If you're considering surrogacy — whether as Intended Parents or as a Gestational Carrier — you may already know by now that your match should go through several levels of clearances, each of which is critical to making for a successful surrogacy arrangement. Those include medical clearance, psychological clearance, legal clearance, financial clearance, as well as insurance clearance. In this post, we’re focusing on legal clearance. If you’re looking to become a surrogate you can read more about surrogate qualifications here. For Intended Parents looking to understand more about the legal process before getting started you can read more here.
One of the most important steps in the surrogacy process is creating a contract, referred to as the Gestational Carrier Agreement. This legal contract outlines everyone’s rights, responsibilities, and expectations, helping to protect the well-being of all involved. While it may seem overwhelming at first, the contract is a roadmap for a safe and respectful journey.
Legal clearance means that the Intended Parents and the Gestational Carrier (and her spouse or live-in partner) have entered into a written surrogacy contract after legal drafting, negotiation, finalization, and signing, all while each party is represented by a fertility attorney guiding them along the way. This is a critical step which sets the foundation of the relationship between the parties prior to the Gestational Carrier starting any cycling medication in preparation for an embryo transfer procedure. The contract is intended to protect the Gestational Carrier, Intended Parents, and the intentions of the contract.
To start the legal phase, the Intended Parents on the one hand, and the Gestational Carrier (and her spouse or partner, if applicable) on the other hand, will be represented by separate, independent legal counsel. Typically, the Intended Parents’ attorney will be the drafting attorney who prepares the initial version of the contract. The drafting attorney will do a thorough evaluation of critical factors of the case, a few examples of which include: where the Intended Parents reside, where the Gestational Carrier resides, where the embryo transfer procedure will take place, where the birth will occur, and what kind of medical insurance will be used. With these baseline factors in mind, the attorneys will determine which state laws apply to the arrangement, and prepare the first version of the contract.
The parties will review the contract with their attorneys and will discuss its terms in detail to ensure that all parties understand the terms and have had a chance to clarify any terms or questions they may have. Should the parties wish to revise terms of the agreement, those will be discussed and negotiated between the attorneys, often with support from the agency as well. When all parties have ultimately agreed to final terms of the surrogacy contract, they will proceed with signing the contract in the presence of a notary and will provide the signed contract to their attorneys. The attorneys will confirm all was properly executed, and then provide a legal clearance letter to the agency and clinic, confirming that the parties are now in contract and free to proceed with the medical protocol.
There are several terms that must be in all surrogacy contracts. Some are more obvious, such as: identity of the Gestational Carrier, her spouse/partner if any, the Intended Parents, the Agency, the clinic, and the IVF Physician who will perform the embryo transfer procedure. It will also clearly state the parentage intentions of the arrangement - specifically stating that this is intended as a gestational surrogacy arrangement in which the Intended Parents are to be the sole and exclusive legally recognized parents, and whereby any presumption of parentage for the Gestational Carrier and/or her spouse/partner are completely rebutted ensuring that the Gestational Carrier does not have any parental responsibilities to the child. The contract will designate which U.S. state’s laws the parties are operating under in the contract, ensure that it complies with such laws and is fully enforceable, and will designate where parental establishment will be sought once a pregnancy is achieved.
The contract will also have the parties confirming that all information provided to the Agency, Clinic, IVF Physician, and to each other, has been true, correct, and complete, so that the Parties can feel at ease with their decision to work together. A well-drafted agreement will always make clear that the Parties’ choice to move forward together is voluntary and is well-informed.
One main theme in the surrogacy contract is medical instructions. The contract will set out that medical instructions will be given and that the parties agree to follow the advice of the then-treating physician – that is the IVF Physician in the period leading up to pregnancy confirmation and completion of the first trimester of pregnancy, and thereafter the Obstetrician local to Gestational Carrier. Medical instructions will include things like taking medication, supplements, vitamins, injections, regular visits in person with the clinic, labs, ultrasounds, testing, screenings, certain conduct/lifestyle restrictions such as reasonable limitations on diet, caffeine, and other activities which may pose a medical risk during pregnancy.
Another important theme in a surrogacy contract is communication. A successful surrogacy journey requires transparency between the parties, clinic, and agency. The parties will agree to be in regular communication, be responsive to each other and to the clinic and agency, to give updates after medical appointments, and to keep everyone informed as to factors which may arise during the journey that may impact the arrangement. The contract will capture the parties’ plans for who will be present during medical appointments, giving Intended Parents an option to attend remotely via phone/video conference if they cannot attend in person and if permitted by the physician. It will also address who will be present during labor and delivery, and will confirm the parties’ intentions for contact post-birth, including a visit between the new parents, their child, and the Gestational Carrier for a momentous full-circle moment to culminate the journey.
The contract should also specify what the parties’ preferences are for embryo transfer decisions such as how many embryos to transfer (usually just one), as well as preferences for medical decisions such as screenings during pregnancy, diagnostic testing, conduct during pregnancy, preferences in the event of a multiple gestation, travel, vaccine preferences, and access to medical records.
The Gestational Carrier Agreement should also identify which medical insurance plan will be used to cover the Gestational Carrier’s medical care after she is released from the IVF Physician, and should confirm that the policy has been reviewed and approved for use in surrogacy. While the Gestational Carrier is under the care of the fertility doctor in the pre-transfer period and in the period leading up to the first trimester of pregnancy, her medical care will not be billed to insurance. Once she graduates from the care of the IVF physician, generally her care will then become billable to her medical insurance policy as pregnancy care. However, it must first be determined that her insurance policy is appropriate for use in a surrogacy arrangement, as unfortunately, some medical insurance policies simply do not provide coverage for a surrogate pregnancy. The insurance policy will be thoroughly vetted by an insurance broker which will review the policy in detail and confirm via written report whether or not the insurance is approved for use in surrogacy. The insurance review will also address any potential applicable limitations to such coverage, such as for example a potential requirement for reimbursement to the insurer.
The contract will specify that the medical insurance policy has been reviewed, and what the findings were, as well as inform the parties of the options for purchasing secondary/backup policies. The contract will also require that the Gestational Carrier is treated by in-network physicians and ensure that the care is billed through her insurance prior to requiring reimbursement for co-pays and deductibles. For Intended Parents in the U.S. with medical insurance in the U.S., it may also be possible to arrange for birth in a hospital which is also within the Intended Parents’ insurance network to assist with coverage of the child's medical bills post-birth.
The contract will also address the potential scenarios for changes of insurance during the journey, whether those arise from a change of employment (if it was an employment-based insurance policy), as well as potential changes of coverage by the insurer.
While insurance is ever changing, the contract should be clear and provide a roadmap for how medical bills will be covered, regardless of what situation should arise, giving the Parties peace of mind to proceed.
As discussed above, the contract will address that medical instructions will be provided throughout the journey and address how those medical decisions should be made. The parties will be reminded of their right and obligation to consult with the appropriate medical professionals prior to undergoing any medical procedure so that they can proceed informed. Most surrogacy contracts will also provide the opportunity for all parties to seek a second medical opinion. The parties will be reminded in the contract that there are potential medical risks that can arise in a surrogacy arrangement, and they will be given the opportunity to speak directly with the appropriate professionals to understand the potential risks.
Another extremely important aspect of a safe and ethical surrogacy arrangement requires the use of an independent escrow account or attorney trust account to hold the funds that will be estimated to be needed for that particular surrogacy arrangement. A cost estimate is generated for the particular surrogacy match, and those estimated funds are deposited into the escrow account prior to the Gestational Carrier proceeding with cycling medication in anticipation of an embryo transfer procedure. This is to protect all parties and to ensure that adequate funds are available to cover the anticipated expenses and payment terms. The surrogacy contract will confirm this arrangement and address the necessary timing of the funding, the minimum balance required, the requirement to add additional funds as necessary in a timely manner, as well as the duration that the account must remain funded after birth.
The surrogacy contract will also confirm all financial expectations and obligations. While compensation packages may vary from case to case and over time, the financial terms typically fall under three main categories: First is the pregnancy payment, which is the amount paid to the gestational carrier for her time, effort, risk, and inconvenience of carrying the pregnancy. This amount is earned in monthly installments starting after the pregnancy is confirmed by heartbeat confirmation.
The second main category is expense reimbursements. This can include a monthly expense allowance, maternity clothing, legal fees, mileage reimbursements, childcare expenses, housekeeping assistance, travel expenses, and counseling expenses. This will also address medical expenses such as premiums, copays, and deductibles, as well as the cost of a life insurance policy or accidental death policy, to cover the Gestational Carrier.
The third overarching category covers compensated events such as the start of cycling medication, completing an embryo transfer procedure, multiple gestation, miscarriage, cesarean birth as opposed to vaginal birth, invasive procedures, loss of reproductive organs, lost wages, and provision of pumped breast milk, if agreed between the parties.
As you can see, one of the very important goals of the surrogacy contract is to address all of the financial obligations at the outset so that there are no surprises throughout the surrogacy journey.
You’ve made it this far and should feel well-informed by this point. If it overwhelms you, especially if this is your first time in a surrogacy arrangement, do not worry. Build your team of professionals who are knowledgeable, trustworthy, ethical, and supportive. They should do the heavy lifting so that you can focus on your journey, whether you are Intended Parents preparing to bring home your baby, or you’re a Gestational Carrier focusing on a healthy journey while you embark on one of the most wonderful things you can do for another person. The surrogacy contract lays the foundation for a respectful, protected, and smooth surrogacy experience.
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