Just how many embryo transfers are you obligating yourself to when you sign-up with a surrogacy agency?
Answer: It depends.
As you will discover, every agency is different; most recruit Surrogates and market themselves to Intended Parents in a variety of ways. One item to be aware of is the number of embryo transfers the agency is expecting you to commit to.
What do you look for?
In the agency retainer documentation or commitment paperwork, it will often tell you if you are expected to undergo a minimum number of transfers with each of your matches. 
Some will not have a set requirement at all. What this means for you is that when your surrogacy contract between you and your future Intended Parents is created, you will likely be allowed to cancel your surrogacy contract for any reason as long as you are not pregnant. You won’t need a valid excuse or good reason and you won’t be required to complete any number of embryo transfers before you have the ability to cancel your contract.
Other agencies will require you to commit to undergoing some number of embryo transfers (usually up to three) before being able to cancel your contract with your matched Intended Parents. Those agencies typically have a “valid excuse” clause that allows you to get out of your contract if you have a really good reason (i.e., death in the family, serious illness for you or your kids, needing to take care of a parent, etc.). The implications of this transfer requirement could be very profound on the timing of your future surrogacy journeys.
Why does it matter?
This is important for you because it could impact how/when you are able to cancel your surrogacy contract. The attorneys drafting your surrogacy contract will take the specific provisions each agency has and incorporate them into your surrogacy contract with the Intended Parents. If the number of embryo transfers is specifically called out in your agency contract, then you can expect it to be in your surrogacy contract as well. This would obligate you to working with your matched Intended Parents for a while longer than a contract without such a requirement would. If you have to get through three transfers before you are able to cancel the contract without any financial repercussions (needing to pay back some of the payments you received or costs you incurred), then you can expect to stay in your match for a much longer period of time.
It also can effect when the surrogacy agency will re-match you. In surrogacy contracts where there is no commitment to a specific number of transfer, the contract will acknowledge that the first embryo transfer could be unsuccessful and additional transfers might be needed. Those contracts usually still allow for you to cancel the contract whenever you want, for any reason, as long as you are not pregnant. However, that is different from agreeing to do three transfers before you are able to ask to cancel your contract and get rematched. Even if you are not thrilled with the Intended Parents you have been matched with, you might be working together for a long time if you need to get through three transfers before being able to ask for a new match.
Gestational Surrogates and Intended Parents would love to get pregnant on the first embryo transfer. Unfortunately, that is not always going to be the case. Unsuccessful transfers could be attributed to a lot of factors, one of which might be embryo quality. If your contract commits you to undergoing a certain number of transfers, and your Intended Parents are advised to create new embryos, then this can further delay the process. You won’t know when you sign up with your agency if the Intended Parents you match with will have really high quality embryos or not.
What are your options?
Surrogacy agencies that have multiple transfer commitments can recruit Intended Parents who are nervous about their Gestational Carriers walking out on them if a transfer isn’t successful or before a transfer is even attempted. This kind of transfer obligation provides those Intended Parents with a great deal of comfort knowing that the Surrogate they match with is committing to undergoing a certain number of transfers before cancelling the contract. In that regard, this could be a positive thing for you because those agencies might have a larger pool of Intended Parents to match you with. Just keep in mind that if you want the option to cancel your surrogacy contract whenever you want and ask to be re-matched for a sensible reason, then an agency with multiple embryo transfer requirements may not be the best option for you. You will want to ask the agency representative you are working with if their agency has a transfer requirement before you sign their agency contract.
Conclusion
There will be numerous things on your surrogacy journey that are beyond your control. One of the few things you can decide in your sole discretion is whether or not to cancel your contract. If you have an obligation to undergo a certain number of transfers and you want to cancel your contract, there will likely be some monetary payments that you are required to reimburse to the Intended Parents if you cancel prior to completing all of your obligated transfers. You just want to make sure you know what you are obligating yourself to doing early on, including when you sign your agency contract.
▶ ▶▶ For more information and a no-cost consultation with Attorney James Mahan, please contact The Surrogate’s Corner!
