A well-crafted surrogacy contract is more than just a legal requirement; it is the foundation of your partnership. In Kansas, navigating the specifics of these agreements is easier when you have an experienced legal team to guide you.
In this guide, we will explore what should be included in a surrogacy contract, how enforceability works in the Sunflower State, and the vital role that surrogacy agencies and attorneys play in your surrogacy journey.
If you’re ready to begin your surrogacy journey or have questions about your surrogacy contract, contact a specialist today and learn how American Surrogacy supports you.
What Should Be Included in a Surrogacy Contract?
Every gestational carrier agreement is tailored to your specific situation, but a strong contract must cover several key areas to protect both intended parents and surrogates:
- Compensation and Expenses: This includes the surrogate’s base pay, monthly allowance, and reimbursement for pregnancy-related costs.
- Medical Rights and Decision-Making: Who chooses the OB/GYN? How are decisions regarding multiples or medical emergencies handled?
- Lifestyle Restrictions: Agreements on travel, diet, and exercise to ensure a healthy pregnancy.
- Labor and Delivery Plans: Details on who will be in the delivery room and how the hospital stay will be managed.
- Termination and Selective Reduction: Clauses addressing highly sensitive medical situations.
- Legal Parentage: The steps required to ensure the intended parents are recognized as the legal parents from birth.
Legal Clearance in Kansas: The Final Step Before Transfer
Legal clearance is a required step before medical procedures begin. After the contract is signed, attorneys issue clearance letters to the fertility clinic. This process typically takes two to four weeks and involves the following steps:
The intended parents’ attorney, who must be familiar with Kansas ART (Assisted Reproductive Technology) law, drafts the initial contract based on the terms agreed on. The surrogate receives the draft and reviews it with her own independent surrogacy attorney to ensure her rights and interests are fully protected. The attorneys for both sides communicate to resolve any concerns or adjust specific clauses until everyone is in complete agreement. Once all terms are finalized, both the intended parents and the surrogate (and her spouse, if applicable) sign the document in the presence of a notary. The attorneys notify the fertility clinic that the contract is complete, allowing the clinic to schedule the embryo transfer. The clinic will not proceed with the embryo transfer until it receives these legal documents, ensuring that parental rights are secured and that the surrogate's health and financial protections are legally binding before the pregnancy begins.Legal Clearance in Kansas
Can Surrogacy Contracts Be Enforced in Kansas?
Kansas is generally considered a surrogacy-friendly state and surrogacy contracts can be enforceable in Kansas as long as they meet certain legal standards and are drafted properly. Although it does not have specific statutes regulating surrogacy, the legal process is well-established through case law and the Kansas Parentage Act.
In practice, Kansas courts routinely recognize these arrangements, providing a secure environment for both surrogates and intended parents.
Pre-Birth Orders in Kansas
A key part of this process is obtaining a pre-birth order, which establishes the intended parents as the legal parents before the child is born. While most terms are upheld, specific provisions must align with Kansas public policy.
For example, a contract cannot force a surrogate to waive fundamental rights in a way that the court deems unfair or extremely one-sided.
What Happens if a Surrogacy Contract is Breached?
If a party fails to meet their obligations, it is a breach of contract. For intended parents and surrogates, the outcomes for violations are designed to protect the integrity of the arrangement:
- Financial penalties: These may apply if a party violates specific terms, such as an intended parent failing to fund the escrow account on time or a surrogate sharing private medical information without authorization.
- Reimbursement of expenses: If a breach occurs, the responsible party may be required to repay costs. For example, if a surrogate misses work for a scheduled transfer that the intended parents cancel at the last minute, the parents may be required to reimburse her for those lost wages.
- Specific performance: This is most often used to secure parental rights. A court can order a party to sign necessary documents, ensuring the intended parents are correctly named on the birth certificate as originally agreed.
Most contracts include a clause to solve disagreements regarding the agreement without going to court. If there’s a problem, both parties first try to talk it out and reach an agreement together. If the intended parents and surrogate can’t come to an agreement, they can ask their respective attorneys to negotiate.
If the attorneys can’t handle the issue, everyone agrees to meet with a neutral third party who helps find a solution that works for everyone. Going to court is only used as a last resort if all these other steps fail.
Fair Surrogacy Compensation in Kansas and Payment Structure
Providing fair compensation is essential for a respectful partnership. In Kansas, compensation is negotiated during the contract phase and typically follows a strict payment schedule.
To protect the financial interests of both parties, the intended parents deposit funds into a bonded, third-party escrow account before medical treatments begin. This ensures the surrogate is paid on time and provides the intended parents with an accounting of all funds.
You can learn more about what is included in your surrogate compensation package and escrow funds by speaking with a surrogacy specialist.
Want to Learn More About Surrogate Compensation in Kansas?
Medical Decisions and Control During Pregnancy
The contract establishes expectations for the health of the pregnancy while respecting the surrogate’s autonomy. By putting these decisions in writing, the surrogate’s rights are protected while the intended parents have the security they need to move forward.
In most cases, your agreement will address the following medical and logistical details:
- Medical records: Intended parents have rights to access records regarding the pregnancy and the baby’s health.
- Physician selection: The contract specifies how an OB/GYN is selected, typically prioritizing a doctor near the surrogate.
- Clinic protocols: The surrogate agrees to follow the fertility clinic’s medical protocols.
- Travel and activity: Agreements may include restrictions on traveling to high-risk health areas or engaging in high-impact activities.
Having this shared agreement in place means everyone can focus on a healthy pregnancy without worrying last-minute confusion or disagreements at the hospital.
Termination and Selective Reduction Clauses
The most difficult and uncomfortable part of the contract involves termination for medical reasons and selective reduction agreements. These clauses address what happens if a fetus has a terminal condition or if a pregnancy with multiples poses a risk to the surrogate’s health.
Termination is deeply personal and state-sensitive, it’s essential to have an experienced attorney ensures these terms reflect the intentions of both parties and remain compliant with current state laws.
The current gestational limit for abortion in Kansas is 22 weeks LMP (last menstrual period). This limit has been in place since 2019, when the Kansas Supreme Court recognized a right to abortion under the state constitution.
Lifestyle Clauses: Travel, Diet, and Daily Life
Agreements often include provisions addressing caffeine consumption, alcohol and tobacco use, and exposure to environmental toxins, with such restrictions mutually agreed upon to safeguard the health of the pregnancy.
- Travel Restrictions: Surrogates may be restricted from traveling out of state late in the third trimester to ensure she stays close to the delivery hospital.
- Diet and Exercise: Contracts may outline general diet restrictions (like avoiding raw fish) and exercise restrictions to ensure the surrogate is not engaging in high-impact activities that could jeopardize the pregnancy.
Delivery Plans and Postpartum Recovery Expectations
The labor and delivery section of your contract is where all your hard work and anticipation finally come together. It is the moment you have both been waiting for, and your contract ensures this experience is as exciting and stress-free as possible.
By establishing clear expectations for things like delivery room presence and postpartum support, you can focus entirely on welcoming the newest member of the family while respecting everyone’s comfort and needs. The contract establishes rights and expectations for the following:
- Delivery Room Presence: The parties agree on who will be in the room during labor and birth. This includes honoring the surrogate’s preferences for her support person while welcoming the intended parents to share in the moment.
- Postpartum Hospital Stay: The agreement details how the hospital stay will be handled, including separate rooms for the surrogate and the baby, and how the parents will care for the newborn.
- Recovery Time Compensation: The contract ensures the surrogate is supported financially during her postpartum recovery, including lost wages and childcare assistance if needed.
- Pumping Agreements: If the surrogate agrees to provide breast milk after birth, a pumping agreement outlines the compensation and logistics for shipping the milk to the intended parents.
Insurance Requirements for Surrogacy Journeys in Kansas
In Kansas, ensuring that everyone is protected financially means having the right insurance policies in place. While Kansas law doesn't explicitly mandate specific surrogacy insurance, your contract must follow established legal best practices to be enforceable.
Health Insurance
Kansas law requires most large group health plans to offer some infertility diagnosis coverage, but it’s critical to verify if the surrogate’s specific plan is "surrogate-friendly." A professional insurance review is required to ensure there is no "surrogacy exclusion" clause.
If the current plan excludes these pregnancies, intended parents must purchase a new policy or a "wrap" plan to cover prenatal care and delivery.
Life Insurance
This policy is a non-negotiable standard in Kansas surrogacy agreements. It provides financial security for the surrogate’s family in the rare event of a tragedy. The contract will specify the benefit amount, and the surrogate has the absolute right to choose her own beneficiaries.
Disability Insurance
To protect the surrogate's income, disability insurance covers lost wages if a Kansas physician orders bed rest or an extended recovery. This ensures the surrogate can focus on her health without worrying about her household finances.
Agency vs. Independent Surrogacy: Legal and Emotional Considerations
When comparing an agency vs. independent journey, the differences involve both legal security and emotional well-being. Surrogacy is a deeply personal and often complex experience that requires a strong support system for everyone involved.
We provide access to experienced counselors who help you navigate the "ups and downs" of the journey. If a misunderstanding arises about boundaries or communication, your agency specialist acts as a neutral third party to resolve it before it becomes a legal issue. All parties are fully screened medically, psychologically, and legally before matching. This ensures you are partnering with someone who is truly ready for the commitment, reducing the emotional stress of uncertainty. We handle the complex details of escrow and insurance coordination. By taking the stress of money and scheduling off your plate, we allow you to focus on building a positive, trusting relationship centered on the pregnancy and the future of the child. We ensure both sides have access to the best legal minds in the state to secure your rights under the Kansas Parentage Act, giving you the confidence that your legal foundation is rock-solid.
Ensure Your Kansas Surrogacy Contract Covers Every Detail
Your surrogacy journey is too important to leave to chance. A well-crafted contract provides the peace of mind you need to focus on the joy of the pregnancy. Whether you are an intended parent or a prospective surrogate, having an expert team ensures your rights are protected every step of the way.
If you want to learn more about your surrogacy contract in Kansas, you can speak with a specialist today and get personalized answers for your situation.