Advancements in assisted reproductive technology have created new possibilities. Those unable to carry a child to birth do not have to give up hope. With the help of gestational carriers — selfless souls wanting to help others become parents — over a hundred thousand people have experienced this unique start to parenthood.

Surrogacy arrangements naturally subject all parties to legal risk. Experienced counsel will strengthen legal protections and help anticipate and smooth the bumps in the road.  Whether you are working with a matching program or without, there are at least two critical legal parts to your surrogacy journey.

1. The Contract. Also known as the Gestational Carrier Agreement.

Timing. Prior to a gestational carrier starting medication for an embryo transfer all parties will need to enter into a contract — generally known as the gestational carrier agreement -- to clarify the terms of the agreement. Like many contracts, this one will contemplate many worst case scenarios that, while unlikely to occur, are best to have a plan in place.

Topics To Be Covered. The contract will establish an agreement as to essential understandings of the arrangement -- the gestational carrier's anticipated pregnancy is to carry a child for the intended parent(s) and not for the gestational carrier to raise the expected child as her own. The contract will make it clear that the gestational carrier will not be subject to any responsibility, financial or otherwise, for the child after birth.

The contract will also cover expectations, logistics, costs, expenses, and reimbursements, as well as establishing a plan for some worst-case scenarios. The contract will answer questions like: How will medical appointments work? What are the intended parents' financial responsibilities and how will they be handled? How many embryos are the parties agreeing to be transferred in a single embryo transfer procedure? How will medical information be handled? Who can be present at the delivery or appointments?  If gestational carrier needs to miss work as part of the pregnancy or bedrest, what are the parties' expectations and understandings.  The contract will establish answers to these questions as well as many others.

We offer a questionnaire of basic gestational carrier agreement items that can be helpful in thinking through some of these items early on, especially if you are considering an independent gestational carrier arrangement without the support of a matching program or agency. This include considerations over:

• understandings regarding parental rights and responsibilities

• expectations re medical procedures, including number of embryos to be transferred

• health insurance coverage and medical costs

• plans if health insurance coverage changes during the pregnancy-reimbursements for gestational carrier’s expenses during the process-compensation to the gestational carrier

• understandings between the parties as to termination of the pregnancy-ability for parties to terminate arrangement

• gestational carrier restrictions as to food and activities

• travel restrictions

• expectations around the delivery

• breastfeeding/pumping-among many others!

Do not hesitate to reach out to receive a copy of the questionnaire.  Or schedule a free consult.

Parties To The Contract. The parties to the contract will include the intended parents or both intended parents if there are two, as well as the gestational carrier and her spouse, if applicable.  If the gestational carrier is not married but has a partner, the partner may need to be a party to the agreement.

Independent Counsel. Many of the states we are licensed in require that the intended parent(s) and gestational carrier have independent legal counsel. However, it is standard procedure and a best practice for both sides to retain their own attorneys even in states that do not require independent counsel by law.

Legal Fees. It is customary in a surrogacy arrangement for the intended parents to be financially responsible for both their own legal expenses as well as those of the gestational carrier.  Our firm, as well as most attorneys specializing in this area of law, charge set flat fees for the legal representation. We welcome questions throughout the process and never want you to worry about being billed in order to have your questions fully answered. The flat fee also allows you to have clear expectations as to legal costs, without any unpredictability or surprise charges. It’s nice to have predictability and certainty in at least one aspect of this journey!

2. Pre-Birth Parentage Order (PBO)

Another key legal process in a gestational surrogacy arrangement is the legal petition to have the intended parents recognized as the legal parents of their child.

The law presumes that a woman who gives birth to a child is a legal parent of that child and her spouse another legal parent of the child. Of course, with gestational surrogacy that is not the intention of the gestational carrier, her spouse, nor the intended parents. The presumption can be corrected through a judicial process to receive a court order clarifying that intended parents are the legal parents of the child and the gestational carrier and her spouse, if applicable, do not have any responsibility for the child.

Although the process varies state to state and sometimes even county to county, our experienced counsel will help you navigate this step of the process.

Birth Certificate. Once issued, the order confirming legal parentage will be given to the hospital to enable intended parents, upon the child’s birth, to have parental recognition and everything that goes along with it – making decisions as to their newborn’s health and taking their child home with them upon discharge. Intended parents’ names will go directly on the child’s birth certificate.  Gestational Carrier will not be named on the birth certificate, nor will she be able responsible for any decisions for the child or have any financial or other responsibilities for the child. She will be able to focus on her own recovery, and that amazing feeling that comes from knowing you have done something to truly help others and make the world a better place.

The firm is never able to represent both the gestational carrier and the intended parent(s) in the same surrogacy arrangement. Independent counsel for all parties is an important element of the arrangement. We are always happy to recommend other attorneys skilled in this area who can provide professional representation to the other parties.