Gestational Carrier Agreements - The Cornerstone of Surrogacy

Surrogacy has a lot of steps in the process — applications, medical clearances, psychological evaluations, match meetings, the legal process, shots, more shots, the embryo transfer…the list goes on. All of them are important — for sure! However, perhaps one of the most important steps of the entire process (except for maybe the actual birth, of course!) is the gestational carrier agreement. Why? The gestational carrier agreement, as the title of this blog suggests, is the cornerstone of a smooth surrogacy process, where all parties’ rights and obligations are understood and protected. 

It’s like the blueprint of building a house. If written correctly, and thoroughly thought out by all parties, it should state all parties’ expectations, obligations and rights, thus eliminating, or at least reducing, future disagreements and communication issues. The gestational carrier agreement is a legal contract between the intended parent(s) and surrogate (and the surrogate’s partner/spouse if she has one). What it says is enforceable by law, which is why the legal process is so important and can sometimes take more than a month to complete!

Because the goal is to include the things that are important to you in the agreement, it’s VERY important to have open and honest conversations. Whether you’re the intended parent or the gestational carrier, you want your needs to be heard. This is your journey. There are lots of things to be considered, so take your time, think about how you want it to go and don’t be afraid to ask questions!

So, what’s included in a gestational carrier agreement? We’re so glad you asked! Here’s a neat, little bulleted list of commonly included items. But keep in mind, this is not an exhaustive list. Your agreement may include other provisions that are important to you.

  • Base Compensation — This goes by a lot of names, like “living expense reimbursement” or “pre-birth child support,” and it is obviously one of the main things that is covered because you definitely want to make sure you are both on the same page. Compensation can vary widely among surrogates. It may depend on whether it’s an independent match or if an agency is involved. It also varies depending on if the surrogate is experienced (has been a surrogate before) or not. Experienced surrogates usually have a higher base pay — much like someone who gets any type of job who has experience gets paid a higher amount than someone with no experience. 

  • Additional Expenses — The money part of the agreement also lays out how much the intended parents will cover for maternity clothes, travel expenses, child care, housekeeping, lost wages for the surrogate and her partner, life insurance costs, health insurance costs and medical bills. The surrogate may also receive compensation for each invasive procedure she might have to undergo...the list goes on. These expenses differ greatly from contract to contract depending on what the surrogate and her partner do for a living, what life and health insurance they have, where the surrogate lives in relation to the intended parents’ fertility clinic and if the surrogate ends up on bed rest or with a C-section and needs more time off of work, among other variables.

  • Pre-Implantation Genetic Testing — This is one that isn’t a super obvious one to include, but it may be important to either side whether testing is completed on the embryos. For example, a gestational carrier may only want to work with intended parents who will be testing their embryos because it may increase the chance of any given transfer procedure working as well as decrease the chance of termination issues arising. 

  • Prenatal Care and Birth — There will likely be a section about prenatal care and the birth. The agreement will state what both parties have decided as far as where the surrogate will receive prenatal care; for example, will it be with a hospital, birth center, midwife or doctor. There is usually a section about who is allowed in the room at appointments and the birth. For example, does the surrogate want a doula or a birth photographer?  Are the intended parents allowed in the room during the birth? 

  • Other Parts — Other parts of the contract may include representations by both parties that they confirm are true, such as the gestational carrier stating that she has had a prior birth, no health issues that could cause problems during the pregnancy, she agrees to relinquish parental rights, that she will give the right to name the baby to the intended parents, who and when the surrogate will have to notify when she goes into labor...the list goes on. If the surrogate has a partner, he or she will likely have to make certain representations and sign the agreement as well. 

Any two gestational carrier agreements are likely to look significantly different. They will be unique for each surrogacy journey depending on the parties involved and what they are looking for. This type of contract can be time-consuming and maybe not everyone’s favorite part. But it’s important! It involves a lot of communication and decisions during the legal process and sometimes quite a bit of back and forth until both parties are happy; however, having the conversations upfront and getting everything in writing will save everyone a lot of heartache and emotion down the road.

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