I signed an Exclusivity Contract – How can I get out of it and Switch Agencies?

Have you signed a contract with a potential Surrogacy Agency, but now want to switch to another Agency and you are unsure of your rights to be able to do that? This blog looks at whether a contract between a Surrogate and an Agency to be exclusive with one another is valid and can be enforced.

Exclusivity contracts, also known as exclusivity agreements, are legal agreements between two or more parties where one party agrees to work exclusively with another party for a specific period of time. These agreements are commonly used in business to secure partnerships, joint ventures, or other collaborations. In Surrogacy, some Agencies make their potential surrogates sign them to try and prevent a surrogate from looking at many Agencies.

While exclusivity contracts can be useful for businesses to protect their interests, there are several reasons why they may not be enforceable. In this blog, we will explore why exclusivity contracts are not always enforceable and what factors make them invalid.

1. Lack of Consideration

For any Exclusivity contract to be enforceable there must be a “meeting of the minds” between the parties and a valid consideration. Consideration is a legal term that refers to something of value that is given in exchange for something else. In the case of an exclusivity contract, consideration may be in the form of compensation or other benefits provided to the party that is bound by the agreement. In a Surrogacy Exclusivity contract, that would mean a substantial amount of money or benefit is given to the surrogate to make her be exclusive with the Agency. If your Agency has made you sign an agreement with them and has not directly compensated you for the time period that you are under contract to them, it is not a valid agreement.

If you have signed an exclusivity agreement and the Agency has not paid you anything but has promised future funds to you if you meet conditions, like passing screening or completing legal, then it is not a valid Exclusivity contract. The Consideration paid to you must be solely for the time you are giving in exclusivity to the Agency. Especially invalid is an Exclusivity contract where the Agency also then requires you to expend your own funds to travel to screening or does not directly reimburse costs. Simple Surrogacy does not do this!

2. Unreasonable restriction of Trade

Another reason that these contracts may not be enforceable is that they can be considered an unreasonable restriction of trade. This means that the agreement may be viewed as limiting the ability of the party not bound by the agreement to conduct business or pursue other opportunities.

Courts may view an exclusivity contract as an unreasonable restriction of trade if it is too broad or too long in duration. For example, a contract that prohibits a Surrogate from working with any other company for an indefinite period may be deemed overly restrictive. In the case of a Surrogacy Contract, if the time period is longer than average time to match to Intended Parents (less than a Month at Simple Surrogacy after your application is complete!) then it may automatically be considered invalid.

3. Violation of Anti-Trust Laws

Exclusivity Contracts may also be unenforceable if they violate antitrust laws Antitrust laws are designed to promote fair competition and prevent businesses from engaging in practices that could harm consumers or limit competition. If an exclusivity contract is deemed to be anticompetitive, it may be deemed unenforceable. In the case of a Surrogacy Exclusivity Contract, prohibiting a Surrogate from speaking to another Agency could definitely be seen as Anti-Trust behavior.

4. Lack of Clarity and Representation to Explain

Finally, exclusivity contracts may not be enforceable if they are unclear. A contract that is unclear or open to interpretation may be difficult to enforce if there is a dispute between the parties. To make sure that an exclusivity contract is enforceable, it should be clearly written, free from ambiguity, and contain all the necessary terms and conditions. If there is any confusion or disagreement about the meaning or intent of the contract, it may be difficult to enforce. In addition, each party to the contract should have access to an attorney to explain the agreement to them and the limitations of the Agreement. If your Agency made you sign an exclusivity agreement without providing you with access to an attorney to review it, then it could be argued you did not have informed consent to be able to consent to the contract.

5. Enforcement

Finally, an Agency would not undertake suing a surrogate to enforce them remaining at the Agency under the terms of an exclusivity contract. That would be a very expensive undertaking and would be legally questionable to enforce. In addition, a surrogate being sued by their Agency would be a very bad sign to a future surrogate applying with them. In general, lawsuits are a very bad look for an Agency, so most Agencies try to avoid them whenever possible.

In summary, if you have signed an exclusivity contract with your Agency, and want to change Agencies, you probably can! Simple Surrogacy is a 20+ year Agency that is all women-owned. We would be delighted to serve your surrogacy Journey!