Top 3 Negotiated Terms in a Gestational Carrier Agreement

Michelle Misler

A Gestational Carrier Agreement should be the memorialization of terms previously discussed. The key terms are items on which intended parent(s) and a gestational carrier should already have agreed upon and which a reputable and thorough agency (like Fairfax Surrogacy) should have already vetted and used to match. These key terms include views on termination and the number of embryos to transfer, and therefore should NOT be in the top 3 negotiated terms. The following terms are typically the most negotiated in a Gestational Carrier Agreement.

1. Travel Restrictions

Gestational Carriers often do not realize that travel will be restricted during a surrogacy journey. The location of the gestational carrier, and therefore the location of the birth of the child, are important for legal, medical and insurance purposes. The ability to establish parentage, and the path to establishing parentage, are different in every state (and sometimes county). The legal plan is set from the very beginning. If the gestational carrier, for example, goes on vacation to a child’s soccer tournament, or to a work conference, and gives birth in another state, the legal plan will have to change causing additional expenses and extended time. In addition, the delivery hospital will be vetted for the level of care they can provide to a premature child and whether the hospital is in-network with the gestational carrier’s insurance. The distance that a gestational carrier is permitted to travel, the states to which she can and can’t travel, and a cutoff for travel must be set in advance in the Gestational Carrier Agreement. Convenience and risk must be weighed when establishing reasonable restrictions.

2. COVID  

The restrictions one should take to prevent COVID-19 vary widely on an individual, community and state level. Further complicating this matter is the ever-changing status of COVID-19 and recommended precautions. Intended parents and gestational carriers may have very different views on what precautions to take with COVID-19 and very different abilities to remove themselves from what may be considered a risky environment. What is most important when it comes to surrogacy and COVID-19 is that intended parents and gestational carriers engage in open discussions about their own personal comfort level while taking into account the other party’s comfort level and be open to compromise.

3. Participation/Communication

The appropriate level of participation and communication in the process is the amount in which all parties feel the support they desire. Some gestational carriers feel that intended parent(s) should participate in every single appointment, while other gestational carriers would prefer to attend their appointments independently and report back to the intended parent(s) at a later time. Likewise, some intended parent(s) may want to hear from their gestational carrier every day, while others may be ok with weekly or bi-weekly communication, especially at the beginning of the relationship. Each party’s feelings should be discussed early on and memorialized in the Gestational Carrier Agreement. However, it is always important to be flexible and sensitive to the other party’s feelings during the journey and to make efforts to adapt to one another. Dedication to your relationship and respect for one another can make for a rewarding and gratifying journey for everyone involved.

If you have read this far, you can tell that these often-negotiated terms aren’t about being right or wrong but rather personal preferences that are of great importance when navigating a surrogacy journey. What is most important for anyone involved in the surrogacy process is to develop a relationship built on trust and to keep the lines of communication open.


Written by Michelle Misler, Esq.

Michelle Misler is licensed to practice in both MD and DC, with the goal of helping clients make a complicated process attainable. Michelle takes a collaborative yet practical approach to contract negotiations and the establishment of parentage. With nine years of experience working within a surrogacy agency, Michelle can see beyond the terms of the agreement and counsel her clients with the perspective of the entire journey in mind. You can reach Michelle at [email protected].