The agency agreement is the first document you'll sign in the journey – and ironically, the one read least carefully. Excitement is at its peak, the representative is lovely, and the feeling is "come on, it's a standard contract". But this contract defines exactly what you get for tens of thousands of dollars in agency fees – and what happens when things don't go to plan. Here are the ten clauses I recommend reading three times, and questioning until everything is clear.
One: what exactly the agency fee includes. Which services are in, which are out and billed separately. Two: the rematch policy – if the match falls apart before a pregnancy, for any reason, do you rematch without paying agency fees again? How many times? Three: what happens when replacing a surrogate mid-way – who bears the cost of screening already performed. Four: cancellation and exit terms – how much is refunded at each stage if you choose or are forced to stop, and how much is "burned". Five: timelines and commitments – what the agency commits to time-wise (if anything), and what happens when it doesn't deliver.
Six: separation of funds – where every dollar sits: what's with the agency, what's in escrow (see my separate post), and who approves fund releases. Seven: liability and professional insurance – what happens if the agency erred, was negligent, or simply shut down mid-journey. An unpleasant question, an essential answer. Eight: dispute resolution – arbitration or court, in which state, under which law. Nine: confidentiality and privacy – what the agency may do with your information and story (including marketing). Ten: communication and a fixed point of contact – do you have a defined case manager, and what happens when they change.
Alongside the clauses, two rules: every verbal promise – into the contract. "We always do free rematches" is lovely; "clause 7.3" is binding. Second rule: a contract is not sacred text. Agencies are used to questions and amendment requests, and an agency that refuses any change or takes offense at questions is telling you something about what the next two years will look like.
My tip: have the contract reviewed by an attorney who accompanies surrogacy journeys – not "the family lawyer". The cost is modest relative to the journey, and they'll spot within ten minutes the clauses a specific agency "forgot" to highlight. It's the best-value deal you'll make in the entire process.
