When working out the details of your Gestational Surrogacy Agreement (GSA), lost wages are a vital aspect to consider. Discussion about lost wages can often cause confusion and unnecessary stress. Lost Wages typically come with many variables that should be addressed during contract review. And all parties must understand what can be reimbursed throughout the journey and the specifics needed to request such reimbursement.
This guide will help you understand what can be reimbursed throughout the journey and what should be outlined in your gestational surrogacy agreement regarding lost wages, so you can make sure you’re prepared from day one of your surrogacy journey.
As part of SeedTrust’s surrogacy escrow services, we review each request in strict compliance with the GSA before disbursing payment. Our legal team has created a list of items that should be included in your contract to help avoid confusion and delays at reimbursement time.
The contract should be specific about payments made
It is important that the contract includes very specific language about the payments made to the surrogate. This will help to avoid any misunderstandings or disputes down the road. The contract should spell out exactly how much the surrogate will be paid, and when those payments will be made. Additionally, the contract should specify what types of expenses will be covered by the intended parents. For example, will the surrogate be reimbursed for lost wages if she has to take time off from work? Will she be reimbursed for childcare expenses?
Complications must be considered as part of the lost wage policy
In the event that complications arise during the pregnancy and delivery that require additional medical care, it is important that your surrogacy agreement includes a lost wage policy that will cover the cost of these additional expenses. Including this provision in your agreement will give you peace of mind knowing that you are prepared for any eventuality.
What is the surrogate’s companion entitled to?
The surrogate’s companion is typically entitled to lost wages for the time they take off from work to accompany the surrogate to doctor’s appointments, ultrasound appointments, and other appointments related to the surrogacy journey. The amount of lost wages that can be reimbursed should be clearly stated in the gestational surrogacy agreement.
With this in mind, we recommend that the following be included in each GSA:
Lost Wages
- Account for both the Gestational Carrier (GC) and her companion.
- Establish the Intended Parent(s)(IP) responsibility; will they only be responsible for the difference between her regular wage and the amount provided by disability? State who is responsible for any elimination or waiting periods before payment; this includes if paid time off or vacation is required to be exhausted before disability providing payment. Outline who is responsible for any short-term disability policy premiums and who she shall notify if there are any changes to her policy or coverage.
- Clearly define eligibility requirements to receive lost wages. Is she eligible for lost wages when work is missed for an appointment, will there be differences in reimbursement before pregnancy versus during or post pregnancy, and is there a mileage or time requirement that must be met to be reimbursed? Also, be clear about what documentation is required for reimbursement. (What if the Surrogate is too sick to go to work but does not have a doctor’s note?)
- Define lost wages for the GC and her companion; will lost wages be defined as net lost wages or gross lost wages? If net, define net lost wages – is it all deductions or only required State and Federal deductions? Determine an hourly or daily wage amount – only define one to avoid confusion. Define if other types of pay or commission should be used in calculations; determine whether raises are allowed to be considered. Set an allowable rate or percent of the wage increase. Set a maximum payout over the life of the journey. Preferably, DO NOT include any calculation. Instead, have the hourly rate and the maximum number of hours per day/week the GC and companion may be reimbursed, noting any maximums. Also, for the companion, providing the maximum number of days the companion can be reimbursed for lost wages for each milestone throughout the contract’s life is helpful.
- Specifically provide daily or hourly wage amount for self-employed/1099 GC or companion; Define what type of documentation should be provided to support the lost income;
- Make sure to include provisions that discuss what happens if the Surrogate changes job or becomes employed during her surrogacy (if she was not employed before pregnancy).
Bed Rest Maximums
- Specify the type of delivery vs. the allowable amount of lost wages and bed rest compensation – Maximum bed rest compensations should be set dependent on the type of delivery; vaginal or cesarean.
- Clearly define if a physician’s note will be required for all bedrest, pre-delivery, and post-delivery.
- Ensure that the difference between gross and net lost wages has been communicated during the contract phase. Preferably, DO NOT include any calculation. Instead, put in the hourly or daily rate and the maximum number of hours per day/week the GC and companion can be reimbursed for lost wages for the contract’s life.
Clearly define what the companion is entitled to post-delivery, if any.
Final Thoughts
When it comes to gestational surrogacy, it’s important to have a clear and concise agreement in place between all parties involved. This agreement should include a section on lost wages, detailing what can be reimbursed and how. By doing this, you can help avoid any misunderstandings or disputes down the road.
A well-written GSA is essential to ensure that each party’s needs are properly taken care of throughout the journey, as well as provide peace of mind for everyone involved. Be sure to consult with an attorney familiar with the surrogacy laws in your state to assist you in drafting an appropriate contract.