Surrogacy is a wonderful gift, but it can be challenging to navigate. There are several legalities to consider. For example, a gestational carrier agreement must be created which outlines the surrogacy terms.  

A gestational carrier agreement may seem like another obstacle in an otherwise joyous process, but it is necessary to determine how the surrogacy will proceed if a dispute arises. It protects all parties including the intended parents, surrogate and baby. The involved individuals will be thankful to have an agreement in place. 

Additionally, once you understand the contract, you will find it’s not as complex as it seems.

What is a Gestational Carrier Agreement?

A gestational carrier agreement (GCA) is a legal contract between the intended parents and the gestational carrier. It outlines each party’s rights, obligations, and expectations. It should be after your surrogate receives medical clearance and is officially cleared to move forward in surrogacy process.

It typically covers the following matters:

• Compensation: The agreement will determine how the carrier will be compensated for her services, medical, and living expenses.

• Payment: Guidelines will dictate how payments are made. An escrow account or trust is typically established for these purposes.

• Communication: The contract will outline the method and frequency of communication between the gestational carrier and the intended parents.

• Termination: Guidelines will state grounds for contract termination.

• Breaches: The contract will state how breaches are handled.

• Prenatal Appointments: The carrier must attend regular medical appointments and communicate with the intended parents regarding updates and labor.

• Birth: The carrier must provide reasonable notice of birth to ensure parents are present for the big event.

• Risks and Liabilities: The contract must address all risks and liabilities concerning IVF, gestation, and childbirth, and outline how they will be handled.

Key Components of the Agreement

Rights and Responsibilities of the Gestational Carrier

The GCA outlines several requirements for surrogacy. The gestational carrier must maintain a healthy lifestyle. She also has certain medical decision-making rights.

She must establish a healthcare regimen that includes:

• Taking medications to prepare for the embryo transfer

• Keeping medical appointments

• Eating a healthy diet (optional depending on the IPs/surrogate)

• Staying safe

• Following travel restrictions near the date of delivery

She also has the right to:

• Choose her physicians (although the intended parents may have a say in this process)

• Make all healthcare decisions including her options for pregnancy and birth

Rights and Obligations of Intended Parents

Intended parents are also subject to surrogacy requirements and have rights in the surrogacy process as follows:

Requirements:

• Age: Parents must be at least 18 years of age. Some states also have age limits stating that intended parents should have a combined age of no more than 110.

• Financial Security: The intended parents should have the finances to pay for the surrogacy and care for the child.

Rights:

• Legal Parental Rights: Parents have the legal right to claim custody of the child. They may also file a pre-birth order to ensure custody before the child is born.

• Parent-Surrogate Relationship: Intended parents can meet with the surrogate as often as they wish and can continue the relationship after the child is born.

• Involvement in the Surrogacy Process: The GCA allows parents to take part in medical decisions and attend prenatal appointments.

Requirements That Pertain to Both the Carrier and Intended Parents

Requirements that apply to both parties include the following:

• Support: The parents should have the support of their spouse, friends, or family members.

• Background Checks: Some agencies may conduct background checks for criminal activity, drug use, and substance abuse.

• Psychological Evaluation: Parents, surrogates, and their partners (if applicable) must undergo a mental assessment to ensure they are stable enough to care for a child.

Legal Parentage and Birth Certificate Issuance

The gestational carrier must also release legal parentage to the intended parents and ensure they receive custody of the baby. The GCA will outline these requirements and processes. 

There is typically little issue with the transfer of custody. However, parents may consider filing pre-birth orders to ensure everything goes according to plan. They may also need to follow post-birth legal procedures, but these requirements vary from state to state.

Dispute Resolution and Termination Clauses

Disputes may arise during the surrogacy process. A GCA may outline resolution guidelines. Otherwise, the parties may consider the governing law, or seek counseling to resolve their differences.

Parties should plan for contingencies and resolve issues early before they develop into bigger problems.

Termination clauses outline the conditions under which the pregnancy can be terminated. The surrogate ultimately has the right to decide if she wants an abortion, regardless of the contract terms. However, if she decides to terminate the pregnancy, she will be required to reimburse the parents for all compensation.

Additionally, if the parents request an abortion and the carrier refuses to comply, she may have to reimburse the parents for all expenses.

Surrogacy Simplified Simplifies the Gestational Carrier Agreement Process

We understand how difficult it can be to deal with legalities during the surrogacy process. We provide support throughout your entire journey to parenthood. Intended Parents working with Surrogacy Simplified find that the support provided helps ensure they've found their perfect surrogate match. That way, when it comes time for the legal process, there is not much back and forth on agreement for terms since everyone was on the same page from the beginning.

Schedule your complimentary initial consultation today and learn how we can support you in your surrogacy journey.