Gestational Carrier Agreement: Everything You Need to Know

Establishing a surrogacy contract (also known as a Gestational carrier agreement) is one of the most important aspects of any surrogacy journey.

Whether you work with an agency or close friend the rights and responsibilities of each party to the pregnancy must be clear to ensure understanding of the arrangement and a smooth surrogacy.

Below is a brief overview of what gestational carrier agreements are and why these contracts are so important.

What is a Gestational carrier agreement?

Gestational carrier agreements are contracts that define the rights and responsibilities of everyone involved with a Gestational Carrier aided pregnancy.

Participants in this agreement include the intended parent(s), the gestational surrogate, and the surrogate’s spouse if married.

Both the intended parents and the gestational carrier should be represented by an attorney in developing and negotiating this contract. This ensures everyone has a clear understanding of their rights and their responsibilities to the other parties. 

Why Are Gestational Carrier Agreements Important?

Gestational carrier agreements are critical to any surrogacy arrangement. A well-formed surrogacy agreement protects all participants involved – intended parents, gestational carriers, and the future child.

A well-structured surrogate agreement can:

• Help establish parental rights and obtain documents from the courts in a smoother fashion.
• Outline important legal, financial, and personal requirements, preventing misunderstandings and avoiding disputes.
• Plan for unforeseen circumstances

Surrogacy contracts set out all expected duties, decision-making, fees and expenses, and more between a surrogate and the intended parent(s).

Who Should Have a Gestational Carrier Agreement

Everyone who enters a surrogacy arrangement should have a gestational carrier agreement.

That includes:

• Those using an agency
• Those pursuing independent surrogacy
• Those pursuing gestational surrogacy
• Those pursuing traditional surrogacy
• Those using their sister, mother, or cousin as their surrogate
• Those using their best friend or other trusted acquaintance

When should the agreement be signed?

What your gestational carrier agreement should include?

Every carrier agreement will look different based on state surrogacy laws and each party’s individual needs and circumstances. 

In general, every surrogacy contract should cover several important elements including: 

• Parental rights
• Custody issues
• Surrogate compensation and reimbursements including the amount and timing of payments before, during, and after pregnancy for expected and potentially unexpected events. Including things like reimbursements for pregnancy clothing, lost wages, required childcare due to surrogacy, and more.
• Escrow accounts
• Legal fees
• Availability of medical history and personal medical and social history
• Attendance of prenatal appointments and delivery
• Location of delivery
• Risks of the fertility treatment and pregnancy
• Uncertainty of the pregnancy
• Social and health responsibilities that the surrogate must uphold before and during the pregnancy
• How to handle multiple pregnancies
• How to handle medical complications with the surrogate or baby
• Control over medical decision-making during the pregnancy: for example, selective reduction or termination, if necessary
• The desire for the surrogate to pump and provide breast milk
• Future contact between the parties

Again, both parties must be represented by independent counsel to ensure fair treatment and a clear understanding by all involved parties.

Negotiations may take place until both parties are happy with the terms of the agreement.

How much does a gestational carrier agreement cost?

Drafting a carrier agreement can cost from $2,000 to $10,000 and depends on the state where the surrogacy journey takes place. 

Intended parents pay for their own and their surrogate’s attorney for the drafting and negotiating of the gestational carrier contract.

Some agencies, like Surrogate Steps, utilize an in-house attorney to draft the carrier agreement. Having an agency attorney can simplify the process for the intended parents.

Dangers of independent carrier agreements

Some surrogates and intended parents may find it convenient to download and use a template surrogacy contract online. Although there are sample surrogacy contracts available for download, it is never advisable to attempt the surrogacy agreement without professional legal representation and counsel.

Templates found online may be generic and cannot address the unique needs and circumstances of each party. They typically fail to cover all possible outcomes and variables that might arise during the surrogacy process.

Without a strong legal contract, there is virtually no protection in place for the surrogate, the intended parents, or the child. The absence of legal oversight leaves all parties vulnerable to disputes and uncertainties.

While the legal process may seem daunting, it is worth the necessary time and effort to work with an experienced attorney who can create a strong legal surrogacy contract, thereby safeguarding the overall surrogacy process and protecting all involved parties.

Bottom Line

While a gestational carrier agreement may not be the most exciting aspect of surrogacy, it is extremely important in verifying everyone is on the same page at the outset of the journey and holding people accountable for their commitment. 

The gestational carrier agreement solidifies the understanding of both parties, ensures everyone understands what they are entering, and agrees on key issues including parental rights, custody, compensation, fees, insurance, social responsibilities, medical decision-making, and more. Additionally, the gestational carrier agreement is often the founding document needed to obtain and secure parental rights for the intended parents.

Talk to your attorney or contact the experts here at Surrogate Steps if you’re looking for help in navigating the complexities of the gestational carrier agreement or surrogacy journey.