Dear Savvy Surrogate: The 3 Strangest Things in a Gestational Surrogacy Agreement

Dear Savvy Surrogate:

I’m so excited to start this journey! I’m a Gestational Carrier who has been matched with Intended Parents. I’ve passed my medical screenings (yay!) and we’re just starting the gestational carrier agreement part of the process. The Intended Parents’ attorney is working on drafting up the gestational surrogacy agreement right now. I’m on pins and needles waiting to get our first draft. Just wondering, what are some strange things you have seen in gestational carrier agreements? --Excited to Get Started

Dear Excited:

Congratulations!  Please don’t stress over the gestational carrier agreement. Your own lawyer will review it with you and make sure it works for your circumstances. That said, there are three areas that are likely to be covered in your agreement in some manner—Air travel, Animals, and Activities. The “Three A’s”.

Intended Parents are always concerned about minimizing risks. They want the best for their baby—and we know you do too! So how do the three A’s fit in here?

Air travel is always a concern. You can expect to see some restrictions on air travel in your gestational carrier agreement. There are many reasons for this. First of all, an airplane is not a great place to be if you are having a medical emergency. Second, the legal process to establish parentage will be linked to a specific state, usually the state where you live. This legal process will get all messed up if you unintentionally give birth in a different state. Say you are traveling from New Hampshire (a surrogacy friendly state) to California (another surrogacy friendly state) and you go into labor in the middle of the flight. If the plane diverts to Michigan (a very unfriendly state surrogacy-wise), you are going to have massive legal problems with getting the Intended Parents’ legal rights recognized. And nobody wants that.  

Also, if you give birth while on your trip to California, the hospital may be out-of-network for insurance and the resulting deductibles and other charges can be tens of thousands of dollars—which the Intended Parents are responsible for paying. And finally, great care is taken in picking a surrogacy friendly hospital for the birth, so that both you and the Intended Parents can have a positive birth experience. You cannot expect a random hospital you  show up at in the middle of labor to have a surrogacy friendly policy and to have everything ready to go for you guys. Bottom line, there are lots of reasons to give birth in the hospital specified in your gestational carrier agreement.

So what about the second A--Animals. Animals can carry diseases which can be harmful to a pregnant woman and to the baby she is carrying. We all know you shouldn’t change your cat’s litter box while you are pregnant. But other animals—like hamsters and gerbils and other little creatures—can also carry diseases. So cleaning their cages can also be off-limits. Bottom line, if you have exotic or not-so-exotic pets, you and the Intended Parents will have to come to an agreement about their care in your gestational surrogacy agreement.       

The third A—Activities—will also be covered in your gestational carrier agreement. Basically, some activities are inappropriate for pregnant women. In New England, we like to do a lot of skiing, snowmobiling, and four wheeling, but expect these activities to be off-limits during pregnancy. Same goes for skydiving, scuba diving, and so forth. Some gestational surrogacy agreements are written with a very specific list of activities in mind; others are written more broadly, requiring you to use your common sense and to rely on your doctor’s advice. Either way, expect certain potentially dangerous activities to be restricted during your pregnancy (you weren’t probably planning on going skydiving in your third trimester anyway, so no big deal). 

The important thing with all of this is that you and the Intended Parents agree ahead of time on how the “Three A’s” will be handled during the pregnancy. And your agreements will be set out in your gestational carrier agreement, with your lawyer’s help.  

Best wishes on your journey!

--The Savvy Surrogate