פונדקאות: TRADITIONAL SURROGACY CONTRACT
TRADITIONAL SURROGACY CONTRACT
THIS AGREEMENT is made as of _____________________, 20____, by and between _______________, the acknowledged (intended) father (hereinafter referred to as the "Intended Father"); ________________, the acknowledged (intended) mother (hereinafter referred to as the "Intended Mother"); ____________ (hereinafter referred to as "Surrogate") and __________________ (hereinafter referred to as "Surrogate's Husband"). The Intended Father and Intended Mother are hereinafter collectively referred to as the "Intended Parents". The Surrogate and Surrogate's Husband are collectively referred to as "Surrogate Couple". The Surrogate, Surrogate's Husband and the Intended Parents are collectively referred to hereinafter as the "Parties".
I. PURPOSE AND RECITALS
The Intended Parents are a married couple living together as husband and wife, both are over the age of twenty-one (21) years. Intended Parents desire to have a child(ren) biologically related to one or both of them and desire to enter into the following Agreement, in order that they may become parents by means of the Traditional Surrogacy contemplated in this Agreement. The Intended Mother warrants that she is incapable of conceiving or of carrying a pregnancy to term, or has been advised by a physician that a pregnancy would be dangerous to her health and/or the health of any child she may conceive.
The Surrogate is at least twenty-one (21) years of age, a resident of the state of _____________, has borne ______ children, is currently married and also desires to enter into this Agreement.
The decision of the Surrogate to enter into this Traditional Surrogate Contract, is a fully informed decision made only after the careful and unemotional reflection of all aspects of this Agreement. The Surrogate has come forward voluntarily, and in the absence of economic or emotional duress of any type or kind, and has freely chosen, with the support and consent of her Husband, to enter into this Surrogate Contract.
Surrogate states and declares that she does not desire to have a parental relationship with any child born pursuant to this Agreement. It is her further belief that the child or children (hereinafter collectively referred to as "Child") conceived pursuant to this Agreement are morally and contractually the Child of the Intended Parents, and that it is in the best interests of the Child that said Child should be raised by the Intended Parents without any interference by her, or her Husband, and without any retention, or assertion by her or her Husband of any parental rights.
The Surrogate Couple further represent that they will freely and readily, within a reasonable time and only if necessary to effectuate the intent of the Parties hereto, assist in legalizing the natural parent-child relationship, and in order to aid the Intended Parents in the formation and/or continuance of their parent-child relationship with the Child. The Surrogate Couple shall immediately relinquish physical possession of the Child to the Intended Parents upon the birth of the Child, as such is anticipated to be in the best interest of the Child. Notwithstanding the foregoing, it is the specific intent of each and every Party to this Agreement, that the Surrogate Couple does not have any parental rights toward the Child and are not the legal parents of any Child conceived and born pursuant to the conduct contemplated within this Agreement.
While the undersigned are entering into this Agreement with the intention of being fully bound by its terms, each understand that this Agreement, in whole or in part, may be declared void as against public policy by the _____________ courts and/or legislature, or held unenforceable, in whole or in part, by a court of law. All Parties, however have been informed and advised of the California Supreme Court decision in (JOHNSON v CALVERT, (1993) 5 Cal. 4th 84), and agree said decision applies to and governs this Agreement and the conduct contemplated thereby.
The Parties voluntarily enter into this Agreement expecting to be bound by each of the terms and conditions as set forth herein, notwithstanding any subsequently approved or enacted legislation to the contrary.
The sole purpose of this Agreement is to enable the Intended Parents to have a Child through the use of the services of a surrogate. This is not intended to be an agreement for the purchase of a Child, nor for Surrogate's consent to surrender a Child for adoption.
Surrogate Parenting is a new area of the law; and for that reason, all Parties to this Agreement acknowledge that no warranties have been made, or can be made, as to the ultimate results, costs, liabilities and/or obligations of the Parties relative to each other which may result from any judicial process arising and resulting from the actions and/or conduct of the Parties to this Agreement.
A. In consideration of the mutual promises contained herein and with the intentions of being legally bound thereby, the Parties agree as follows:
1) The Surrogate, based upon all information available to her, represents that she is capable of bearing healthy and normal children;
2) In reliance upon this representation, the Intended Parents are hereby entering into this Agreement with the Surrogate, whereby:
The Surrogate will be artificially inseminated with the Intended Father’s sperm.
3) The "Child" means each child born to the Surrogate who has conceived pursuant to the term of this Traditional Surrogate Contract;
4) The Surrogate Couple hereby agree to cooperate in all respects with the Intended Parents to undergo artificial inseminations for the Intended Father, and further agree to cooperate with all legal actions to establish him as the Child’s biological parent, including the amendment of the Child’s birth certificate as needed.
5) The birth of the Child shall take place in the State of ______________.
6) The Surrogate or the Intended Parents may withdraw their consent to this Agreement and may terminate this Agreement with written notice given to the other party anytime prior to conception by the Surrogate subject to the provisions provided below.
B. If demanded by the Intended Parents, the Intended Parents may raise, via appropriate procedure in any Court of competent jurisdiction, the issue of legal determination of paternity whether by H.L.A. Testing or any other legally recognized test commonly used to determine paternity.
The exclusion of the Intended Father as parent by the paternity test shall constitute an incurable material breach on the part of the Surrogate and her Husband, except in the event that an act of the treating doctor was the causative factor resulting in the exclusion of the Intended Father as parent of any Child born in accordance with the conduct contemplated under this Agreement. Absent such act by the treating physician, the Intended Parents shall have no obligations whatsoever with respect to the Child.
C. Upon execution of this Agreement, the Surrogate hereby agrees to submit to continuing psychological counseling if deemed necessary by the Parties. Said counseling shall end three (3) months after the birth of the Child. The Intended Parents may additionally undergo psychological counseling and support at their option.
1) The Intended Parents shall pay for all costs associated with psychological review, evaluation, and/or individual counseling sessions.
2) The Surrogate Couple represent that they have signed or will sign a comprehensive psychotherapist release allowing their Psychotherapist or their Psychologist (hereinafter referred to as "Psychotherapist") to disclose to the Intended Parents all communications, verbal or non-verbal, made by the Surrogate and her Husband, prior to the Artificial Insemination procedure, including any opinions, perceptions or conclusions formed by the Psychotherapist which could reasonably relate to the Surrogate and her Husband's suitability for performance pursuant to the terms of this Agreement. Said release will also allow Psychotherapist to disclose to the Intended Parents all communications after the Artificial Insemination procedure, verbal or non-verbal, made by the Surrogate and her Husband including any opinions, perceptions or conclusions formed by the Psychotherapist which could reasonably relate to the Surrogate the Surrogate Husband's continued suitability for performance pursuant to the terms of this Agreement.
3) The Intended Parents represent that they have signed or will sign a comprehensive psychotherapist release allowing their Psychotherapist to disclose to the Surrogate Couple all communications, verbal or non-verbal, made by the Intended Parents, prior to the Artificial Insemination procedure, including any opinions, perceptions or conclusions formed by the Psychotherapist which could reasonably relate to the Intended Parents' suitability for performance pursuant to the terms of this Agreement. Said release will also allow Psychotherapist to disclose to the Surrogate all communications after the Artificial Insemination procedure, verbal or non-verbal, made by the Intended Parents including any opinions, perceptions or conclusions formed by the Psychotherapist which could reasonably relate to the Intended Parents' continued suitability for performance pursuant to the terms of this Agreement.
All medical and psychological information pertaining to the Surrogate Couple and the Intended Parents shall remain confidential in accordance with this Agreement. The Parties agree that after the Child is born, a court may permit access to the information, if necessary, for the best interests of the Child.
D. Prior to any artificial insemination procedure, the Parties agree to undergo a physical examination to determine whether the physical health and well-being of all Parties to this Agreement is protected to the satisfaction of the Parties. The physical examination included testing for all types of venereal disease, including HIV and AIDS, in order to protect the health of the Surrogate and the Child. The Surrogate Couple and Intended Parents agree to undergo any medical testing that the above-mentioned physician deems necessary while this Agreement is in effect.
E. Prior to any artificial insemination procedure, the Parties agree to undergo a psychological evaluation to determine whether or not they are psychologically capable of fullfilling this agreement.
F. The Surrogate represents that she has consulted with a physician or surgeon of her choice, and is aware of all medical risks, including death, which may result from the conduct contemplated by this Agreement. The Surrogate acknowledges that said risks involve medical examinations, pregnancy, childbirth and postpartum complications, if any. These risks have been explained to the Surrogate by a physician following a thorough medical examination of the Surrogate. The Surrogate Couple agree to assume all of the above stated risks, and hold harmless against these risks, the Intended Parents, the attorneys representing the parties herein, including but not limited to the professionals and all others contemplated and/or involved in any aspect of performance under the terms of this Agreement. This does not release the medical professionals from liability for damages or injury due to acts of willful misconduct, negligence and/or medical malpractice. The Surrogate represents that she has signed all necessary medical release forms. The Intended Parents represent that they have signed all the necessary medical release forms.
G. The Intended Parents shall take custody of, and assume legal and parental responsibility for, any Child, as defined herein, regardless of whether the Child suffers from any congenital or other abnormalities or defects, immediately after the Child's birth, and the Parties to this Agreement acknowledge that they are aware and have been advised of said risks of such abnormalities and/or defects by their physician.
H. The Surrogate agrees that she will not have sexual intercourse with anyone other than her husband, who is sterile, from the first day of her menstrual cycle before the Artificial Insemination procedure until the date that pregnancy has been confirmed by her Obstetrician, Midwife, or Family Physician.
I. The Surrogate agrees to comply with all medical instructions given to her by her physician as well as by her independent obstetrician or midwife.
1) The Surrogate also agrees to follow a prenatal examination schedule as prescribed by her independent obstetrician or midwife, as well as to adhere to and follow all requirements regarding the taking of medicine and vitamins prescribed by her treating obstetrician or midwife. The Surrogate further agrees to submit to any medical tests or procedures deemed necessary or advisable by her obstetrician or midwife. All medical testing, which is not otherwise covered by insurance, will be paid by the Intended Parents.
2) The Surrogate agrees not to participate in dangerous sports or hazardous activities, and promises not to knowingly allow herself to be exposed to radiation, toxic chemicals or communicable diseases.
3) The Surrogate further agrees not to smoke any type of cigarettes, drink alcoholic beverages, or use any illegal drugs, prescription or non-prescription drugs without consent from her obstetrician or midwife.
J. The Surrogate agrees that she will not abort the Child once conceived, except if, in the opinion of her independent obstetrician/midwife or treating physician, such action is necessary to avoid potential risks of physical harm to the Surrogate.
K. In the event the Parties choose to resume the procedure after an abortion, this Agreement shall remain in full force and effect.
L. Selective Termination of Multiple Fetuses: In the event the Artificial Insemination procedure results in three (3) or more fetuses, the Parties to this Agreement may agree to fetal reduction in order to reduce the number of fetuses. Surrogate agrees that she will not reduce against the will of the Intended Parents, except if in the opinion of her independent obstetrician/midwife and/or the treating physician, such action is necessary to avoid physical harm to the Surrogate.
M. Notwithstanding the provisions of Paragraph III, subparagraphs J and L, or anything to the contrary, all Parties understand that a court may determine that a pregnant woman has the absolute right to abort, or not abort, any fetus she is carrying and any promise to the contrary may be unenforceable.
N. Death of the Child prior to the 24th week of pregnancy shall immediately terminate this Agreement, with no further obligations or duties of performance by any of the parties, except as provided for in Paragraphs XIX and XX. The Intended Parents will remain liable for medical costs incurred to the date of such death, and for those medical expenses of the Surrogate directly relating to the pregnancy, for no more than 8 weeks subsequent to any miscarriage, pursuant to Paragraphs XIX and XX, and shall hold the Surrogate harmless from liability for said death unless the death is caused by her own wanton recklessness or other intentional conduct. All monies paid through the date of death of the Child remain the property of the Surrogate.
O. In the event of death of the Child subsequent to the 24th week of pregnancy, the Intended Parents will continue to pay expenses pursuant to Paragraphs XIX and XX for a two (2) month recovery period following the death of said Child. Intended Parents will remain liable for medical costs incurred to the date of such death, pursuant to Paragraph XIX and XX, and shall hold the Surrogate harmless from liability for said death unless the death is caused by her own wanton recklessness or other intentional conduct. All monies paid through the date of death of the Child remain the property of the Surrogate.
P. During the term of this Agreement, the Parties agree to immediately inform the other, in writing, of any material change in their circumstances which may reasonably affect this Agreement. These changes include, but are not limited to, change of address, illness or death of a Party, loss of employment, change of employment situation, changes in insurance coverage, and exposure to communicable illness.
Q. The Parties warrant that all information contained in the various applications and written medical and psychological history questionnaires provided to the treating physician and psychologist/counselor in connection with this Agreement is true and correct to the best of their knowledge. The Parties further warrant that they have not knowingly omitted any material information relating to questions contained in the various applications and medical and psychological history questionnaires. Knowingly providing false or misleading information to the treating physician as specified herein shall constitute an incurable breach of this Agreement to which any and all legal and equitable remedies whether in personal injury or Contract apply.
A. Material Breach of Contract Prior to Artificial Insemination Procedure or Prior to Pregnancy
If at any time prior to Artificial Insemination procedure, or after Artificial Insemination procedure which fails to result in a viable pregnancy, either party material violates any of the provisions contained herein without legal excuse, such violation shall constitute a material breach of this Agreement. As a precondition to the declaration of any violation constituting an alleged material breach of contract herein, the aggrieved party shall, within a reasonable time after discovery, provide written notification to the alleged breaching party of the alleged violation. If the nature of the alleged breach is such that it cannot be reasonable cured, or if it can be cured but the breaching party fails to cure the breach within a reasonable time after notification, this Agreement may be terminated forthwith at the option of the aggrieved party by giving written notice of termination to the breaching party, without further liability on the part of either party, except as specifically set forth below.
If the breaching party is the Surrogate or her Husband, then all monies paid to the Surrogate as compensation prior to termination of this Agreement shall be refunded immediately to the Intended Parents by the Surrogate and her Husband. Any monies other than compensation paid to Surrogate and/or her Husband prior to the termination of this Agreement, e.g. medical cost and expense reimbursements, shall not be refunded.
If the breaching party is the Intended Parents, then Surrogate and her Husband shall be entitled to receive all compensation and other funds due to Surrogate and her Husband under this Agreement through the date of termination of this Agreement.
B. Material Breach of Contract After Confirmation of Pregnancy
Except as set forth in subsection C, below, if at any time after Surrogate becomes pregnant either party materially breaches any of the provisions of this Agreement, this Agreement shall remain in full force and effect and the exclusive means of compensating the aggrieved party shall be calculated in accordance with the provisions below.
As a precondition to the declaration of a material breach, the aggrieved party shall, within a reasonable time after discovery, provide written notification to the alleged breaching party of the alleged violation. If the nature of the alleged breach is such that it can be fully cured within a reasonable time thereafter, then the alleged breaching party shall be provided a reasonable opportunity to cure the breach. If the nature of the breach is such that it cannot be reasonably cured, or if it can be cured but the alleged breaching party fails to cure the alleged breach within a reasonable time after notification, then the alleged breaching party shall be deemed to have materially breached this Agreement; provided, however, if the alleged breaching party is the Surrogate or her Husband, if the alleged breach cannot be reasonable cured but has, in the opinion of Surrogate's relevant doctor, no ascertainable medical consequence to the Child, then the Surrogate shall not be deemed to have materially breached this Agreement.
If the materially breaching party is the Surrogate or her Husband, then all compensation to the Surrogate, except reimbursement for medical costs and expenses, shall be suspended until after the birth of the Child. If after the birth of the Child, the Child is, in the opinion of the Child's pediatrician or other medical doctor(s), healthy and normal then all compensation and reimbursements withheld from the Surrogate shall be released immediately to the Surrogate and there shall be no further financial consequence to the Surrogate. On the other hand, if after the birth of the Child, the Child is, in the opinion of the Child's pediatrician or other medical doctor(s), not healthy and/or is abnormal in a material respect, which, to a medical certainty, is the proximate result of Surrogate's act or omission constituting the alleged material breach, then all compensation and reimbursement withheld from the Surrogate shall be forfeited by the Surrogate, and Surrogate shall pay to the Intended Parents, as liquidated damages, a sum equal to the compensation and benefits paid to the Surrogate under this Agreement. In this regard, the parties hereto agree that damages herein would be extremely difficult and speculative to establish and that the formulation herein is a fair and
reasonable means by which to compensate the Intended Parents in the event of such a material breach of this Agreement by Surrogate and her husband.
If the materially breaching party is the Intended Parents, then Surrogate and her Husband shall be entitled to receive all sums due Surrogate under this Agreement.
C. Material Breach of Contract after Birth of the Child
If after the birth of the Child, the Intended Parents fail to fulfill any remaining financial obligations herein owing to Surrogate, or due and owing to a third party that has a right of collection against the Surrogate and/or her Husband, Surrogate shall submit a written demand to Intended Parents to pay such amounts. Any such demand must be received by Intended parents within six (6) months after the birth of the Child. Any such demand shall include any documentation Surrogate has available to her substantiating the unpaid obligation, such as bills, invoices or demands for payment. If the Intended Parents do not pay the unpaid obligation(s) within thirty (30) days after receiving the demand, then the Intended Parents shall be liable to the Surrogate and/or her Husband for the following sums:
(1) the attorneys' fees and costs paid and/or incurred by the Surrogate and/or her Husband in enforcing collection herein, whether or not legal proceeding is commenced; (2) an amount equal to any sums paid by Surrogate and/or her Husband to a third party creditor to whom by the terms and conditions of this Agreement, the Intended Parents were obligated to pay; (3)the attorneys' fees and costs paid and/or incurred by Surrogate and/or her Husband relative to the resolution of the third party creditor's claim with them; and (4) as liquidated damages, the sum of One Thousand Dollars ($1,000.00) for each violation herein. In this regard, the parties agree that damages herein would be extremely difficult and speculative to establish and that the formulation herein represents a fair and reasonable means by which to compensate the Surrogate and her Husband on account of a material breach of the Agreement by the Intended Parents herein.
THE PARTIES AGREE TO MEDIATE ANY DISPUTE OR CLAIM (EXCEPT AS PROVIDED BELOW) ARISING BETWEEN THEM OUT OF THIS CONTRACT OR ANY RESULTING TRANSACTION THROUGH MEDIATION BEFORE RESORTING TO COURT ACTION. Mediation is a process by which parties attempt to resolve a dispute or claim by submitting it to an impartial, neutral mediator, who is authorized to facilitate the resolution of the dispute, but who is not empowered to impose a settlement on the Parties. Mediation fees shall be divided equally among the Parties involved. IF ANY PARTY COMMENCES A COURT ACTION BASED ON A DISPUTE OR CLAIM TO WHICH THIS PARAGRAPH APPLIES WITHOUT FIRST ATTEMPTING TO RESOLVE THE MATTER THROUGH MEDIATION, THEN IN ADDITION TO ANY OTHER REMEDIES AVAILABLE AT LAW OR EQUITY, IN THE DISCRETION OF THE ARBITRATOR(S) OR JUDGE, THAT PARTY SHALL NOT BE ENTITLED TO RECOVER ATTORNEY'S FEES, EVEN IF THEY WOULD OTHERWISE BE AVAILABLE TO THAT PARTY IN ANY SUCH MEDIATION OR COURT ACTION.
Any matter which is within the jurisdiction of a probate or small claims court, is excluded from the above mediation paragraph. The filing of a court action to enable an injunction, or other provisional remedy, shall not constitute a violation of the Mediation of Disputes.
VI. ATTORNEYS' FEES AND COSTS
In the event litigation is required to interpret or enforce the terms of this Agreement in a court of competent jurisdiction, the prevailing party shall be entitled to reasonable attorney's fees, court costs, and to any other relief to which the court determines said Party is entitled.
VII. INDEPENDENT LEGAL COUNSEL
The Parties hereby acknowledge that they have been advised to retain and consult with independent legal counsel regarding the terms of this Agreement.
By signing and otherwise executing this document, the Parties represent they have consulted with independent counsel regarding the terms, conditions, rights, duties, liabilities and enforceability arising under the conduct contemplated by this Agreement.
VIII. INTENTIONS OF THE PARTIES
In the event of any claim or dispute between the Parties concerning the transactions contemplated by this Agreement, it is the desire of the Parties that their mutual intentions, as reflected in this Agreement, control the disposition of such dispute. The Parties' primary intentions, as mutually expressed in the Agreement, are:
1) Surrogate intends to provide a valuable service of carrying the Intended Parents' Child to term and thereafter deliver to the Intended Parents, as legal, biological and natural parents, a healthy Child to the fullest extent that she is capable of doing so.
2) The Intended Parents intend to utilize Surrogate's services to allow them to have borne to them a Child that is the biological and genetic Child of the Intended Father since they are medically unable to achieve this goal themselves.
3) The Parties intend for the Intended Parents to have the authority to make all decisions affecting the health of the Child, both in utero and after the Child's birth.
4) The Parties do not intend for Surrogate to be exposed to any medical risks over and above those normally associated with pregnancy and childbirth. The Parties intend that, in the event there is a substantial risk of physical harm to Surrogate, she will have the authority to make all decisions affecting her own health.
5) The Parties intend to be fully bound by the terms of this Agreement, notwithstanding any changes that may occur in the law relating to surrogacy which may otherwise affect their rights under this Agreement.
The Surrogate Couple and the Intended Parents warrant and represent that they have not knowingly falsified or omitted any material information relating to medical history, and further agree that any knowing falsification or omission will constitute a material breach of this Agreement.
X. GENDER OF CHILD
The Intended Parents agree to accept sole care and custody of the
Child born pursuant to this Agreement regardless of the gender of said Child.
XI. CONDITIONS OF PERFORMANCE; TERMINATION
The Parties' performance of this Agreement is conditioned upon the following:
A. The Parties' review and approval to their satisfaction of the medical and psychological evaluation results and the Parties' judgment, in their sole and absolute discretion, that there are no physical or mental health issues which warrant termination of this Agreement. This condition shall be waived or deemed satisfied by the Parties unless seven (7) days prior to the Artificial Insemination procedure the objecting Party gives written notice of any objection thereto to the other Party.
B. If the contemplated pregnancy has not occurred within a reasonable time, this Agreement may be terminated by any Party giving notice to all Parties.
XII. INTEGRATED CONTRACT
This Agreement sets forth the entire Agreement between the Parties with regard to the subject matter, all agreements, covenants, representations and warranties express or implied, oral or written, between the Parties are contained herein.
1) No other agreement, covenants, representations, nor warranties, expressed or implied, oral or written, have been made by any Party to the other with respect to the subject matter of the Agreement.
2) All prior and contemporaneous conversations, negotiations, alleged agreements, representation, covenants and warranties, with respect to the subject matter contained herein, are hereby waived and superseded by the written terms of this Agreement.
3) This Agreement is an integrated agreement and contains all of the terms and conditions and duties of performance agreed to between the Parties hereto.
4) This Agreement may be amended or modified only by a written agreement signed by all Parties hereto.
5) The Parties stipulate and agree that the conception, declaration of paternity and birth of any child(ren) born pursuant to this Surrogate Contract shall take place in the State of _____________. The Parties therefore understand and agree that for purposes of the issuance of birth certificate and any and all relevant finalization of parental rights which can be facilitated in the State of ___________, that all rules and regulations in the State of ____________shall apply. The Parties stipulate and agree that for the above-stated purposes of the birth of the child and the finalization of parental rights, that _______________ law shall govern any conflicts, interpretation and/or applications of this Agreement.
For said above-stated purposes, the Parties agree that subject matter and personal jurisdiction shall be vested in the courts of ____________ and venue shall be in a court of competent and appropriate jurisdiction within the State of _____________. The Parties further understand and agree to facilitate any necessary paperwork in order to complete a Stepparent Adoption in the State of ______________ in the event that the Intended Mothers name cannot be placed on the birth certificate prior to the child(ren)’s birth in the State of _____________.
The Parties stipulate and agree that this Surrogate Contract has been drafted in the State of ______________, the Parties have availed themselves of professionals in the State of ____________ and the State of __________, and as such, it is the express intent of the Parties and material term of this Agreement that in the event of a breach of contract or dispute NOT related to the birth of a child(ren) or the finalization of parental rights in the State of ___________, this Agreement shall be governed by and construed and enforced with, the laws of the State _____________. The Parties further stipulate and agree that for the above-stated purposes of a breach of contract or contract dispute, that _____________ law shall govern any conflicts, interpretation and/or applications of this Agreement. For said above-stated purposes, the Parties agree that subject matter and personal jurisdiction shall be vested in the courts of the State of ______________. In the event of a direct conflict of law which would otherwise affect the finalization of parental rights in the State of ____________, the Parties stipulate and agree to jurisdiction and venue in the State of ______________.
XIII. PARTIAL INVALIDITY; CONSTRUCTION
In the event any of the provisions, whether sentences or entire Paragraphs, of this Agreement are deemed to be invalid or unenforceable by a Court of competent jurisdiction, said invalidity shall not affect other provisions or applications of the remainder of this Agreement which can be given effect without the invalid provision or application, and to this end the provisions are severable. If such provision shall be deemed invalid due to its scope or breadth, such provision shall be deemed valid to the extent of the scope or breadth permitted by law.
The Parties agree that all the provisions hereof are to be construed as covenants and agreements as though the words importing such covenants and agreements were used in each separate paragraph hereof. This Agreement is the result of negotiations between Surrogate Couple and the Intended Parents, who each have had the opportunity to obtain legal advice regarding the same. This Agreement shall not be construed for or against the Surrogate Couple or the Intended Parents on the basis of which Party physically served as the scrivener of this Agreement.
XIV. POST DELIVERY CONTACT BY SURROGATE
Contact after the Child’s birth is at the discretion of all Parties.
The Intended Parents shall take custody of, and parental responsibility for, any Child born pursuant to the terms of this Agreement immediately after the Child's birth, regardless of whether the Child suffers from any physical or mental disease or defect, except as previously stated above.
It is the responsibility of each Party to this Agreement to facilitate procedural aspects in obtaining any court order, birth certificates and/or other documentation which may be requested by the Intended Parents and/or their attorney. It is expressly agreed that the Intended Parents are to select the Child's name and that any birth certificate issued through the medical facility in which the Child is born shall reflect the name chosen by the Intended Parents.
XV. RIGHT OF PRIVACY
If any adoption is required by law, the Parties agree that upon the completion of an adoption of the Child conceived pursuant to this Agreement, to permanently close the adoption file pertaining to said Child, except as otherwise provided by Law.
The Parties acknowledge that to properly effectuate the terms of this Agreement, the Parties must disclose information of a personal and confidential nature to each other. The Parties mutually promise that this information will be held in the utmost confidence and privacy. It is agreed between the Parties that the best interests of the Child born pursuant to this Agreement is best served by strict protection of each others' right to privacy.
The Parties agree that they will not provide, nor allow to be provided, any information to the public, news media or any other individual regarding their involvement in traditional surrogacy, the involvement of any other Party in traditional surrogacy or the identity of any Party hereto, without the express written permission and consent of the Parties; provided, however, that if at a point in time more than five (5) years after the date of execution of its Agreement, any Party is unable through reasonably diligent efforts to contact another Party, then information other than the identity of such other unreachable Party may be communicated without such written consent. The Parties understand that confidentiality as described herein does not contemplate speaking with friends, relatives or other such persons about their own involvement in the gestational surrogacy arrangement. Such conversations are permitted, and do not constitute a breach of confidentiality, provided that the identity of, or other specific information about, the other Party is not disclosed.
In order to maintain the confidentiality contemplated herein and in the event that litigation rises out of the contract, the Parties to the Agreement, their legal counsel, their heirs, assigns and representatives agree to make all reasonable efforts to respect and maintain such confidentiality, and the right of privacy of all Parties as is intended by this Agreement, both as to the general public and to each other. Said reasonable efforts shall include, but not be limited to:
1) requesting that court records be sealed; and
2) requesting the court to impose gag orders; and
3) requesting that the court, in its procedures and in the conduct of its hearings in this matter, refrain from releasing the identity of the Parties to the public or to the news media. The Parties of this Contract hereby consent to the above described reasonable efforts and procedures in the event that any such request is submitted by the other Party.
XVI. DEATH OF THE INTENDED PARENTS
A. The death of the Intended Father any time prior to the birth and/or any adoption required by law of any Child conceived pursuant to the terms of this Agreement shall not alter any terms of the Agreement nor shall it prejudice the Intended Mother's right to adopt the Child if adoption is required by law, nor shall it alter her custodial rights and responsibilities with regard to the Child.
B. The death of the Intended Mother any time prior to the birth and/or any adoption required by law of any Child conceived pursuant to the terms of this Agreement shall not alter any terms of the Agreement nor shall it prejudice the Intended Father's right to adopt the Child if adoption is required by law, nor shall it alter his custodial rights and responsibilities with regard to the Child.
C. Prior to insemination, the Intended Parents shall make guardianship provisions for the Child contemplated by this Agreement by amending their existing Wills, or by the execution of Wills containing such provisions if they have no existing Wills. In the event that the Intended Parents predecease the birth of the Child, the terms and conditions of this Agreement shall remain in full force and effect, and the Child shall be delivered into the sole care and custody of the guardian nominated in the Wills of the Intended Parents. By this Agreement, the Intended Parents hereby designate __________________ as the guardian of the Child.
D. In the event of the death of either the Intended Father or the Intended Mother, the Child shall be placed into the custody of the Survivor, if any. The Surrogate Couple and the Survivor hereby agree to perform all remaining terms and conditions of this Agreement.
E. Any Child conceived pursuant to the terms of this Agreement shall have all testamentary and inheritance rights from the Intended Father and Intended Mother as a natural Child, and shall have no testamentary or inheritance rights from the Surrogate or Surrogate's Husband. The Intended Father and Intended Mother shall have testamentary and inheritance rights from the child as parents.
XVII. TRUST ACCOUNT
The Parties to this Agreement concur that a trust account is not required. A trust account may be set up by mutual agreement in the event that both parties deem this pertinent.
XVIII. LIFE INSURANCE
Prior to Artificial Insemination procedure, the Intended Parents shall pay for the cost of a term life insurance policy of Two Hundred Fifty Thousand Dollars ($250,000.00) on the life of the Surrogate. The term of the policy shall cover, at minimum, the time period from the first Artificial Insemination procedure through the birth of the Child and for three (3) months after the birth of the Child. The named beneficiary under this policy is the Surrogate’s Husband and/or the Surrogate Couple’s children. The Surrogate shall fully comply and cooperate with any and all requests of any prospective life insurance policy carrier in obtaining a life insurance policy.
The Surrogate's failure to so cooperate and comply with said insurance carrier constitutes a legal excuse for the Intended Parents' failure to obtain a policy as specified above.
XIX. HEALTH INSURANCE AND MEDICAL EXPENSES
Intended Parents shall pay all of Surrogate's medical expenses that are related to the Artificial Insemination procedure and/or pregnancy and that are not covered by insurance.
The Surrogate will present all medical, hospital, prescription and other expenses to said insurance company for payment within a reasonable time of receipt of same by her.
The Surrogate shall immediately send any correspondence or other written memoranda that she receives from the insurance company directly to the Intended Parents, including but not limited to, cancellation notices and changes in coverage (amendments).
The Surrogate understands and believes to the best of her knowledge that she has medical coverage, which includes complete pregnancy care and delivery, and provisions for payment of C-Section delivery if required. The Surrogate makes no warranty that her medical insurance will pay any or all costs associated with the pregnancy contemplated by this Agreement, and the
Intended Parents agree to make all payments in the event the Surrogate's medical insurance does not pay her medical expenses unless non-payment is the result of Surrogate's negligence, such as the failure to submit expenses to the insurance company for reimbursement.
Intended Parents' obligation to pay for Surrogate's unreimbursed medical expenses and Surrogate's health insurance (if applicable) shall terminate twelve (12) months after the birth of any Child pursuant to this Agreement, twelve (12) months after miscarriage or abortion, or when this Agreement is deemed terminated, whichever occurs first. However, if Surrogate develops medical complications after birth, miscarriage or abortion and if Intended Parents are advised in writing of the complications within ten (10) weeks after the birth, miscarriage or abortion, Intended Parents' obligation hereunder shall continue until twelve (12) months after the birth, miscarriage or abortion, or until Surrogate's recovery from the medical complications is complete in the opinion of the Surrogate's obstetrician, whichever occurs first.
The foregoing paragraph shall not apply to an abortion in violation of this Agreement, in which case the provisions of Paragraph III(J) shall apply. In no event shall the Intended Parents be responsible for Surrogate's medical expenses or for health insurance for Surrogate more than twelve (12) months after the birth, miscarriage or abortion.
XX. CONSIDERATION FOR SERVICES
In consideration of all services to be rendered, time to be spent, pain and suffering, personal discomfort, child support, living expenses and other personal inconveniences and costs to be incurred by Surrogate in performance of all the terms and obligations set forth in this Agreement, Intended Parents shall pay or cause to be paid the amounts specified below. Payments made to the Surrogate shall be made by the Intended Parents, and said payments are not to be contingent upon surrender of the Child to the Intended Parents, nor upon the Surrogate's waiver of rights or responsibilities pursuant to this Agreement. These payments will be made in the amount and at such times to such persons or entities as is indicated below:
A. The costs and fees of medical service providers for initial medical testing to determine Surrogate's suitability as a traditional surrogate.
B. The costs and fees of medical service providers for the Artificial
Insemination procedure, and all related pre-insemination medical expenses.
C. All medical, pharmacy, hospital, laboratory and therapy expenses incurred by Surrogate during, or resulting from complications arising from Artificial Insemination procedure, that are not payable under Surrogate's health insurance policy.
D. All medical, pharmacy, hospital and laboratory expenses associated with any testing done at the request of the Surrogate's obstetrician/midwife that are not payable under the Surrogate's health insurance.
E. The total sum of Eighteen Thousand Dollars ($18,000.00), subject to the provisions of this subparagraph, subparagraphs Q and R below, and paragraphs III and IV hereof, payable to Surrogate as full consideration for child support, living expenses, personal discomfort to Surrogate in connection with this Agreement. Surrogate will receive this sum in payments of One Thousand Five Hundred Dollars ($1,800.00) per month. The first of these payments will be made within five (5) days following confirmation of pregnancy via blood or urine test performed in a medical setting by a doctor or his staff, and will continue on the first of every consecutive month thereafter, so long as Surrogate is pregnant, until a total of Eighteen Thousand Dollars ($18,000.00) has been awarded to Surrogate.
F. All costs and fees of medical service providers for paternity testing pursuant to Paragraph III, subparagraph B, of this Agreement, if requested by the Intended Parents.
G. 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 and her Partner represent that they have retained an attorney of their choice for purposes of reviewing and negotiating this Agreement, and that such attorney has fully advised them as to the terms and effects of this Agreement. A court may award attorneys' fees to any prevailing Party in an action related to this Surrogate Contract.
H. All court costs, filing fees and copying fees for a judicial declaration of paternity and maternity.
I. Surrogate's attorneys' fees for legal representation relative to obtaining a Judgment of Maternity and/or Paternity, and/or adoption, if required.
K. Expenses incurred by Surrogate for travel, lost wages, babysitting, telephone calls and miscellaneous expenses will be paid by the Intended Parents in a timely manner not to exceed one month from date of submission. Surrogate acknowledges that it is her responsibility to submit an itemized statement of expenses to the Intended Parents for reimbursement. The Surrogate can subtract expenses from an advance for various agreed upon expenses.
L. The actual cost or fee charged by a mental health care professional for psychological testing and/or counseling for Surrogate prior to the Artificial Insemination procedure, during pregnancy and for a three (3) month period after delivery, as advised by such mental health care professional, whether through support group meetings or individual counseling.
M. In the event the Surrogate's treating physician or obstetrician orders bed rest or other restrictions for Surrogate in connection with the pregnancy or birth of the Child as contemplated in this Agreement, the Intended Parents shall pay the Surrogate for additional required services including, and limited to, net lost wages, less any paid disability benefits, and reasonable child care and housekeeping expenses, 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 Cesarean Section.
N. Should the Surrogate, due to unforeseeable circumstances, such as loss of employment, risk losing her medical insurance coverage, she shall immediately notify the Intended Parents in order that provisions can be made to address the options of converting the policy to COBRA coverage so that the Surrogate will not suffer loss of medical coverage. Should the Surrogate have to convert her policy, the cost of said policy shall be borne by the Intended Parents.
O. Death of the Child prior to the 24th week of pregnancy shall terminate this Agreement and there shall be no further duties of performance under this Contract of the Intended Parents except as to those medical costs and expenses related to pregnancy, that the Intended Parents are responsible for pursuant to Paragraph XIX 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.
P. If death of the Child occurs after the 24th week of pregnancy, the Intended Parents will continue to pay the aforementioned expenses from subparagraphs D, E, K, L, M and N of this Agreement for a two(2) month recovery period.
Q. In the event Surrogate undergoes a C-Section delivery she will receive payment of One Thousand Dollars ($1000.00) for the procedure.
R. Surrogate shall receive Seven Hundred Dollars ($700.00) upon reaching twelve (12) weeks gestation for maternity clothing allowance.
S. Intended Parents shall be responsible for the health club membership for Surrogate for a maximun of Sixty-Five Dollars ($65.00) per month upon execution of this Agreement and continuing one (1) month after the birth of the Child.
T. The Surrogate’s Husband shall be entitled to reimbursement for lost wages by the Intended Parents for a maximun of five (5) days during the course of this Agreement. In the event that the Surrogate’s Husband is able to take additional time off for purposes of the delivery of the Child, the Intended Parents agree to reimburse Surrogate’s Husband for for a maximum of five (5) additional days for a total of ten (10) days lost wages in an amount not to exceed the total sum of ___________.
In recognition of the Intended Parents' obligation as set forth under ___________ law, to support this Child from the time of pregnancy is diagnosed, the Intended Parents agree to pay or cause to be paid, such sums as are indicated in this Agreement. The Surrogate shall be entitled to her payment pursuant to this Agreement notwithstanding the fact that the Child is diagnosed to have a terminal condition or is stillborn. If the Child is still born, then Surrogate shall receive her payments pursuant to Paragraph XX, subparagraphs O and P of this Agreement.
The Parties agree that the consideration paid pursuant to this Agreement constitutes reasonable monetary compensation for all foreseen and unforeseen losses, costs, expenses incurred and services rendered by Surrogate in carrying out her obligations thereunder, not payment for the Child, nor payment for Surrogate's consent to surrender the Child to Intended Parents. The Parties represent and acknowledge to each other that Surrogate is not an employee to any Party to this Agreement.
XXI. TAXATION AND IMMIGRATION
This Agreement does not instruct the Parties on immigration and taxation. It is the responsibility of the Party receiving payments or any other benefits pursuant to this Agreement to seek independent legal advice regarding the tax consequence of said payments, benefits and/or immigration laws.
This Agreement may be executed in two (2) or more counterparts, each of which shall be an original, but all of which shall constitute one and the same instrument.
Any notice permitted, required or desired to be given pursuant this Agreement shall be deemed to have been given two (2) business days after sending by Federal Express or other comparable overnight express courier service (with proof of receipt available), or on the same business day if personally delivered, addressed to the Parties as follows:
If to Intended Parents:
With a copy to:
If to Surrogate Couple:
With a copy to:
We, the undersigned, acknowledge that we have read this document in full, we acknowledge that we understand and accept the content of each provision and its legal effect prior to entering into this Agreement. Each Party acknowledges that it fully understands the Agreement and is signing the same freely and voluntarily and that no Party has any reason to believe that the other Parties did not freely and voluntarily execute this Agreement.
The Parties stipulate and agree that this Surrogate Contract has been drafted in the State of _________________, the Parties have availed themselves of professionals in the State of _______________ and the State of _____________, and as such, it is the express intent of the Parties and material term of this Agreement that in the event of a breach of contract or dispute NOT related to the birth of a child(ren) or the finalization of parental rights in the State of _____________, this Agreement shall be governed by and construed and enforced with, the laws of the State of ________________. The Parties further stipulate and agree that for the above-stated purposes of a breach of contract or contract dispute, that ______________ law shall govern any conflicts, interpretation and/or applications of this Agreement. For said above-stated purposes, the Parties agree that subject matter and personal jurisdiction shall be vested in the courts of _______________. In the event of a direct conflict of law which would otherwise affect the finalization of parental rights in the State of ______________, the Parties stipulate and agree to jurisdiction and venue in the State of _______________.
WE EACH SEPARATELY DECLARE UNDER PENALTY OF PERJURY UNDER THE LAWS OF THE STATE OF __________________ THAT THE FOREGOING, AND ANY OTHER INFORMATION PERSONALLY KNOWN TO THE PARTIES, AND PROVIDED TO EACH OTHER IS COMPLETE, TRUE AND CORRECT TO THE BEST OF OUR KNOWLEDGE, AND THAT WE AGREE TO ALL TERMS HEREIN.
IN WITNESS WHEREOF, the Parties have executed this Traditional Surrogate Contract as of the date indicated above.
(Name) "Intended Father" Date
(Name) "Intended Mother" Date
(Name) "Surrogate” Date
(Name)"Surrogate's Husband" Date
הבהרה והגבלת אחריות: אתר חוזים נוסד כשירות לציבור בכדי להגביר את המודעות לחשיבות של חתימה על הסכם מסודר. כל המסמכים באתר מובאים כדוגמאות כלליות להתרשמות בלבד, ולא לשימוש, הם אינם מהווים משום יעוץ או הצעה להשתמש במסמך כלשהו והם אינם יכולים לשמש עילה לתביעה כלשהי. חוקים, דינים וטפסים משתנים כל העת. על כן, המסמכים באתר עלולים להיות לא מדויקים ו/או לא עדכניים. יש להיוועץ בעורך דין המתמחה בתחום הרלבנטי לפני חתימה על כל הסכם. אין להעתיק כל חלק מהאתר ו/או מהלקטים המובאים בו.