Variations in Gestational Carrier Agreements

As assisted reproductive technology (ART) attorneys, we have the privilege of working with many hopeful parents and dedicated gestational carriers during the legal phase of the surrogacy journey. We either represent the intended parent/s and/or the gestational carrier (and her spouse, if any) in any given journey. As you may imagine, we have many, many conversations with our clients about the same topics, including number of transfers, the schedule for funding the escrow account, lifestyle choices of the gestational carrier, travel restrictions, expectations regarding contact between the parties after delivery… the list goes on. We make sure to over-discuss these important issues, so that when something arises, it has usually already been contemplated in the agreement and we can seamlessly put the already agreed upon solution in place.

However, this does not mean that all surrogacy agreements look alike. Not at all! Since there are different personalities, agencies, and clinics involved, all surrogacy agreements must include certain pieces, like clauses regarding compensation, if any, termination of the contract, or termination of the pregnancy. But, there are many ways in which surrogacy agreements vary from one to the other, which is why it is so important to speak to an experienced ART attorney regarding your specific circumstances.

Here are just a few:

State-based variations

In the US, surrogacy law is best described as a hodge-podge. There is no federal surrogacy law, so ART attorneys licensed in different states have to make sure their agreements comply with their state statutes, or, in the case of a state with no surrogacy statute, with past court decisions or local best practices. For example, in New York, Intended Parents must have properly executed wills in place before the embryo transfer that specifically designate a guardian for all resulting children and authorize their executors to perform obligations on their behalf required by the surrogacy agreement. As such, New York surrogacy agreements must reflect whether or not Intended Parents already have these wills in place, and, if not, that they agree to complete them before the embryo transfer.

States have other important variations that should be reflected in the agreements. These include whether the judicial process to affirm parental rights occurs before or after birth, whether state law restricts the gestational carrier’s right to terminate the pregnancy for a medical reason, and whether state law regulates who is eligible to be a party to a surrogacy agreement based on marital status, age, citizenship, and/or residency.

Agency policies and practices

Agreements regarding surrogacy journeys facilitated by an agency usually reflect the practices of the matching agency, which can vary widely. For instance, agencies have different policies regarding the schedule for funding the escrow account and reimbursements for the gestational carrier. Some agencies have a policy that the gestational carrier receives reimbursement for lost wages on a “net” (after deductions for taxes) basis, while others calculate lost wages on a “gross” (before deductions) basis. Some agencies provide in-house attorneys to their clients, some refer their clients to outside counsel. In fact, some agencies draft the surrogacy agreement themselves, and then provide it to the intended parents’ and gestational carrier’s attorney for feedback.

Clinic requirements

Agreements should also reflect the requirements of the clinic that will be facilitating the embryo transfer and monitoring the progress of the pregnancy. Some clinics require or recommend that the gestational carrier undergo a mock cycle that mimics the medication protocol followed during the embryo transfer cycle. The purpose of the mock cycle is to evaluate the response of her uterine lining to the medications, which help prepare the uterus for the implantation of an embryo. If the clinic requires this, the surrogacy agreement may include, or the parties may separately sign, a Mock Cycle Agreement.

Wishes of intended parents

Many intended parents have preferences of their own that they wanted to be reflected in a surrogacy agreement. Intended Parents may have wishes regarding communication regularity between themselves and the gestational carrier, delivery of the child, the possibility of the gestational carrier providing breastmilk, and their involvement in any doctor’s appointments that should be discussed and memorialized in the agreement. Some intended parents have preferences regarding nutrition and lifestyle choices during the pregnancy, such choosing organic food options over non-organic ones, that may need to be agreed upon and reflected in the contract.

Preferences and needs of gestational carriers

Gestational carriers have a variety of needs that require agreements to be truly customized. These may include the need for the intended parents to purchase a supplemental healthcare policy on the gestational carrier’s behalf if the policy she has excludes pregnancy care for surrogates. A gestational carrier may also desire to speak with a mental health professional throughout the surrogacy journey, an expense which may be agreed to by the intended parents and reflected in the agreement. Some gestational carriers have particular travel arrangements that have to be reflected in the agreement, or they need to cross state lines for their jobs or important events. A common issue that must be acknowledged in any agreement is a gestational carrier’s (and her spouse’s, if any) preference regarding vaccinations, particularly for COVID-19.

As you can see, no two surrogacy journeys are exactly alike. That’s why it is crucial to build a supportive team of experienced agency team members, attorneys, medical, and mental health professionals who can help you navigate this process. Ready to start the process? Click here for a free consultation.