Helping Build Families Since 2012

Why do I need a gestational surrogacy agreement?

A gestational surrogacy agreement (GSA) defines the relationship between a parent and a surrogate in exact legal terms. It outlines all parties’ rights, duties, and obligations to each other, and all of the legal protections of each party throughout the process until and after the birth of any child. In most states we work in, a gestational surrogacy agreement is required by statute, with both parties having independent legal counsel.

Intended parents benefit from knowing that they will retain parental rights, from the moment the gestational surrogacy agreement has been signed. A surrogate benefits from knowing that she is protected from associated medical costs and will receive full monetary compensation in a timely manner.

The agreement also considers total expenses for the intended parents. In particular, we look at insurance reimbursement costs during pregnancy and, potentially, childbirth. If the surrogate does not have adequate insurance, planned parents must obtain a policy on her behalf. Of course, we help to accomplish this safely and affordably.

Essentially, a gestational surrogacy agreement creates a container in which all parties may rest easy, communicate openly and move forward in harmony toward their shared goal: a successful pregnancy, birth and transition home.

Can we simply sign a medical consent form instead?

No. This is a common misunderstanding: that a medical consent form signed by an intended parent and surrogate constitutes a contract. In fact, it only means the IVF clinic will provide services to the patient. It does not meet minimum contract standards, and there is nothing within the agreement that provides for the medical and administrative elements of a surrogacy relationship. Failure to obtain a legitimate surrogacy agreement could make it difficult to obtain a birth certificate in the correct name.

Will Fertility & Surrogacy Legal Group, APC represent my surrogate as well?

Your surrogate will want to secure her own separate legal counsel, to avoid any potential conflicts of interests or impropriety. We can recommend qualified attorneys to her case.

What does the surrogacy agreement usually provide for?

After the reproductive endocrinologist has given the physical and psychological green light for all parties, drafting of the surrogacy agreement begins. While each family may have differing additional details to discuss, here are some common ones to consider:

  • The plan for reimbursement by the intended parents to the surrogate throughout her pregnancy
  • The handling of personal information
  • The location of the birth
  • What will happen if the pregnancy becomes high-risk
  • If carrying multiples will require higher compensation
  • Perspectives on abortion and selective reduction

The first draft is reviewed in detail with the client, ensuring total accuracy and understanding of all components. We typically move through a second draft, working collaboratively until the document is completely suited to the client’s needs. We then send it off to the surrogate’s lawyer. If the surrogate wants anything changed, her lawyer will bring it forward. The lawyers work back and forth on behalf of the clients until everyone is satisfied with the contract. When the final document has been printed and signed, we give the IVF clinic a legal clearance letter permitting them to initiate services.

In some cases, parents and surrogates might meet to discuss the contract directly in the presence of their lawyers.

How long does it usually take to complete a surrogacy agreement?

Our office usually finishes the first draft of the contract within a matter of days. Personalizing the document depends more on the planned parents; if we work diligently, we can get the approved contract over to the surrogate’s attorney in less than a week.

What is the difference between gestational surrogacy and traditional surrogacy?

In a gestational surrogacy, the surrogate is not biologically related to any resulting child. Gestational surrogacy involves eggs (either from the intended mother or a donor) that undergo in vitro fertilization with the intended father’s sperm or donated sperm. The resulting embryos are then transferred into the uterus of the surrogate and are carried to term.

In a traditional surrogacy, the surrogate’s own eggs are used to conceive the child, typically via what is called intrauterine insemination. IVF and an embryo transfer can also be used with a traditional surrogate. In this case, the surrogate is biologically related to the resulting child, but she relinquishes her parental rights.

What is the process of preparing a surrogacy agreement?

  • Retain the legal services of Fertility & Surrogacy Legal Group, APC.
  • We will prepare the first draft of your surrogacy agreement and review the document with you. Our expert attorneys will negotiate the terms of the agreement with the counsel for the gestational surrogate or carrier until a final is reached.
  • Once we obtain the fully executed and notarized agreements from all parties, we will coordinate with your agency and medical team to inform them that the surrogate is legally cleared to commence medications.
  • We also represent gestational carrier or surrogates in surrogacy agreements; the process is very similar.

I do not live in the San Diego area; can I still retain your legal services?

Yes! We work with clients from all over the world every day. Most of our work is done by email, phone/video conferencing, WeChat, Skype, WhatsApp and FedEx/UPS/USPS services. You never need to come to our office, although we are always happy to meet our clients.

I may need translation services. Can Fertility & Surrogacy Legal Group, APC help me with that?

Yes, Fertility & Surrogacy Legal Group, APC has translators on staff and our agreements in templates of the most common languages. We can provide translators in any language needed.