Choosing to become a gestational carrier is a life-changing decision. It takes strength, heart, and a deep commitment to helping build families through gestational surrogacy. But just as important as the medical and emotional journey is understanding the legal side, including the surrogacy contract that protects everyone involved.
A surrogacy contract, often referred to as a gestational carrier contract or gestational surrogacy agreement, outlines the legal aspects of the surrogacy process. It is a vital document that ensures your rights, responsibilities, compensation, and medical care are clearly defined before pregnancy begins. In this guide, you’ll learn what to expect in a surrogacy agreement, how it protects you as the gestational carrier, what state laws may require, and what each clause means for your journey.
What Is a Surrogacy Contract?
Defining the Legal Agreement
A surrogacy contract is a legally binding agreement between a gestational surrogate and the other parties involved in the surrogacy process. Also known as a gestational carrier agreement or gestational carrier contract, it lays the foundation for the legal process by establishing how the pregnancy will be handled, what compensation will be provided, how medical decisions will be made, and who will be recognized as the legal parents of the child conceived through assisted reproduction.
Gestational surrogacy ensures that the gestational surrogate is not the genetic mother and will not be listed as the legal mother on the child’s birth certificate. This legal agreement ensures that you, as the carrier, are not held responsible for parental rights and do not retain any legal parentage over the child delivered.
Why the Agreement Matters
This agreement is not just a formality, it’s a critical part that secures your well-being throughout the surrogacy process. It clearly defines everything from compensation to health insurance, medical procedures, life support provisions if any, and the handling of vital records, including the child’s birth certificate. The surrogacy contract ensures everyone is on the same page long before any medical steps begin.
What Should Be Included in a Gestational Carrier Agreement?
Compensation and Covered Expenses
A central part of the surrogacy contract is the financial section, which outlines exactly what you will be compensated for and how those payments will be handled. This typically includes:
- Base compensation paid in installments throughout the pregnancy
- Milestone payments tied to specific phases like embryo transfer, confirmation of heartbeat, or delivery
- Reimbursement for maternity clothes, travel expenses, lost wages, and child care
- Medical expenses not covered by your health insurance
- Establishment of an escrow account to ensure timely and secure payments
The use of an escrow account, which holds and distributes funds, ensures you are paid fairly and on time according to the legal agreement.
Medical Procedures and Medical Decisions
The surrogacy contract will provide a detailed overview of the medical procedures required. These include embryo transfer, prenatal testing, ultrasound monitoring, and medication schedules. It also outlines who makes medical decisions and under what circumstances. For instance, in the event of complications, selective reduction or fetal reduction, or multiple pregnancy, the agreement must state how medical care will be coordinated and what options are available, if any.
It may also detail how many embryos may be transferred, how long support will be provided after the child’s birth, and what health protocols will be followed throughout the process. It’s critical that the medical instructions included in the agreement are reviewed with your physician and your legal representation to ensure you are fully informed.
Legal Rights and Parental Responsibility
One of the most important purposes of the gestational carrier contract is to define legal parentage. The agreement ensures that the parties intended to raise the child are the legal parents and will be named on the child’s birth certificate. You, as the gestational carrier, will not have parental rights or responsibilities and will not be identified as the legal mother.
This protects you from any future legal obligations regarding the child delivered and removes you from legal parentage in the eyes of the law.
Insurance Coverage and Health Policies
Health insurance is another major component of the surrogacy contract. The agreement should specify whether your current health insurance covers maternity and surrogacy-related medical expenses. If it does not, a supplemental or surrogacy-specific health policy will be purchased.
Details about what types of medical care are covered, whether life insurance is included, and who handles billing should all be clearly written in the agreement. Insurance coverage ensures that you are not financially responsible for any unexpected or routine health-related costs during the pregnancy.
Escrow and Payment Logistics
All payments, including compensation and reimbursements, are usually managed through an escrow account. This neutral third-party account ensures funds are distributed according to the timeline outlined in your surrogacy agreement. The escrow provider typically tracks:
- Monthly payments
- Coverage of medical expenses
- Payments for maternity clothes, travel expenses, or breast milk storage if agreed upon
The use of an escrow account adds a layer of financial transparency and security throughout the process.
Governing Law and State-Specific Surrogacy Law
Surrogacy contracts must align with the governing law of the state where the surrogacy takes place. Each state has its own surrogacy law, and not all states recognize or enforce surrogacy agreements in the same way.
States like California, Connecticut, Nevada, New York, Illinois, and New Hampshire are considered surrogacy-friendly, where gestational carrier contracts are legally enforceable. These states typically allow for pre birth orders that establish legal parentage before the child’s birth.
Other states may have restrictions or gray areas, which is why it is essential to work with a surrogacy agency that understands the legal landscape and ensures your contract complies with the correct state laws. Additionally, if you are a gestational carrier from a different home country, it is important to understand how your home country’s laws might affect the surrogacy process and legal recognition.
The Legal Process of Drafting a Surrogacy Agreement
Independent Legal Representation
To protect your rights, you are required to have your own legal counsel who is separate from any other party. This ensures the legal agreement fully reflects your interests and complies with the governing law of your state. Legal fees for your attorney are not your responsibility and are covered through the surrogacy process.
Your attorney will explain every clause of the surrogacy agreement, including your compensation, medical decisions, insurance coverage, and legal parentage issues. Having legal representation also ensures that if court action is ever required, you are protected and properly represented.
Court Validation and Birth Order
In some states, especially those with defined surrogacy law, the contract must be validated in court before any medical procedures occur. This may involve filing for a pre birth order to confirm legal parentage and clarify that your name will not appear on the birth certificate.
This legal process ensures a smooth experience once the child is delivered, with the child’s birth certificate reflecting accurate information without delays or confusion in vital records.
Frequently Asked Surrogacy Contracts for Gestational Carriers Questions
What is the difference between a gestational carrier agreement and a traditional surrogacy contract?
A gestational carrier agreement is used when the carrier is not genetically related to the child. Traditional surrogacy involves a genetic connection, where the surrogate may be the genetic mother. Made in the USA Surrogacy only supports gestational surrogacy and does not offer or facilitate traditional surrogacy.
Do I pay for legal fees during the contract process?
No, your legal representation is covered as part of the surrogacy arrangement. Legal fees are paid through the surrogacy agency or parties involved.
What happens if I change my mind before embryo transfer?
In many agreements, either one party may withdraw from the arrangement before embryo transfer. This is handled through the contract and does not carry penalties, as long as no medical procedures have started.
Will my name appear on the child’s birth certificate?
No, the surrogacy contract and any applicable court action or pre birth order ensure that the appropriate legal parents are listed on the child’s birth certificate. You will not be named as the legal mother or have parental rights.
What if complications arise during pregnancy?
The surrogacy agreement should include protocols for situations such as multiple pregnancy, fetal reduction, or life support decisions. All medical decisions will follow the plan laid out in the contract and reviewed by your legal team. In cases where the parties agree to selectively reduce the pregnancy, the contract will specify how this will be managed, respecting the wishes and health of all involved.
Your Role as a Gestational Carrier
As a gestational carrier, your decision to participate in the surrogacy process is nothing short of remarkable. The legal aspects of this journey are just as important as the medical ones. A well-crafted surrogacy contract protects your health, your financial stability, and your legal rights from start to finish.
Understanding your gestational carrier agreement, being aware of the medical procedures involved, and staying informed on your state’s surrogacy law will help you feel confident and supported every step of the way. From escrow accounts to birth orders, from insurance coverage to compensation structure, every section of your surrogacy contract is designed to ensure you are valued, heard, and protected.
At Made in the USA Surrogacy, we guide you through the entire legal process with care, clarity, and a commitment to doing what’s right for you. You’re never alone, our team walks with you every step of the way to make sure your experience is ethical, transparent, and empowering.
