Understanding a Surrogacy Agreement

A surrogacy contract (also known as a Gestational Carrier Agreement, or GCA) is arguably one of the most important documents that you’ll need to understand in your surrogacy journey. Regardless of whether you choose to work with an agency or in an independent journey, you should be extremely cautious proceeding without a surrogacy contract. Depending on which state you live in, participating in a surrogacy journey without a contract may even be illegal.

We’ll discuss why surrogacy contracts are so important, what aspects of the arrangement they cover, and the process for obtaining one.

Why Surrogacy Contracts are Important

The most important objective of a surrogacy contract is to equally protect all parties involved, and to ensure a successful surrogate pregnancy that discloses all terms of the arrangement and confirm the arrangement is in accordance with the specific state law. Both parties should agree on all important financial and medical terms within the agreement. The contract also details the process for making sure that the correct parentage is assigned to the child. A successful surrogacy relies on a strong legal foundation.

Understanding the Contract Topics

Surrogacy contracts aren’t just to protect the surrogate, nor just the intended parents. They’re set up to protect all parties involved equally, so that the arrangement can be completed without any major legal or financial hurdles. All important terms of the agreement are detailed so there is no misunderstanding about what all parties have agreed to. Here are a few provisions that must be in a surrogacy contract:

Current Laws

Each contract should have a description of the current law as it applies to that state. These include the parentage rights of both the surrogate and the parents, the included costs, and the protections for each outcome.

Medical Consent

Both the intended parents and the surrogate need to agree on a provision that allows testing and, as applicable, vaccination for any medical conditions or communicable diseases (such as COVID, AIDS/HIV, malaria, and zika virus). This ensures that both parties are aware of the medical risks and legal implications for undertaking a surrogacy arrangement.

Finances

The surrogacy contract needs to clearly outline each party’s obligation to pay for costs and expenses during the journey. The contract will also detail the terms of the surrogate’s benefit and compensation package. For a more in-depth breakdown of the cost of surrogacy, read more here.

Parentage

The agreement will cite the specific state’s legal authority for the validity of the surrogacy contract to ensure its enforceability. The agreement should also establish the process for obtaining the necessary parentage documents to declare the intended parents as the legal parents of the child to be born, and to declare that that surrogate and her partner are not the legal parents of the child to be born.

Rare/Unusual Outcomes

Some topics may be difficult to discuss, but are necessary to include in the contract, such as selective reduction and termination. Contracts will also include what should happen to the baby in rare cases, such as the death of the intended parents, or the surrogate being placed on life support. It is important that these discussions happen before the surrogate is pregnant so that all parties know the agreed upon course of action should an incident occur.

For more information on the items included within a contract, read this checklist for a surrogacy contract.

Drafting the Surrogacy Contract

At the start of every surrogacy arrangement, each party should have their own respective attorney. And, specifically, one that specializes in fertility law. Having a lawyer represent each party ensures a fair and equal representation of both the parents’ interests and the surrogate’s interests.

Typically, the contract is drafted by the intended parents and their attorney. That draft is then sent to the surrogate and her attorney for review. The two parties will then negotiate the terms of the contract, until all parties have their interests represented and agreed upon all terms. Once the contract is thoroughly reviewed, agreed upon, and signed, then the surrogate is cleared to proceed with the medical procedures. A letter of legal clearance is issued to the clinic to alert them the surrogate can proceed with the medications needed for the embryo transfer.

Remember, even though contracts aren’t the most exciting aspect of the surrogacy, it is potentially the most important. Take your time reading and negotiating your contract. That boring binder of pages might mean the difference between a successful surrogacy arrangement and one fraught with troubles.

For information on legal services offered by ConceiveAbilities, visit our page here.

And, are you a woman who enjoyed a healthy and successful pregnancy? Do you have friends or family who have suffered from infertility or need assistance from someone else to build their family? Have you ever considered the role you could play in helping someone else build their family - as a surrogate? Talk to us to learn more about the surrogacy process to help someone else's dream come true.

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