You’ve had your medical work-up, been matched with excited Intended Parents and you are now eagerly awaiting the next step in your surrogacy journey. So, what’s next? Your surrogacy agency and/or fertility clinic will require that you put into place a Gestational Carrier Agreement, also called a Gestational Surrogacy Agreement or Surrogacy Agreement.
Choosing Your Attorney
Both, you, the surrogate, and the Intended Parents, should always be represented by separate legal counsel regardless of whether your surrogacy arrangement is between friends, family, or through an agency. Most fertility clinics won’t proceed without a signed gestational carrier agreement in place first. It is essential for you to have an attorney experienced in assisted reproductive technology (ART) law who can walk you through your surrogacy agreement step-by-step and address any issues or concerns you may have. Surrogacy law is ever changing and can vary widely from state to state, sometimes even county to county, so it is important to choose an attorney who can navigate the complexities of what goes into creating these types of contracts. Each surrogacy agreement is tailored individually for you and the Intended Parents, and it is essential that you understand every provision and/or exclusion in that agreement.
The Contract Review
During the review of your surrogacy agreement, your attorney will go over your contract in detail with you to ensure that you understand every last detail. There are many important aspects of your agreement that need to be considered. Here are just a few:
Your Medical Insurance Policy
If you have been working with an agency, your case manager might have already recommended that the Intended Parents seek an insurance specialist to complete a review of your current insurance policy to see if a surrogate pregnancy is covered. If you are entering into a private surrogacy arrangement, i.e., not using an agency, you may want to have your policy reviewed before finalizing your agreement. Your attorney can recommend a health insurance reviewer to check what aspects of surrogacy, if any, your policy covers. If your current policy is not surrogacy friendly, now is the time to discuss your options with the Intended Parents. They may wish to purchase a specific policy that covers a surrogate pregnancy or purchase another medical insurance policy all together.
If you work outside the home, lost wages are typically reimbursed by the Intended Parents. Should you need to attend doctor appointments, be placed on bed rest, or you require maternity leave post-partum, you will want to consider how much income will need to be replaced. A surrogacy arrangement should not place you in a position of financial hardship.
All parties will need to decide how contact with the child is handled immediately post-delivery and during the child’s life. As the gestational carrier, you have no genetic connection to the child you are carrying and you will be required to relinquish parental and custody rights to the child. Have you and the Intended Parents discussed this? Will they allow you to be a presence in this child’s life or are they requiring no post-birth contact at all? Will the child be told about the surrogate’s involvement in his or her birth? These are all important issues that should be addressed in the agreement to avoid potential future conflict.
Privacy and Confidentiality
We encourage an open and honest relationship. However, during your surrogacy journey, you must not disclose the Intended Parents’ identity to anyone not directly involved with your surrogacy arrangement without the explicit permission. This especially pertains to social media posts, blogs, and other public announcements.
Are you going to provide colostrum and breast milk upon the Intended Parents request? If so, for how long? Will you be compensated? This is a time-consuming and potentially emotional commitment.
Contact During the Pregnancy
As your pregnancy progresses, you will be keeping the Intended Parents informed about your progress. You may have privacy and modesty concerns, however, some Intended Parents may want to be present for your doctor appointments. Consider if you are comfortable with this and make sure your agreement addresses any concerns you may have.
The Intended Parents may live locally, in another state, or in another country. How will you keep in touch with them and give them updates? Will you talk on the phone, Skype, email, text? Will you send pictures? If the Intended Parents live locally, will you get together in person?
Having a comprehensive agreement that both parties fully agree upon will help your surrogacy go smoothly. Whether you are jumping in with both feet as a first-time surrogate or you loved being a surrogate so much in the past that you are giving the gift yet again, your journey should be a joyous experience for both you and the Intended Parents. Choosing an attorney to represent you during this time is one of the most important decisions you will make. An attorney who focuses her practice on ART law makes it a priority to make the process fair and painless for all parties, and will know the intricacies of what needs to be provided in your agreement. At McArthur Law Firm we make sure every surrogate leaves the legal process with an agreement she is happy with, understands completely, and is ready to hand to her fertility clinic with excitement to move forward.