The surrogacy contract, often called a Gestational Carrier Agreement or GCA, is one of the most important parts of a surrogacy journey.
It is much more than paperwork. The agreement explains the responsibilities of the intended parents and gestational surrogate, outlines financial arrangements, documents important pregnancy expectations, and addresses how certain situations will be handled if they arise.
Surrogacy contracts can be lengthy and include unfamiliar legal language. You are not expected to understand everything on your own. Intended parents and gestational surrogates should each have their own attorney experienced in assisted reproduction law. Independent legal counsel helps make sure everyone understands their rights, responsibilities, and the agreement they are entering into.
What Is a Gestational Surrogacy Agreement?
A Gestational Carrier Agreement is a legal contract between the intended parent or parents and the gestational surrogate. Depending on the circumstances and applicable law, a spouse or partner may also be included in the agreement.
The contract establishes the terms of the surrogacy arrangement before pregnancy occurs.
Typically, the intended parents’ attorney prepares the first draft. The surrogate’s independent attorney then reviews the agreement with her, recommends changes when appropriate, and negotiates on her behalf.
Legal requirements vary significantly from state to state. For this reason, the attorneys involved should be familiar with the laws that apply to the particular surrogacy arrangement. ASRM recommends legal consultation for both intended parents and gestational carriers as part of the surrogacy process.
The fertility clinic will generally require confirmation that legal agreements have been completed before beginning the embryo transfer cycle.
Financial Responsibilities and Surrogate Compensation
One of the main purposes of the contract is to clearly establish the financial responsibilities of the intended parents.
The agreement will outline the surrogate’s base compensation as well as additional benefits and reimbursements that may apply throughout the journey.
These can include monthly allowances, maternity clothing, travel, lost wages, childcare, and certain pregnancy-related expenses. The agreement may also include additional compensation for circumstances such as a cesarean delivery, multiple pregnancy, invasive medical procedures, or physician-ordered bed rest.
The contract should also explain when payments are due and how expenses will be reimbursed.
Surrogate compensation and expenses are generally managed through an independent escrow account. This creates a clear system for making payments according to the terms of the agreement rather than requiring intended parents and their surrogate to manage payments directly between themselves.
Having these financial expectations documented before the pregnancy begins can help prevent misunderstandings later.
Medical Care and Pregnancy Expectations
Surrogacy agreements also address expectations surrounding medical care during the pregnancy.
The contract may include provisions related to prenatal appointments, medications, following medical recommendations, travel during pregnancy, and certain lifestyle expectations. These terms are discussed before signing so everyone understands what is expected during the journey.
However, a surrogacy contract does not give intended parents control over the surrogate’s medical decisions.
The gestational surrogate remains the patient and retains the right to make informed decisions about her own medical care. ASRM’s ethical guidance specifically recognizes that gestational carriers provide consent for their medical care throughout embryo transfer, pregnancy, labor, delivery, and postpartum care.
The goal of the agreement is to document shared expectations while respecting the surrogate’s medical autonomy.
Prenatal Testing and Difficult Medical Decisions
Some of the most important conversations in surrogacy happen before anyone signs a contract.
Intended parents and surrogates should discuss their views on prenatal testing, pregnancy complications, fetal abnormalities, selective reduction, pregnancy termination, and circumstances in which the surrogate’s health could be at risk.
These subjects can be uncomfortable, but waiting until a difficult situation occurs makes them much harder to navigate.
The legal agreement records the parties’ expectations and explains how certain situations should be approached. The attorneys can also help everyone understand how applicable state laws may affect those provisions.
Because the surrogate remains responsible for consenting to her own medical treatment, the goal is not to predict or control every possible medical decision. It is to make sure the intended parents and surrogate have discussed these possibilities and are well aligned before moving forward.
Communication and Privacy During Pregnancy
Surrogacy is both a professional process and a personal relationship. The agreement may include expectations regarding communication and privacy throughout the journey.
For example, intended parents and surrogates may discuss how frequently they would like to communicate, whether intended parents hope to attend appointments, how pregnancy updates will be shared, and what everyone is comfortable posting on social media.
The contract may also address confidentiality and the sharing of personal or medical information.
Ideally, these terms should reflect conversations that already took place during the matching process. The legal stage should confirm expectations rather than reveal major differences that were never previously discussed.
Labor Delivery and Hospital Planning
The agreement may also address expectations surrounding labor and delivery.
This can include communication when labor begins, whether the intended parents hope to be present for the birth, and plans for the baby immediately after delivery.
A hospital birth plan is usually developed separately as the pregnancy progresses. The surrogacy agency, attorneys, hospital staff, and other professionals may work together before delivery to make sure the hospital understands the surrogacy arrangement and any applicable legal documents.
Medical decisions during labor and delivery remain between the surrogate and her healthcare providers. The contract and birth plan help everyone prepare, but actual medical care must respond to what is happening at the time.
The Surrogacy Contract and Legal Parentage
The Gestational Carrier Agreement and the legal parentage process are related, but they are not necessarily the same legal step.
The contract establishes the terms of the surrogacy arrangement. Establishing the intended parents’ legal parentage may require additional legal documents or court proceedings.
Depending on the state and circumstances of the journey, attorneys may pursue parentage orders before or after birth. Surrogacy and parentage laws differ considerably across the United States, which is why the appropriate process must be determined by an attorney familiar with the applicable jurisdiction.
This can be particularly important in journeys involving donor eggs or sperm, LGBTQ+ intended parents, single parents, or international intended parents.
Planning for Unexpected Situations
A good surrogacy contract also addresses situations everyone hopes will never occur.
This may include pregnancy loss, additional embryo transfers, pregnancy complications, bed rest, missed work, unexpected medical procedures, insurance changes, or extended hospitalization.
The agreement can establish financial responsibilities and other expectations for these circumstances before they happen.
No contract can predict every possible situation. However, discussing potential complications during the legal process gives everyone a clearer starting point if something unexpected occurs.
Never Sign a Surrogacy Contract You Do Not Understand
You should understand what you are agreeing to before signing any surrogacy contract.
Your attorney should review the agreement with you, explain unfamiliar terms, answer your questions, and discuss both your rights and your responsibilities.
Do not hesitate to ask why a provision is included or what could happen under a particular scenario. Legal review should give you greater clarity about your journey, not leave you more confused.
A surrogacy agency can help coordinate the legal stage, track deadlines, and communicate with the professionals involved. However, your agency does not replace your independent attorney or provide legal advice.
How Simple Steps Fertility Supports the Legal Process
At Simple Steps Fertility, we help keep the different pieces of your surrogacy journey connected.
During the legal stage, our team coordinates with the intended parents, gestational surrogate, attorneys, fertility clinic, escrow provider, and other professionals involved in the journey. We help track important milestones and make sure everyone knows when the next step can begin.
Our role is to make the process easier to understand and help keep your journey moving while your attorneys provide the independent legal guidance you need.
Contact Simple Steps Fertility to learn more about the surrogacy process and what to expect during matching, legal contracts, embryo transfer, pregnancy, and delivery.