the way; so future parent beware when you travel whilst being pregnant.
As the discussions progressed, it became very clear to me that the key underlying topic of discussion was about how to “control her” and more specifically
How much control we, as intended parents, wanted to have over the surrogacy journey. And the realisation that practically we would have very little regardless of what was written on the piece of paper.
Stating the obvious, but a woman is in control of her own body by law or otherwise. So whatever we said or wanted would be unenforceable, including and especially abortion. In addition, we were a few thousand kilometres away with no practical way to “check” what she was doing.
We needed to operate on trust and this contract negotiation helped us to build that trust and learn how to work with each other including on having more serious and difficult discussions.