What you should know about surrogacy contracts

The surrogacy contract, or gestational carrier agreement (GCA), is essential for any surrogacy journey. It outlines the rights and responsibilities of all parties, covering parental rights, medical decisions, insurance, and compensation. It ensures that everyone is on the same page throughout the process.

surrogacy contract being read and signed by intended mother and fertility attorney

The legal agreement between the intended parent(s) and the surrogate (and their partner, if applicable) is known as a gestational carrier agreement (GCA). It describes the rights and responsibilities that each party has before, during, and after the pregnancy.

No matter your specific journey circumstances, you need a GCA. Whether you’re working with an agency or independently, matching with someone you knew or met for this purpose, or involving surrogate compensation or not, a GCA is essential.

You should plan for plenty of time during the contract phase so that everyone has a chance to review it thoroughly.
After successfully matching for your journey, you will start the contract process. Typically, psychological and medical screening are completed before starting the GCA, though sometimes they occur afterward due to fertility clinic policies. The intended parent(s) and the surrogate will negotiate any potential changes and agree upon a final draft before signing.

Why is the Surrogacy Agreement Important?

A strong legal foundation is imperative for a successful surrogacy journey. The goal of the GCA is to protect both you and the other party. It also establishes an arrangement that aligns with state law. Your surrogacy contract helps make sure that everyone agrees on the journey’s details, and it outlines the process for assigning the correct parentage upon birth.

You might not revisit every detail of the agreement after you initially review and sign it. However, a solid contract will guide you through any questions or issues that arise during your journey. For any questions about your contract, you can reach out to our agency for basic assistance or help connecting with your attorney for more complex matters.

Drafting and Negotiating the Surrogacy Contract

When working on the GCA, both the intended parents and the surrogate should each have their own attorney. These attorneys should be experienced in Assisted Reproductive Technology (ART) law, especially the surrogacy laws in the state where the surrogate resides. Having your own attorney ensures fair representation by a knowledgeable professional who has your best interests in mind.

At Heartland Surrogacy, we avoid conflict of interest by referring our clients to third party attorneys. We have a network of trusted ART law professionals and can help you choose your attorney. All legal fees are paid by the intended parents.

The intended parents’ attorney generally writes the first draft of the contract. It is then sent to the surrogate’s attorney for review. If the surrogate proposes any changes, they will be reviewed by the intended parents and their attorney. Another draft may then go back to the surrogate and their attorney for review. 

Any changes or negotiations must be handled through the attorneys during this process. Open and honest communication with your attorney will ensure that your needs and goals are accurately represented in the contract. Neither side should ever feel pressured to agree to any changes.

Only when everyone has agreed to all of the terms of the agreement will the final draft be circulated for signatures. At this time, one of the attorneys sends a letter of legal clearance to the fertility clinic and you can begin plans for the embryo transfer.

Most agreements are quite extensive, and you need to thoroughly understand what you are agreeing to. While some initial terms cannot be changed, such as details dealing with current law or procedures regarding parentage, many parts of the contract have room for negotiation.

What is Included in a Surrogacy Agreement?

Every surrogacy agreement will look a little different because of individual circumstances and needs, but at minimum, all GCAs should address the following:

  • Current laws: The current state laws regarding surrogacy and the enforceability of a contract should be outlined.

  • Parentage: The contract should describe the process for establishing parentage.

  • Finances: Each party’s financial responsibility throughout the journey should be detailed. This will include the surrogate’s compensation package and how payments will be made.

  • Insurance: The specifics of the surrogate’s health insurance, including the provider, premiums, deductible, etc., should be listed in the contract. There should also be a provision regarding life insurance for the surrogate. The responsible payor for the associated costs should be stated.

  • Conception: Information regarding the genetic makeup of the embryos, specifics on embryo screening or testing, the number of embryos per transfer, and the number of transfer attempts will be included in the agreement.

  • Restrictions: While we generally do not recommend imposing any major restrictions to the carrier’s normal activities, certain restrictions may be placed on travel, nutrition, or other activities to help ensure a healthy pregnancy. The surrogate will also need to agree to follow the guidance of medical professionals.

  • Rare/Difficult Outcomes: The GCA will outline what should happen in the case of rare events, such as selective reduction/termination, the death of the intended parent(s), or emergency medical decisions for the surrogate.

  • Confidentiality: This section should cover what information can be shared during the journey, such as posting on social media, blogging, or sharing with friends and family. It should also specify what information can eventually be disclosed to the future child(ren).

  • Responsibility of the Carrier’s Spouse: If the surrogate is married, their spouse’s responsibilities will be clearly outlined in the contract. The spouse must agree to all the terms and also sign the contract.

The Academy of Adoption and Assisted Reproduction Attorneys is an excellent resource, providing a list of these items along with additional considerations and detailed explanations.

We are Here to Help! 

The surrogacy contract may seem daunting at first. Take your time to read, interpret, and potentially negotiate to create a contract with which you are comfortable. It is vital that the contract protect everyone involved: the surrogate, intended parents, and the baby(ies).Your attorney will guide you through the process and Heartland Surrogacy can offer guidance on industry standards. 

Ready to start? Contact us today to get the guidance you need for a smooth surrogacy journey.