What are the Essential Provisions to Include in a Gestational Agreement?

What are the Essential Provisions to Include in a Gestational Agreement?

Victoria Ferrara


There are certain topics or issues that must be covered in the Gestational Carrier Agreement. First, the medical providers should be identified, such as the IVF clinic, reproductive physician, and obstetrician. The obstetrician that the Gestational Carrier wishes to use should be identified with a further provision that the Intended Parents will have the opportunity to approve of the chosen obstetrician.

In addition, state law must be determined and the gestational agreement should indicate exactly what the law is and what specific procedures are to be followed. All parties must agree to follow these procedural requirements. They  may include anything from legal proceedings to validate the agreement prior to an embryo transfer, to attendance at court for the pre-birth order regarding legal parentage and names on birth certificate.

Usually, the gestational agreement determines how many cycles the parties will attempt. The general provision is for the parties to agree to continue working together for three (3) cycles.  Also, the agreement usually addresses the number of embryos to be transferred at each transfer. Often, the number of embryos is limited to two or three with a further provision that the parties will follow the reproductive physician's advice based on the quality of the "blasts" (embryos) and how many days old they are.

Other important provisions to include in the gestational agreement include issues that may arise during pregnancy, such as whether there will be a termination of the pregnancy in case of a sever birth defect. All parties should be in agreement that whenever a medical issue arises, they will consult with the medical professionals and follow their advice and guidance.  Having the assistance of a surrogacy-matching agency is very helpful, especially with regard to difficult decisions as they will attend to these issues and assist the parties in working out resolutions.

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