This is one of the most frequent questions I answer during my meetings with the Intended Parents. Though the answer seems quite simple, the consequence of missing the right time to sign a surrogacy contract is quite a serious problem to the whole surrogacy program. Indian Surrogacy Law Centre recommends the right time to enter into a surrogacy contract with the surrogate is when the following four aspects have been finalized,
(a) the choice over the surrogate mother
(b) the choice over the Clinic
(c) the financial element, with regard to the compensation to the surrogate
(d) The dates for commencing the procedures at the hospital has been fixed.
Once all the above factors have been determined, it is the right time for entering into a surrogacy agreement. The surrogate should have a clear understanding of the agreement and there should be also some evidence for the same.
Importance of the time factor:
The date of signing of the surrogacy contract plays an important role is assessing the mind of the parties to the contract. It is important that the surrogate enters into the contract before the taking up of the medical procedures. The reason is that the medical procedures itself is a result of the contract entered between the parties, and this order of events cannot be rearranged. There have been cases where clinics do not stress on the need for signing of an appropriate agreement with the surrogate before carrying out the procedures. However, this practice does not serve any purpose.
More importantly, the effect of not signing of a surrogacy agreement at an appropriate time has an adverse inference over the agreement. In such cases, the obvious question the Court poses to a person who relies on the agreement is as to why the agreement was not entered with the surrogate before she had taken up the medical procedures.
Therefore it is important to have the surrogacy agreement entered by the parties before proceeding with the medical procedures.