A Brief Overview of Gestational Surrogacy Agreements

For many individuals and couples, becoming parents is a cherished dream. Some of these people, however, are unable to see it come true without assistance. Individuals, same-sex couples, and heterosexual couples experiencing fertility challenges are turning to Assisted Reproductive Technologies (ARTs) such as gestational surrogacy to support their goal of building a family.

What is Gestational Surrogacy?

Gestational surrogacy is one ART that continues to grow in popularity. A surrogate agrees to be impregnated using the process of in vitro fertilization, in which an egg and sperm from the intended parents or donors are combined and the embryo implanted into her body.

Unlike traditional surrogacies, the baby is not genetically related to the surrogate, although he or she may be related to one or both of the prospective parents.

Gestational Surrogacy Agreements Explained

The surrogate and the parents enter into an agreement that addresses essential terms such as type and amount of compensation, medical expenses, and post-birth parental rights.

California is widely regarded as a surrogacy-friendly state.  In fact, California is one of only a few states that allow intended parents to establish legal parentage rights prior to the child(ren)’s birth.  This can be done without going through formal adoption proceedings.

The gestational surrogacy contract is a legal blueprint for the entire process. It clearly specifies each party’s role, rights, and responsibilities and protects everyone involved by limiting the likelihood of miscommunications, misunderstandings, or disputes.

Each agreement should be a collaborative effort between the surrogate, the intended parents, and their respective attorneys. In general, it should include the following elements:

  • Parental rights
  • Base compensation for the surrogate
  • Compensation for the surrogate’s lost wages, legal fees, maternity clothes, and related expenses
  • Any additional compensation for going on bedrest, undergoing invasive procedures, etc.
  • Coverage for medical bills
  • Control over medical decisions during the pregnancy
  • Whether the intended parents will be present at medical appointments and the delivery
  • Where the baby will be born
  • Future contact between the parties

It is also recommended that an escrow agent be used to handle the payments for fees and expenses so that the gestational carrier and intended parents can focus on building a trusting relationship and bringing a child into the world instead of worrying about money.

The prospective parents will generally draft the initial agreement with assistance from their attorney and send it to the surrogate and her attorney for review. After making any necessary changes or requests, the surrogate and her attorney will send the revised contract back. Both sides will continue to negotiate until everyone is happy with the terms and ready to sign.

It is important, and required under California law, for the surrogate and intended parents to each be represented by their own attorneys to ensure that the final contract is fair and addresses everyone’s needs and concerns. There are so many variables and “what ifs” involved in gestational surrogacy that both sides should work with experienced surrogacy attorneys who know what belongs in the contract.

Work with an Experienced California Surrogacy Attorney

Whether you’re looking to become a parent via gestational surrogacy or a potential surrogate yourself, Entrust Legal will provide the superior-quality and confidential legal advice and representation that you deserve. We will draft the agreement, thoroughly explain its terms to you and, if you are a prospective mother or father, finalize your parental rights. To speak with surrogacy attorney Christine Pham, please contact us.

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Entrust Legal

Christine focuses her practice on helping families and couples in a range of family law and family formation matters, including child custody and support, spousal support (alimony), dissolution of marriage (divorce), legal separation, division of property, and assisted reproduction.

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