Understanding a Surrogacy Agreement

By Fran Caruso, Esq.

A surrogacy contract (also known as a Gestational Carrier Agreement or GCA) is arguably one of the most important documents of the surrogacy journey. Below is a brief overview of the process of drafting the GCA as well as the different terms, rights, and responsibilities that will be contemplated by all parties in the GCA.

Drafting the Surrogacy Contract

The intended parents and the gestational carrier should each have their own separate independent attorney’s who specialize in reproductive law. Having a separate attorney represent each party ensures a fair and equal representation of both the parties interests.

The GCA is drafted by the intended parents’ attorney and includes all of the substantive terms discussed during the matching process. The intended parents will review the agreement with their attorney and then it will be sent to the gestational carrier and her attorney for review. Through their respective attorney’s, the parties will then negotiate the terms of the GCA until all parties have agreed. All parties should expect that there will be some back and forth negotiation of the GCA; this is a good thing and ensures that both parties had adequate representation and understand their rights and responsibilities. Once the terms are agreed to, all parties will execute the GCA and move onto the phase of the journey.

Understanding the Contract Topics

The GCA exists to protect all parties and ensure everyone understands their rights and responsibilities. Below are some of the terms that will be contemplated in the GCA.

• Recitals & General Provisions: These sections outline the relevant information about all parties as well as the intent of everyone entering into this agreement. This is essentially a background section that provides critical information as to who, what, where, when, and why. You will also find a numerous defined terms located in this section that provide clarification for the remainder of the GCA.

• Travel: Provides the details around when and where the gestational carrier can travel during the journey. There will be certain restrictions on travel, both domestic and international, to ensure that the child is born in a surrogacy friendly state.

• Confidentiality: This section will detail what information may or may not be disclosed regarding the intended parents, gestational carrier, terms of the GCA, and resulting pregnancy. This will also contemplate any future contact between the parties and disclosure to the child that they were born via surrogacy.

• Medical Considerations: These sections contain some of the most lengthy and sensitive terms including medical screening, testing, undergoing procedures, taking medications, embryo transfer, gestational carrier’s limitations while pregnant, vaccinations, termination or selective reduction, medical emergencies, and facts surrounding delivery of the child.

• Finances: This will not only detail any financial compensation/reimbursements the gestational carrier is entitled to, but will also detail financial responsibilities for things like insurance, lost wages, bedrest, etc. For a more in-depth breakdown of the cost of surrogacy, read more here.

• Parentage: The GCA will cite the specific state’s legal authority. It will also detail the process for obtaining the necessary parentage documents to declare the intended parents as the legal parents of the child. It will also contemplate the specific details as to custody and care of the child immediately following birth.

• Breach & Termination of Agreement: While all parties enter into the GCA hoping and anticipating that there will be no problems, it is essential that the worst-case scenarios are acknowledged and anticipated.

• Assumption of Risk: Surrogacy and pregnancy are complex matters. All parties need to understand not only their protections, but also the potential risks.

• “Boiler Plate” Terms: The final part of the GCA will include numerous terms, which are called “boiler plate” terms as they can be found in most contracts, not just surrogacy contracts. These will include things like identification of the respective attorneys, notice requirements, modification procedures, signature specifics, etc.

Even though the GCA may not necessarily be the most exciting aspect of the surrogacy, it is extremely important and is critical to confirming all parties are on the same page at the outset of the journey. Take your time in reviewing the GCA and be sure to ask your attorney any and all questions.

Learn more about growing your family with surrogacy.

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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