Gestational Carrier Contracts — Key Clauses to Include

A Gestational Carrier Contract (GCC)—sometimes called a Gestational Surrogacy Agreement—is the legally binding document between the intended parents, gestational carrier (GC), and her partner/spouse (if applicable). It defines rights, responsibilities, medical expectations, compensation structure, decision-making, and parentage pathways.

This is the contract that prevents misunderstandings, ensures everyone is protected, and lays the groundwork for smooth medical and legal steps—especially in a state-by-state system where surrogacy rules vary significantly.

It affects:

• When and how the parentage order is filed
• Which decisions the GC can make vs the intended parents
• How hospitals handle delivery day
• Insurance billing and financial planning
• Emergency scenarios and worst-case protections
• Timeline predictability for international parents

Your upstream choices—where the surrogate lives, her insurance, your embryo source, and your state’s laws—shape which clauses must be included.

Who It Helps

Ideal for Intended Parents Who Want:

• Predictable legal outcomes
• Clear rights at birth
• Full transparency about compensation and expenses
• Smooth coordination between agency, lawyers, and clinic
• Protection in case of medical complications

Ideal for Gestational Carriers Who Want:

• Safety, clarity, and respect
• Defined expectations for lifestyle, communication, and boundaries
• Security around medical care and lost wage protection

When to Choose a Different Path (or Add Extra Legal Steps):

• Surrogate lives near a border with restrictive states
• Insurance excludes surrogacy-related maternity care
• Parents using donor embryos requiring additional legal paperwork
• Single or LGBTQ+ parents in states with nuanced parentage rules

Step-by-Step (With Timing Checkpoints)

1. Legal Intake (Before Match)

Identify required clauses based on state law.
Checkpoint: Confirm whether you need a pre-birth order, post-birth order, or confirmatory adoption.

2. Drafting & Negotiation (2–4 weeks)

Attorneys for GC and intended parents create and refine the contract.
Checkpoint: Medical expectations, compensation, travel, insurance, and lifestyle requirements clearly defined.

3. Finalization & Notarization (Before Med Clearance)

Contract must be signed before the clinic issues medical clearance.
Checkpoint: Ensure escrow is funded before medication starts.

4. Pregnancy Milestones (Weeks 12–20)

Legal team initiates parentage steps (PBO or post-birth order prep).
Checkpoint: Hospital receives delivery plan.

5. Delivery & Legal Completion (Birth → 6 weeks)

Contract guides hospital protocol, birth decisions, and postpartum reimbursements.
Checkpoint: Birth certificate issued + any final court steps completed.

Key Clauses to Include

1. Medical Decision-Making & Authority

• Who makes decisions during pregnancy, labor, NICU situations
• Emergency C-section protocols
• GC autonomy regarding her own health
• Required vs optional tests (NIPT, amnio, fetal echo)

2. Parentage & Legal Intent

• Pre-birth or post-birth order steps
• Naming intended parents on the birth certificate
• Court jurisdiction (county-specific)
• Steps if birth occurs across a state border

3. Compensation & Reimbursements

• Base compensation
• Milestone payments
• Lost wages
• Childcare, housekeeping, travel, maternity clothing
• Bedrest payments
• Life insurance and disability insurance

4. Medical Procedures & Boundaries

• Embryo transfer limit (number per cycle)
• Selective reduction and termination agreement
• Surrogate’s right to decline certain procedures
• Lifestyle expectations: medications, supplements, travel limits

5. Insurance, Medical Bills & Liability

• Primary insurance coverage
• Exclusions and secondary policies
• Out-of-pocket caps
• Responsibility for unexpected hospital fees
• Neonatal insurance coverage plan

6. Communication & Relationship Expectations

• Frequency and mode of updates
• Participation in appointments
• Social media boundaries
• Expectations during labor and delivery

7. Birth & Postpartum Provisions

• Delivery hospital
• Rooming-in preferences
• Who holds the baby first
• Pumping breast milk (optional, with compensation terms)
• Postpartum mental health support

8. Contingency & Worst-Case Scenarios

• Preterm birth
• Emergency medical transfer
• Surrogate incapacitation
• Intended parents unable to travel on time
• Unexpected medical costs not covered by insurance

Pros & Cons

Pros of Robust GCCs

• Fewer misunderstandings and conflicts
• Smooth coordination among clinic, agency, hospital, and lawyers
• Predictable compensation structure
• Legal clarity for domestic and international parents
• Strong protections for the gestational carrier
• Faster parentage order processing

Cons / Trade-Offs

• Upfront time investment (2–4 weeks)
• Legal fees vary by state and complexity
• In very detailed contracts, negotiations may take longer
• Some clauses depend heavily on state friendliness

Costs & Logistics

Typical Contract-Related Costs:

• Intended parents’ attorney: $3,000–$7,000
• GC attorney (paid by parents): $1,000–$2,500
• Escrow management: $1,000–$1,500
• Court filings for parentage: $500–$2,000
• Additional insurance or riders: $2,000–$6,000
• Translation, notarization, travel costs (if international)

Cash-Flow Planning:

• Fund escrow before medication
• Milestone releases (heartbeat, 12 weeks, 20 weeks, viability)
• Postpartum reimbursements (2–6 weeks after birth)
• Pre-birth order filing costs (week 12–20)

What Improves Outcomes

High-Impact Actions

• Delivering in a surrogacy-friendly state
• Reviewing insurance coverage before matching
• Filing parentage orders early
• Clear birth plans communicated to the hospital
• Attorneys experienced specifically in that state and county
• Early mental health support for GC

Low-Impact Actions

• Overly detailed lifestyle restrictions
• Multiple revisions for non-material issues
• Adding documents not required by the court
• Switching hospitals late in pregnancy (unless medically necessary)

Case Study

Situation:
A couple from New York worked with a gestational carrier in Texas. Their first draft contract was missing key clauses about NICU decision-making, insurance exclusions, and postpartum travel delays.

How It Was Resolved:

1. Attorneys added a detailed NICU authority clause and emergency transfer protocol.
2. Insurance specialists identified maternity exclusions; parents purchased a backup plan.
3. Contract included a “delayed travel clause,” allowing temporary guardianship if parents were delayed at the border.
4. Pre-birth order was filed at 18 weeks and approved at 26 weeks.
5. Hospital received the legal packet early and created a surrogacy-friendly delivery plan.

Outcome:
The parents avoided a last-minute NICU authority conflict and were able to take their baby home smoothly, even with travel delays.

Mistakes to Avoid

• Starting medical screening before the contract is finalized
• Assuming all states allow the same parentage pathways
• Underestimating out-of-pocket medical costs
• Not funding escrow early
• Leaving communication expectations vague
• Skipping contingency planning for border-state deliveries
• Relying on sample contracts instead of state-specific drafts

FAQs

Q: Who needs their own attorney?

Ans : Both intended parents and the gestational carrier must have independent legal counsel.

Q: How long does contract drafting take?

Ans : Typically 2–4 weeks, depending on negotiations.

Q: Can we start medications before the contract is signed?

Ans : No. Clinics require fully executed contracts before clearing the GC.

Q: Do we need a new contract if the first transfer fails?

Ans : Usually no—most contracts include multiple transfer attempts.

Q: Does the contract change if we use donor eggs or embryos?

Ans : Yes, parentage and consent clauses may need adjustments.

Next Steps

• Free 15-min nurse consult
• Upload labs for a personalized pathway
• Get a state-specific cost breakdown for your surrogacy case

Related Links

• Legal ethics surrogacy
• Intended Parents
• Become a Surrogate
• Fixed‑Cost Packages
• SART
• CDC ART
• ASRM