Gestational Carrier Contracts: What to Expect
The Gestational Carrier Contract is an agreement between the intended parents and the gestational carrier and the gestational carrier's spouse (if she is married). The Gestational Carrier Contract, also known as the Gestational Carrier Agreement, should address the legal relationship between the parties, the rights and obligations of the parties, and other sensitive issues as discussed below.
Both the intended parents and the gestational carrier must have independent legal representation throughout the drafting and negotiation of the Gestational Carrier Agreement to ensure all parties are protected and have a complete understanding of their rights and obligations pursuant to the contract terms. The attorneys for both the intended parents and the gestational carrier are generally compensated by the intended parents.
Drafting a Gestational Carrier Contract is detail-intensive. It is of paramount importance that this document be drafted and executed properly, include all necessary terms, and comply with all state and federal laws*, as this Contract will serve as the guide for the entire surrogacy journey. The Gestational Carrier Contract serves as the foundation for ensuring the intended parents become the legal parents, though additional steps are required to secure legal parentage. At some point, intended parents must obtain a court order determining their legal parentage. The process of obtaining a court order declaring legal parentage does not usually begin until the gestational carrier is past the first trimester of pregnancy. The legal process of obtaining a this court order is separate from the drafting and negotiation of the Gestational Carrier Agreement.
When drafting a Gestational Carrier Contract you should always seek the guidance of an attorney specializing in assisted reproductive technology. Your attorney must be licensed in the appropriate state(s), and should be responsive and well-informed regarding assisted reproductive technology law. You should feel comfortable with your attorney as she will be providing you with information and guidance during your surrogacy journey.
Gestational Carrier Agreements: The Process
1 - The gestational carrier meets with her attorney to discuss all terms to be included in the Gestational Carrier Contract, including but not limited to:
number of embryos transferred per IVF cycle;
number of IVF cycles if unsuccessful at first;
willingness to carry multiples;
location of delivery;
parental rights and custody;
payment of medical bills;
liability for complications; and
expenses such as lost wages, maternity clothes, travel, childcare, etc.
2 - The intended parents' attorney drafts the initial Gestational Carrier Contract. The intended parents review this Contract with their attorney and approve it before it is sent to the gestational carrier's attorney.
3 - The gestational carrier's attorney returns the Contract with the requested revisions and edits according to the prior conversation with the gestational carrier. This revised Contract will also address anything the gestational carrier may be uncomfortable with that was not previously discussed.
4 - The intended parents and their attorney review the revised Gestational Carrier Contract. At this point the intended parents may accept all the proposed changes or accept some of the changes and request further revisions regarding others. If further revisions are requested, the intended parents will return the again revised Contract to the gestational carrier's attorney for finalization. Every now and again the attorneys may go back and forth for a period of time, but at this point all essential terms should be decided.
5 - The Gestational Carrier Contract is finalized and ready to be signed by the parties.
6 - All parties sign and execute the Gestational Carrier Contract. The attorneys for each side will then follow up to make sure escrow is fully funded if escrow services are included in the contract. The attorneys for each side may also follow up regarding other items as addressed by the terms of the agreement.
Note: Escrow services allow the payments of expenses and fees made pursuant to the contract terms to come directly from a third party. This enables the relationship between the intended parents and the gestational carrier to remain focused on the pregnancy and not on the aspects of the arrangement that require money to change hands.
7 - Legal clearance is sent to the IVF Clinic. It is only at this point that the gestational carrier may begin IVF medications in preparation for the embryo transfer.
The Gestational Carrier Agreement is an essential element of any gestational carrier arrangement for the purpose of growing a family. It provides legal protection for all parties involved, and also gives a clear roadmap for how the surrogacy journey will progress. Any reputable IVF Clinic will not proceed with an embryo transfer to a gestational carrier without the proper legal agreement in place.
This article contains general information about Oleaga Law, LLC and
surrogacy agreements. Neither this article nor its contents should be construed as legal advice. An attorney-client relationship is not created by viewing this article or this website, nor by sending any communication via this website or directly to Oleaga Law, LLC.
Oleaga Law, LLC and Janene Oleaga, Esq. expressly disclaim all liability from actions or inactions based on the contents of this article.
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