5 Documents to Sign Before the First Embryo Transfer

A transfer date is the point at which most of these arrangements stop being negotiable. Before it, every document is a draft and every answer can still be refused. After it, you are performing under terms you accepted while you were excited, and the money has started moving.

The list below is not a recommendation about which provider to use. It is the set of documents that professional guidance and the published position of the obstetric federations treat as the minimum, together with what each one is for.

Five documents that should exist before a transfer

1. A written agreement that carries the whole financial arrangement. The guidance is explicit that a surrogacy arrangement should be formalised by a written agreement, and that the financial terms should state specific amounts, the events that trigger each payment, and the dates they fall due. A fee described as “approximately” and a payment described as “when appropriate” are both gaps in the document rather than looseness of language.
2. A fee schedule with a refund table attached. This is a separate document from the agreement in practice, and it should say what happens to each line when a cycle is abandoned, when a candidate carrier is replaced, and when an arrangement ends without a child.
3. An escrow arrangement, funded before the first transfer. The professional standard recorded in the guidance is that the account is typically funded prior to the first embryo transfer, which puts this deadline on the calendar long before a birth. The same guidance notes that parties expect the holder not to take sides, so name the holder and ask who appoints them.
4. Separate legal representation for each side. Independent counsel for the intended parents and for the carrier is recommended and in some places mandated. If one lawyer is advising both, that is a fact about your agreement rather than a detail of someone else’s paperwork.
5. Counselling and screening records for everyone. FIGO’s position statement states that both the surrogate and the intended parents must receive independent and comprehensive counselling, and that psychological screening and ongoing counselling should be mandatory. Ask for the name of the counsellor, who referred you, and whether that person also works for the agency.

Why a signature is not the same as enforceability

The fifth item and the fourth item exist for a reason that is uncomfortable to state plainly: in some places the document you signed does not bind anyone.

Published analysis of United States practice records that in some jurisdictions gestational carrier contracts are unenforceable or void. In the United Kingdom the regulator says you can make an agreement beforehand, and that it will not be legally binding.

Three consequences follow, and they are the reason this list is worth working through before money moves.

• A document that cannot be enforced still functions as evidence. What was agreed, what was disclosed, and what was paid will be reconstructed from the paperwork, so the quality of the paperwork protects you even where the contract does not.
• The parentage question is decided by a court applying its own test, not by the agreement. The article on the six-month limit gives the rule with its source: the woman who gives birth is the legal mother, and where she has a spouse or civil partner that person is the second legal parent, until a court order displaces both.
• Payment terms are not neutral. Where the lawful ceiling is a carrier’s reasonable expenses and anything above it waits on a judge, an aggressive compensation structure is not merely expensive. It can sit inside the application that decides whether you become the child’s legal parents.

What the professional bodies treat as mandatory

The obstetric federations’ position is the least marketing-shaped material on this subject, and the parts of it that matter when you are preparing are these.

• Counselling must be independent, which means not provided by the party with an interest in the arrangement continuing.
• Screening is a process rather than a single questionnaire, and it is expected to continue through the pregnancy and after the birth.
• Both sides receive it. A plan in which only the carrier has been counselled is a plan that has not met the published standard.

None of that is a medical opinion about your situation. It is the standard a professional body has published, and it is a usable benchmark when somebody tells you their program includes support.

Five questions to put to each document

Ask them of the party who will be named in the paperwork, in writing, and keep each answer beside its question in the question checklist you download.

1. Which single document contains the complete financial agreement, and can I have it before I sign anything else?
2. For every amount in it: what event triggers the payment, what date does it fall due, and what refunds if the event never happens?
3. Who holds the escrow, who appointed them, and what does their contract say about whose instruction they act on?
4. Who is the carrier’s lawyer, who pays them, and how far in advance of my signature do they see the draft?
5. Which requirement in this list does your jurisdiction not enforce, and what do you do about that instead of relying on the document?

Question five is the one a good lawyer will answer without hesitation and a bad one will answer with reassurance. It is also the question that tells you whether the escrow stages you are about to fund have any consequence if the arrangement stops.

What being ready looks like

Ready is not a feeling about the clinic or a level of comfort with an agency. It is a folder: the agreement with its amounts, triggers and dates; the fee schedule with the refund table; the escrow named and funded; two lawyers identified; the counselling record with names and dates; and a written answer to the enforceability question in the jurisdiction you are actually using.

If any of those five documents is missing, the transfer can still proceed, and that is exactly why the list is worth holding. The calendar belongs to the clinic. The terms belong to you only for as long as nothing has been signed.

The paperwork that follows a birth is a different chain with different decision-makers, and it is set out in getting a birth certificate accepted abroad.

What is reported above is published guidance and the positions taken by professional bodies. It is not legal advice, it is not a template, and no document described here has been reviewed for your situation.