Making it real – legalities of gestational surrogacy

Photo is of a woman and man at a dining table signing contracts.

When you work with a surrogacy agency – whether you’re a gestational carrier or parents-to-be – you need to have a contract. We have some advice on how to be prepared for the legal agreement before you put ink to paper.

What is the legal process for parents-to-be and a gestational carrier?

All gestational carriers and parents will enter into a legal agreement prior to starting medications and having the embryo transfer. While everyone is typically excited to get started, reviewing the legal agreement between both parties is definitely a time to pause and to think carefully about the agreement you will be signing. Take the time to make the changes you need.  Follow your intuition and professional legal advice.

Most contracts are tucked away and not needed again, but they outline all of the ‘what ifs’ and ‘what next’ for the time a carrier and parents will be working together – from the first medication to the weeks postpartum.

Legal representation

Parents and a carrier should EACH have their own attorney who represents their best interests in the contract. The carrier’s attorney is paid for by the parents-to-be. At Forward Fertility, the attorneys we work with are independent and licensed in the state where the carrier will deliver. Other agencies may have their own ‘in-house’ attorneys who help you with the contract. Keep in mind, those attorneys are representing the agency, not you!

Contracts’ content

From compensation agreements to insurance coverage, the number of embryos to transfer, and what to do in tragic outcomes, the legal contract will cover a lot of topics! If you are working with an agency, none of these should be a huge surprise to you. Ideally the match between the gestational carrier and the parents will be one where both parties are generally on the same page. 

At Forward Fertility, the detailed compensation information shared in a gestational carrier’s profile will help the parents-to-be budget for potential expenses. It also means that a carrier won’t be asking for extra compensation when it comes time to negotiating the contract and the parents won’t be negotiating for less. No one wants to start such an important, human relationship disagreeing over maternity clothing compensation.

What about the sticky topics?

The sticky topics of surrogacy are tough! What happens if the fetus has an abnormality? Is there a possibility for an abortion? Will a gestational carrier follow the parents’ wishes? What about food and drinks – how much coffee can you have each day? Will the parents be allowed in the delivery, if COVID policies allow? What if there is a death, separation, or divorce? What do you do if you lose your health insurance? Maybe reading this paragraph makes you want to skip being a gestational carrier or parent-to-be all together!

Your agency should be talking with you about the sticky topics as you go through the application process. When it comes time to speak with your attorney, read each sentence as if it is actually happening – there is a reason these topics are covered. While these topics rarely come up, the chance is not zero.

Top tips from parents and gestational carriers regarding the legal contract:

* Read the contract carefully – pretend there is an error in it and your job is to find it! 

* Take your time. Sleep on it.

*Ask questions.  If…….then what happens? What if I were to…… would that be ok?

*Ask your agency for help if you need it.