The surrogacy contract is a legal agreement between the intended parent(s) and the surrogate (and her spouse/partner, if applicable). Known as a gestational carrier agreement (GCA), it is a necessary part of any surrogacy arrangement, regardless of specific journey circumstances. These include working with an agency or independently; matching with someone you knew before the match or someone you met for this purpose; or involving surrogate compensation or not. The surrogacy agreement will outline the rights and responsibilities each party has before, during, and after the pregnancy. It addresses subjects such as parental rights, control over medical decisions, insurance, and payment of expenses and surrogate compensation.

Your contract will be completed after you successfully match for your journey. Generally, psychological and medical screening are completed before the contract process begins, but occasionally they come afterward (typically due to a policy of the fertility clinic). You should plan for plenty of time during the contract phase so that everyone has a chance to review it thoroughly. 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 parties and confirm that that arrangement is in accordance with state law. Surrogacy contracts help ensure that both parties agree on the details of the journey and outline the process for assigning the correct parentage upon birth.

You may not review all the details of the agreement again after you initially review and sign. However, a solid contract will guide you through questions or issues that may arise during your journey.

What is the legal process?

When working on the GCA, the intended parents and surrogate should each be represented by their own attorney. Both attorneys should be experienced in Assisted Reproductive Technology (ART) law and specifically the surrogacy laws in the state where the surrogate resides. Having your own attorney facilitates fair representation by a knowledgeable attorney with you best interests in mind. At Heartland Surrogacy, 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 parent’s 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 her attorney for review. Any changes or negotiations must go through the attorneys during this process. Openness and honest communication with your attorney will ensure that your needs and goals are being represented in the contract. At no time should either side to 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. It is generally at this time that a letter of legal clearance is sent by one of the attorneys to the fertility clinic and the preparation for embryo transfer can begin.

What should be included in a gestational carrier agreement?

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

Every surrogacy agreement will look a little different because of individual circumstances and needs, but at minimum, all GCAs should include 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 will 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 not only what information can be shared during the journey (such as posting on social media, blogging, or sharing information with friends and family) but will also include what information can ultimately be disclosed to the future child(ren).

Responsibility of the Carrier’s Spouse: If the surrogate is married, her spouse’s responsibilities will be outlined and he/she will need to agree to all the terms of the contract.

The Academy of Adoption and Assisted Reproduction Attorneys is a great resource that lists these items, as well as additional considerations and explanations.

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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. Your attorney will guide you through the process and Heartland Surrogacy can offer guidance on industry standards. It is vital that the contract protect everyone involved: the surrogate, intended parents, and the baby!