The IP(s) Baby, Not Your Baby!
I know it seems obvious at first glance. If you are thinking of being a Surrogate, then clearly you are intending to get pregnant with someone else’s child, and not your own. After all, getting pregnant on your own would make this very hard to do.
When you sign up with a surrogacy agency, the agency’s goal should be getting you matched as quickly as possible so hopefully you can get pregnant for your Intended Parent(s). It is in everyone’s best interests to make sure your pregnancy is with the Intended Parents’ baby, and not with your own baby. Keep in mind, adjusting your sexual activity practices, especially for what could be a long period of time, can sometimes be more challenging than you think.
Contract Terms and Time Delays
The agency contract will likely contain a provision where you promise not to get pregnant outside of the surrogacy relationship. This means agreeing to avoid any unprotected sex that could get you pregnant while you are working with the agency to get matched. Your surrogacy contract with the Intended Parent(s) will also have a similar provision where you promise not to get pregnant on your own for the entire time you are trying to get pregnant with their child. In fact, most surrogacy contracts define getting pregnant on your own, through consensual activities, a material breach of the agreement. That would allow the Intended Parents to pursue legal remedies against you for breaking your contract promise, which could be very significant in monetary terms.
If you happen to get pregnant with your own baby after signing up with an agency, but prior to being matched, then you would no longer be eligible to be matched for as long as you are pregnant and for a period of time afterwards. This is not a good outcome for you or for the surrogacy agency. These pregnancy provisions, in both the agency retainer and the surrogacy contract, are items that you want to make sure you and your partner (if any) are aware of, and understand the consequences of, so you don’t break these promises.
Agency Delays
It is important to keep in mind that when you sign up with an agency and agree no to get pregnant on your own, you will not know how long it will be until you are matched and undergo a successful embryo transfer.
The screening process the agency uses to get you cleared before they submit your profiles to prospective Intended Parents can take some time. In addition, depending on the size of the agency and the number of Intended Parents they have waiting for a match, there could be a significant time delay from the point your are cleared by the agency up until the point where you are selected by Intended Parents and the match is finalized. Even after the match has been made, you still need to go through an additional and substantial screening process to receive medical clearance by the Intended Parents’ IVF physician; this physician has the ultimate say on whether or not the match is allowed to proceed. During this entire period of time, your commitment to not get pregnant on your own is still binding.
Legal Delays
Once you are medically cleared by the IVF physician, you will still need to complete the legal process before scheduling your first embryo transfer. Hopefully, at this stage in the game, there are not many contract terms that will be unexpected. But, you can never be too sure once you get lawyers involved in the process. 🙂 The contract phase alone can take anywhere from a few weeks on the short end and potentially a few months on the longer end. Most clinics will not even consider scheduling an embryo transfer until after the legal contracts are signed and the attorneys let the clinic know the legal process is complete.
Clinical Delays
Now you are constrained by the IVF clinic’s calendar as to when you can actually undergo your first embryo transfer. Every clinic is a little different, and depending on their current appointment calendar, it may be several weeks before you can get your transfer scheduled. 
Should everything go according to plan and without much delay, it will likely be several months from the moment you sign the agency contract agreeing not to get pregnant on your own before you even have the first opportunity to get pregnant for someone else. This doesn’t even take into consideration what might happen if a match falls apart, or if there are a number of unsuccessful embryo transfer attempts during your journey.
Consequences
Getting pregnant with your own baby could be a glorious thing if that was your intention and plan. However, it will not be good for your contractual obligations and will prevent you from being matched, at least right away. The agency will have spent significant amounts of money to recruit you, screen you, and get you qualified to be a viable Surrogate candidate. Getting pregnant on your own could make you responsible for reimbursing the agency’s costs and expenses they undertook in trying to match you. It will also make it harder for you to be matched in the future if you are not able to keep your contract promise. This is a very small industry, and many of the agencies talk to each other.
Conclusion
I have seen plenty of matches fall apart, both prior to and after a first embryo transfer attempt, because the Surrogate got pregnant on her own. I wouldn’t say it is a common occurrence, but it happens more often than you would suspect, given what every woman is intending to do by becoming a Surrogate.
Stay safe and stay protected; it may take longer than you think to get matched and ultimately have a successful embryo transfer. Just remember that while the agency really wants you to get pregnant, they want it to be for someone else!
▶ ▶▶ For more information and a no-cost consultation with Attorney James Mahan, please contact The Surrogate’s Corner!
