By Melissa B. Brisman, Esq.
Published in Resolve for the journey and beyond, Winter 2014
What does it mean to be a gestational carrier? Well, medically speaking, a gestational carrier has implanted in her uterus embryos which were fertilized outside of her body using the egg and sperm of the intended parents or a donor(s) selected by the intended parents. The gestational carrier is not genetically related to the child. In most cases, intended parents compensate the gestational carrier for the service she is providing as well as pay the expenses of the pregnancy. But there is so much more to being a gestational carrier. Most gestational carriers enjoy being pregnant and feel that they are contributing in a unique and special way to the lives and happiness of the intended parents. Gestational carriers often form a lifelong bond with the family that they helped create and the rewards of the experience can be felt by the gestational carrier and her family for years to come.
Gestational carriers are providing a priceless gift to an intended parent who has worked hard and suffered tremendously in a quest to create a family of his or her own. Against this backdrop, how do we protect everyone in this type of arrangement? First and foremost the parties must enter into a gestational carrier contract.
A gestational carrier contract is an agreement between intended parents and a gestational carrier and her partner/spouse, if any. These contracts can be compensated or uncompensated and are intended to detail the parties' rights, obligations, intentions, and expectations in connection with their arrangement. The contract addresses subjects such as parental rights, custody issues, location of delivery, future contact between the parties, and insurance (both health and life). In addition, the contract covers issues such as control over medical decisions during the pregnancy, payment of medical bills, liability for medical complications, availability of medical history and personal medical information on the gestational carrier, and intended parents' presence during doctor's visits and at the delivery. Financial considerations such as the gestational carrier's compensation and expenses, including lost wages, legal fees, child care and maternity clothes are also addressed in the contract.
Both the intended parents and the gestational carrier must be represented by an attorney throughout the negotiation process of this contract. This is to ensure that all parties have a clear understanding of their rights and that they understand their responsibility to the other parties. All negotiations will be handled between the attorneys, until the parties agree to terms of the contract. The attorneys are typically compensated by the intended parents (including the gestational carriers’ attorney). It is true that you may never need to review the details of your contract, but if there is ever any question, you know that you have the contract in place to protect all parties.
The intended parents’ insurance policy as well the gestational carriers should be reviewed so coverage can be assessed and no one is left holding medical bills that they cannot afford and/or did not anticipate. It is also recommended that the services of an escrow agent be obtained, so that the expenses and fees can be paid directly from a third party. This keeps the relationship between the intended parents and the gestational carrier about the wonderful journey they are embarking on together, rather than on the money.
Intended parents who use the services of a gestational carrier must obtain a court order determining legal parentage for the child. The order directs the hospital where the child is born and/or the appropriate state department of vital records to place the intended parents' names on the birth certificate of the child delivered by the gestational carrier. The process of obtaining a birth order should begin once a gestational carrier has completed the first trimester of the pregnancy. This is to ensure that there is enough time to obtain a birth order prior to the child's birth. If Intended parents do not obtain an order, in most cases, one or both intended parents will be required to adopt their child. Also, in the absence of an order, the gestational carrier's name may be placed on the birth certificate as the parent of the child when born.
If a contract is in place, the carrier’s insurance is properly vetted, there is an escrow account in place, and a pre-birth order declaring parentage is obtained then all parties will be protected in the arrangement. Intended parents should be aware that there are reproductive law firms/agencies that not only recruit gestational carriers and match them with intended parents, but also review insurance and manage escrow accounts, so that intended parents and their gestational carrier can focus on building a trusting relationship and bringing a new child into the world.
Melissa Brisman is a nationally renowned attorney who practices exclusively in the field of reproductive law. Her practice is located in Montvale, New Jersey, and she is licensed in MA, NY, NJ and PA. She is owner of Reproductive Possibilities, LLC (Surrogate Agency), Melissa B. Brisman, Esq., LLC (Reproductive Law Firm) and Surrogate Fund Management, LLC (Escrow Account Management Company). She completes hundreds of gestational carrier arrangements, ovum, sperm, and embryo donations, and adoptions each year. Melissa first started helping couples become parents in 1996 and is a parent of three children all via surrogacy. She understands the emotion and concern involved in creating a family and as a lawyer, has helped thousands of parents have babies using all available reproductive technologies, while protecting their legal rights. She was the first attorney ever to place two women on the birth certificate of their child, without an adoption, in NJ; and to place two men on the birth certificate of their children, born through a Gestaional Carrier, without an adoption, in PA.