Legal Aspects of Domestic Gestational Carrier Agreements

Gestational carriers are providing a priceless gift to an intended parent who has worked hard and suffered tremendously in a quest to create a family of his or her own. Against this backdrop, how do we protect everyone in this type of arrangement? First and foremost, the parties must enter into a gestational carrier contract.

A gestational carrier contract is an agreement between intended parents and a gestational carrier and her partner/spouse, if any. These contracts can be compensated or uncompensated and are intended to detail the parties’ rights, obligations, intentions, and expectations in connection with their arrangement.

The contract addresses subjects such as

• parental rights
• custody issues
• location of delivery
• future contact between the parties
• insurance (both health and life).
• control over medical decisions during the pregnancy
• payment of medical bills, liability for medical complications
• availability of medical history and personal medical information on the gestational carrier,
• intended parents’ presence during doctor’s visits and at the delivery.
• Financial considerations such as the gestational carrier’s compensation and expenses, including lost wages
• legal fees
• any necessary child care during appointments
• and maternity clothes, are also addressed in the contract.

Both the intended parents and the gestational carrier must be represented by an attorney throughout the negotiation process of this contract. This is to ensure that all parties have a clear understanding of their rights and that they understand their responsibility to the other parties.

All negotiations will be handled between the attorneys, until the parties agree to terms of the contract. The attorneys are typically compensated by the intended parents (including the gestational carriers’ attorney). It is true that you may never need to review the details of your contract, but if there is ever any question, you know that you have the contract in place to protect all parties.

The intended parents’ insurance policy as well the gestational carriers should be reviewed so coverage can be assessed and no one is left holding medical bills that they cannot afford and/or did not anticipate.

It is also recommended that the services of an escrow agent be obtained, so that the expenses and fees can be paid directly from a third party. This keeps the relationship between the intended parents and the gestational carrier about the wonderful journey they are embarking on together, rather than on the money.

Intended parents who use the services of a gestational carrier must obtain a court order determining legal parentage for the child. The order directs the hospital where the child is born and/or the appropriate state department of vital records to place the intended parents’ names on the birth certificate of the child delivered by the gestational carrier.

The process of obtaining a birth order should begin once a gestational carrier has completed the first trimester of the pregnancy. This is to ensure that there is enough time to obtain a birth order prior to the child’s birth. If intended parents do not obtain an order, in most cases, one or both intended parents will be required to adopt their child. Also, in the absence of an order, the gestational carrier’s name may be placed on the birth certificate as the parent of the child when born.

If a contract is in place, the carrier’s insurance is properly vetted, there is an escrow account in place, and a pre-birth order declaring parentage is obtained then all parties will be protected in the arrangement. Intended parents should be aware that there are reproductive law firms/agencies that not only recruit gestational carriers and match them with intended parents, but also review insurance and manage escrow accounts, so that intended parents and their gestational carrier can focus on building a trusting relationship and bringing a new child into the world.