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Gestational Carrier Agreements: ART and Law

What Does “ART” Mean?  ART is an acronym for “assisted reproductive technology.”  The term describes all fertility treatments where both egg and sperm are handled outside the body. 

To an infertile couple, however, ART is not a clinical definition.  It is a godsend. 

Infertility affects more couples than you’d guess.  Statistics vary, as do different users’ definitions of the term “infertility”: however, 20% is an oft-cited neighborhood percentage.  Broadly stated, the medical roadblock is with the man a third of the time, the woman a third of the time, and unexplainable a third of the time.

What this means is that there are literally millions of couples who would dearly love to have children, but can’t make it happen…without help.  Thankfully, help is available.

Infertility can be treated with drug or hormone therapies, with surgery, with intra-uterine insemination (where sperm are placed directly in the uterus), or other methods.  Sometimes couples elect an ART approach, the most common of which is “in vitro fertilization” (IVF) and can involve a “gestational carrier.”

During IVF—for women with serious medical issues—a gestational carrier may be used.  A gestational carrier is different from a “surrogate.”  A surrogate uses her own egg to conceive the pregnancy.  A gestational carrier does not.  Instead, the gestational carrier provides a host uterus and carries a child for an individual or couple (the “intended parents).” 

Some gestational carrier arrangements are “commercial” (the carrier is compensated).  A usual fee is anywhere from $15,000 to $30,000. Others are “altruistic” (usually involving a helpful family member or friend who requires no payment).

Laws Differ from State to State: Opinions about reproductive rights and issues are strongly held and widely vary.  Likewise, state laws about such rights and issues vary widely, too. 

Some states, like Minnesota, have little or no law addressing surrogacy.  Gestational carrier agreements are still employed there.  But lawyers and parties need to apply more traditional laws to this newer technological circumstance.

Other states have laws that permit surrogacy and/or gestational carrier arrangements, but only when altruistic.  Still others, like North Dakota, permit only gestational carrier arrangements, whether for pay or not, but discriminate against their gay citizens.

North Dakota law permits gestational carrier arrangements where the intended parents are married, and the IVF process results in an embryo from the husband’s sperm and the wife’s egg.  All other arrangements are deemed “against public policy” and will not be upheld.

The Team:  As you’d expect, gestational carrier arrangements are fraught with issue after issue, whether psychological, ethical, religious, medical, financial, or legal.  It takes a strong team of informed professionals to navigate them. 

The team includes a medical doctor, certified in reproductive health issues, and his or her well-trained staff.  Dr. Stephanie Dahl, of Fargo’s Sanford Reproductive Medicine Clinic, describes her and her staff’s role like this: 

“Our goal is to help families have babies.  Sometimes the help we provide is as simple as prescribing oral medication.  Other cases involve an IVF process, occasionally with a sister or close family member as a gestational carrier.  In those cases, we require mental health screening, and we provide many hours of education prior to beginning the in vitro process.  After the first trimester, the gestational carrier follows up with her own OBGYN for the remainder of the prenatal care and delivery. By far, the best part of our job is snuggling with the babies we’ve helped bring into this world.”                                                                                                

A lawyer, well-versed in the ART process and relevant law, is also a must.  Like the medical personnel, the lawyer serves an educational purpose.  He or she will explain unanticipated issues and concerns, then will draft a Gestational Carrier Agreement for the four parties to sign.

Yes, Four Parties:  At the outset, a gestational carrier arrangement involves the legal rights and responsibilities of the intended mother, the intended father, the gestational carrier…and, if she is married, the gestational carrier’s husband.

Most states have a legal presumption that a child born to a married woman is her husband’s child.  Thus, the carrier’s husband has a strong and important interest in making sure the law recognizes that a child born of an IVF process is not his.  He’ll want the legal process to play out correctly, every bit as much as will the other participants.

A contract, called a Gestational Carrier Agreement, will be required.  The contract will be signed before the IVF process begins, and in broad terms, addresses two broad categories of issues: non-birth issues; and birth-related issues.

Non-birth issues:  There are many non-birth issues a Gestational Carrier Agreement must address:

Will the carrier be compensated?  If so, how much?  At what intervals?  Will payments be escrowed in advance? 

Who will pay for incidental expenses for the carrier (e,g., maternity clothes, lost work time)?

Is there medical coverage in place?  Who will pay for the carrier’s uninsured expenses?

What medical providers and whose screening protocols will be used?

How many IVF transfers will be attempted?

To what extent will each party waive medical confidentiality rights to provide the other needed assurance and the right to participate in the gestational process?

How will “reduction” issues be handled?

Birth-related issues:  This, of course, is what it’s all about.  Once a child is born:

Who has the right to name the child?

Whose names are on the birth certificate as the child’s parents?

Who is financially responsible for the child’s medical expenses?

Who can be present at the child’s birth?

Who makes circumcision and other medical decisions for the child?

The Gestational Carrier Agreement addresses all of these issues, and more.

A Pre-Birth Order:  The safest, clearest, and best process, for all involved, is to obtain a “Pre-Birth Order” from a Court well before the child is born.  With a Pre-Birth Order in hand, everyone—the intended parents, the gestational carrier, her husband, and the medical providers—can all proceed with more confidence. 

Unfortunately, even those states with laws allowing gestational carrier arrangements usually do not provide a process for obtaining the Pre-Birth Order.  Accordingly, the lawyer often ends up explaining an unfamiliar legal process, involving important rights and obligations of multiple parties, to a judge unfamiliar with it all.

Thankfully, Judges nearly always agree: Granting a Pre-Birth Order is a wise and helpful decision.

Plans B and C:  In those rare instances where a judge refuses to grant parties a Pre-Birth Order, there are other avenues to legally establish the parent-child relationship between the intended parents and the child.

Even without a Pre-Birth Order, North Dakota’s Division of Vital Statistics will provide a birth certificate identifying the intended parents as the child’s only parents.  It simply requires three documents: (1) the Gestational Carrier Agreement; (2) a letter from the lawyer who drafted the agreement; and (3) a letter from the doctor who performed the IVF process and confirmed the resulting pregnancy.

A third approach that leads to the same result—legally establishing a parent-child relationship between the child and the intended parents—is a traditional adoption.  Every Gestational Carrier Agreement provides that the carrier and her husband consent to an adoption by the intended parents, and will cooperate with that process.  This approach, however, takes longer (a number of months) and costs more.

Whichever legal route is followed to establish the intended parents’ legal relationship, all concerned will want to make the medical providers—including the hospital where the child will be born—aware of the gestational carrier arrangement well before the child is born.  The hospital will handle its part better if its personnel are not surprised, at the last minute, with news of the gestational carrier arrangement.

Information Sources:  Would you like more information about infertility and reproductive issues?  Are you curious to learn more about surrogacy and gestational carrier agreements?  Here are some good online sources:

www.asrm.org (American Society for Reproductive Medicine)

www.resolve.org (The National Infertility Association)

www.reproductivefacts.org/

www.surromomsonline.com (collection of links about surrogacy)

www.fertilityhelp.com/  (International Assisted Reproduction Center

www.fertilitylifelines.com

www.cdc.gov/reproductivehealth/  Centers for Disease Control and Prevention

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Michael L. Gjesdahl

Mike founded Gjesdahl Law, P.C. in 1989. His practice is exclusively devoted to families, their transitions, their needs. Throughout his career, he has confronted every imagin…
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