What a Gestational Carrier Arrangement Should Cover

Considerations for engaging in surrogacy or other assisted reproduction in Washington, D.C.

Surrogacy is becoming more and more common in the United States. According to a report from the Council for Responsible Genetics (CRG), the number of infants born to gestational surrogates doubled in a recent four-year period. As assisted reproductive technology becomes more common, the laws surrounding it are also developing. If you are considering using a surrogate, becoming a donor, or using any form of assisted reproductive technology, it is imperative that you have the proper structure in place to ensure that everyone’s legal rights and their best interests are properly protected.

What Is Assisted Reproductive Technology (ART)?

Assisted reproductive technology (ART) broadly refers to the advances in medical technology that enable individuals to achieve pregnancy. Generally, individuals turn to ART to treat male or female infertility issues, or, as in the case of same sex-couples, to form families. ART may involve intrauterine insemination (IUI) of a woman with sperm; in vitro fertilization (IVF) of a woman's eggs with sperm to create embryos which are placed into the intended mother's uterus; and third-party assisted ART, which occurs when intended parents utilize the genetic material of others and/or involve a third party to carry a child.

How a Washington, D.C. Surrogacy Lawyer Can Help

Assisted reproductive technology involves a number of very complicated legal issues that, in D.C., are dictated in the 2016 Collaborative Reproduction Amendment Act. Your gestational carrier agreement between you and your surrogate should cover the myriad circumstances that may arise. What that means for you depends entirely on what relationship you contemplate having with your surrogate/gestational carrier and the outcomes you expect through the collaborative reproduction.

“A gestational carrier agreement in D.C. must involve both intended parents if there are two, the gestational carrier and her partner if she has one. Your counsel should help you memorialize the expectations of the parties as to parentage of any child that will be born, who is entitled to make decisions, expectations as to where delivery will occur, who will be responsible for any child born as a result of the agreement, clear terms regarding any compensation or reimbursements provided to the gestational carrier, and it must memorialize that each party has undertaken what is necessary to provide informed consent to the arrangement,” says Sogand Zamani, a family law attorney in Washington, D.C.

As working with a thirty party to achieve a pregnancy and bear a child is a highly sensitive and individualized process, it is strongly recommended that you seek personalized legal guidance. “The lawyer needs to prepare appropriate documentation to memorialize the cornerstones of any gestational carrier arrangement,” Zamani adds. “The agreement needs to clearly spell out intent; it needs to be in writing and witnessed; must be done before the embryo transfer or insemination occurs; and there must be an affirmation by the intended parents, surrogate and partner (if any), that they had independent legal counsel, have read the agreement, understand it, and are satisfying the requirements of it. The counsel also have to prepare an affidavit saying they have complied with the statute.

"There are numerous, clearly spelled out requirements in the Collaborative Reproduction Act regarding who may qualify as a surrogate, what steps must be undertaken before an embryo transfer occurs, and how parentage will be determined. A client thinking about collaborative reproduction should engage a lawyer at the beginning of the process to ensure an appropriate foundation is laid for the important work ahead."

Other considerations in any gestational carrier agreement include:

  • The timing of and number of embryo transfer attempts that are contemplated

  • Health insurance for the gestational carrier and review for surrogacy exclusions

  • Terms ensuring that the Intended Parents are responsible for the gestational carrier's  medical costs

  • Confidentiality and information sharing

  • Out of court dispute resolution

“Intended parents seeking to engage in collaborative reproduction should ensure that the agreement clearly memorializes all the parties’ expectations, and their intent. It needs to be clear that the intended parents are the sole and only legal parents to any resulting child or children born as a result of the assisted reproduction,” says Zamani. “Any carrier entering into an arrangement needs to speak to a mental health professional about their role, and really contemplate all that it entails: They would be gestating an embryo that is genetically unrelated and the intended parents will have all the rights and responsibilities to that child. At the same time, the carrier retains decision-making rights about what happens to their body while she’s pregnant.”

Ultimately, the more comprehensive an assisted reproductive technology arrangement is, the better off you and your family will be. Remember, there is always a risk that unforeseen issues could arise. It is paramount that you have strong legal protections in place. When using an assisted reproductive technology arrangement, you must follow all relevant rules and regulations. This is a very complex and fast developing part of the law. 

For more information on this area, see our overview of family law.

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