Elements of a Gestational Carrier Agreement
Contributed by Stephanie M. Caballero, Esq.
The Surrogacy Law Center, PLC
When drafting a Gestational Parenting Agreement there are key terms and provisions that should be included in every surrogacy agreement so that the intended parent(s) and the gestational carrier are as protected as possible during the medical process through pregnancy and birth.
The first section is the Purpose and Recitals, which contain information about the parties to the contract, including residence, transferring doctor and clinic name and the genetic composition of the embryos and of course the “purpose” of the contract: for the surrogate to carry the commissioning parent(s) child. If a matching program or agency was involved you will also want to include this information.
If there is applicable law used in the contract, it will also be included in this section. Keep in mind that some states may have more than one statute and/or case law that is applicable.
A key component of any surrogacy agreement is the Representations and Warranties section where the parties agree that not only the information they have provided to the professionals is true and complete, but that they have not omitted any information that is material to the surrogacy arrangement. Other sections can be included here including car insurance if the carrier drives herself to her appointments and any criminal activity.
Of course you will want to include a section where the gestational carrier and her spouse, if any, relinquish any rights they may have to the child and the intended parent(s) formalizing their parental rights. Typically the parties are required to start the court process at a certain point in the pregnancy to the benefit of all parties.
While not a comfortable section for the parents and carrier, a section handling the death of the intended parent(s) as well as divorce and separation needs to be included so the carrier and child are protected during the remainder of the pregnancy.
The medical evaluation of the parties is a condition to the performance of the contract and will be included in any well-crafted surrogacy agreement. All gestational carriers should undergo a psychological examination even if they are carrying for a friend or family member. It is also recommended that intended parent(s) meet with a psychologists and in fact, some state statues require it.
The medical instructions, including the embryo transfer procedure and conduct during pregnancy will need to be carefully drafted to ensure that the parties understand their duties under these sections, paying close attention to include that the parties shall seek medical advice at critical points during the process.
With the advent of pre-genetic diagnostic screening (PGS), there has been a reduction in surrogates undergoing prenatal diagnostic screening; however, this section should still be included, as PGS and/or PGD cannot test for every condition.
Fetal reduction and abortion needs to addressed and crafted with much care so that the prospective parent(s) and surrogate understand their responsibilities, rights and duties. A well-drafted section on fetal reduction and abortion can help the parties handle a highly emotional and tense situation.
The contract also needs to provide for a medical emergency, including placing the carrier on life support, including when to contact the attending physician, intended parent(s) or any secondary contact person and the carrier’s agent.
Parentage determination will also be addressed in the contract, as there are a multitude of situations that require testing, including obtaining parentage in the state where the carrier gives birth or a requirement of the parent(s) home country. Some parent(s) require it for peace of mind as well as for surety that the carrier complied with the physician’s instructions regarding sexual relations.
If the surrogate receives a difference of medical policies or opinion or there has been a request for bed rest or a cesarean section then this section will address how they are handled.
Where the child is delivered and who will or will not be in the room with the carrier will be covered in this section, as well as the ability of the parents to make all medical decision regarding their child. Typically covered in this section is when the surrogate needs to restrict her travel and the distance she can travel.
The surrender of custody upon birth and contact after birth should include the steps to take at the hospital while the carrier and child are there as well as any forms the carrier must sign. Contact is typically handled by mutual consent; however, the importance for the gestational carrier and her family to say good-bye to the child should be addressed.
Any change in circumstance, including home address, job or health insurance change needs to include in a well-drafted surrogacy agreement, as well as the timeframe for providing proper notice and to whom.
How the payments and expenses are to be handled, which is a critical component of the surrogacy arrangement, including who handles the trust or escrow account must be included in this section.
While the parties involved in the surrogacy process hope for a perfectly normal child free from any genetic or congenital abnormalities, that is not guaranteed so the risk will be detailed here as well as the medical and psychological risk the surrogate assumes during the process.
What the parties intend during the term of the agreement should be an included section, as well as confidentiality, not only during the term of the agreement, but after the child is born.
It’s important for any contract to have a termination section, and a gestational parenting agreement is not different. This section needs to detail under what circumstances the contract will terminate so the parties are not bound to each other longer than necessary.
Just like the termination section, a contract should contain a material breach section explaining what happens if one of the parties is in breach and if a breach is curable the time frame and notice to handle such a breach.
Other terms and sections to include are: enforceability; conditions to performance; construction; governing law; counterparts; amendment; representation by separate counsel; conflict waiver; notice; taxes; immigration; attorneys’ fees; integration; jurisdiction and venue; survival; agency, partnership, employment or joint venture; heirs and assigns; further assurances; and severability.
Some jurisdictions require the contract to be notarized or witnessed so whatever the requirements are of the state law that is used in the contract, careful attention will need to paid to ensure compliance with the signature page.