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Retainer Fees in Surrogacy Arrangements

© Heather Weller

The subject of retainer fees in independent surrogacy agreements has recently raised many discussions on online forums regarding surrogacy. A retainer is a fee paid to one party in a surrogacy arrangement (generally paid to the Surrogate) up front once they agree to work together. The most often mentioned reason behind requesting a retainer fee is to establish the "seriousness" of both parties about the arrangement. It's not a subject without debate, however, and in this article, I plan to explore some of the reasons behind the use of a retainer fee. Although some Intended Parents have questioned whether it's only the Surrogate who should be protected by a retainer fee, for the most part, it's the Surrogate who's requesting the retainer; for that reason, I will address that situation for this article.

One common problem many Surrogates and Intended Parents working independently (that is, not using an agency to facilitate their surrogacy) is the whole matching process. There are many potential pitfalls during this matching phase, but one that comes up again and again is people finding someone they think is the "perfect match" only to find out that person isn't as seriously committed to surrogacy as originally thought. This can result in Intended Parents who drag their feet about having a contract drawn up or getting an egg donor or coordinating monitoring with their clinic, or with a Surrogate who hesitates to go through with her screening or suddenly realizes she doesn't have the support she needs to proceed with the surrogacy. While it is still possible, it's rare to have these types of situations when going through an agency: the sheer paperwork and pre-matching screening required by most agencies tend to screen out potential Surrogates who aren't positive they're ready to proceed. Likewise, the combination of said screening and the initial outlay of a retainer to the agency work to assure that Intended Parents who sign up are usually willing and ready to proceed. Not so with those who are looking for an independent surrogate arrangement, as many places online allow a potential Surrogate or Intended Parent to advertise for free or a small fee, letting those who are just considering surrogacy put their name out for matching before they're even sure they are ready to proceed.

This is where the issue of retainer fees comes into play. Many Surrogates searching for Intended Parents online have complained of running into replies to their ads from couples who have not yet done any research into surrogacy - especially the expenses involved - before replying. Surrogacy is a wonderful way to bring children into a family that could not otherwise have them, but it is an expensive way of doing so, as well. Along those lines, many Intended Parents see the retainer fee as simply another expense they'll incur along the way, and for some, that fee can make or break the deal. Surrogates generally want the retainer fee upon a "verbal agreement" to work together, before the formal contract is completed and signed (as the contract stage itself can take quite a while, the retainer is used as good faith money to ensure the Intended Parents will follow through with it).

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