When pursuing surrogacy, whether with an agency or independently, there is a clearance process that the fertility clinic requires before proceeding with an embryo transfer with the surrogate. The medical, psychological, and legal clearance process to starting a surrogacy journey is outlined here, and will be required by a fertility clinic (potentially state law) to proceed with a surrogacy journey.

The medical clearance process involves review of a potential surrogate’s medical records as well as in person appointments and testing. The psychological clearance includes all parties - the intended parents and the potential surrogate with their spouse or partner. The parties complete this psycho-educational consultation with a licensed professional to discuss the social and mental health components of the process and future ramifications. Once the medical and psychological clearance is completed, the next and final step is to receive legal clearance for the fertility clinic to schedule the initial embryo transfer. A signed gestational carrier agreement that outlines the rights and obligations between the intended parents and the gestational carrier is required to receive such legal clearance.

This article the outlines steps that are taken in completing your gestational carrier agreement, also referred to as the surrogacy contract, and receiving “legal clearance” to proceed in a surrogacy matter.

1. ENGAGE WITH YOUR SURROGACY LAWYER

It is important for the parties to the surrogacy contract to be independently represented, and may be required by your state and clinic. The intended parents will have their own attorney, and the gestational carrier and their spouse or partner will have a different attorney. It is very important to work with an attorney that is specialized in assisted reproduction either in your state or the state where the child is to be born, or both, as law surrounding assisted reproduction and parentage is state-specific. You can find specialized attorneys in every state through the Academy of Adoption & Assisted Reproduction Attorneys directory here. If working with an agency, the agency may recommendation attorneys, or may even have an attorney within the agency that drafts the contract. Though you will likely only engage with your attorney once medical clearance is either complete or substantially complete, you can always reach out to an attorney when you start the process to learn about your options and the legal aspects in your state.

The intended parents are usually responsible for all legal fees, and parties would each have engagement agreements with their respective attorneys. These engagement agreements will confirm your attorney and outline the scope of representation, usually limited to either drafting or reviewing the surrogacy contract, and include any necessary conflict waivers such as joint representation with a spouse, referrals, and third-party payment. Legal fees for assisted reproduction are often flat fee, and may be paid directly by intended parents or through an agency or escrow agent.

2. REVIEW & NEGOTIATION OF YOUR SURROGACY CONTRACT

The Gestational Carrier Agreement is a contract between the intended parents and gestational carrier and their partner or spouse that creates a roadmap for the surrogacy plan. Attorneys will educate their clients on the process ahead and legal risks associated with their clients’ unique case. The contract outlines the expectations for the process, such as medical testing for carrier and the genetic material used, insurance needs, intended healthcare providers, contact between the parties, and parentage for the child. It will also outline reimbursement for medical and living expenses for the surrogate, if any, and variable expenses like childcare, lost wages, and housekeeping.

The timing of completing the surrogacy contract varies, usually at least 4 - 6 weeks from engaging with the attorneys. Typically, the intended parents’ attorney will draft the gestational carrier agreement, and then send the draft to the surrogate’s attorney to review and provide feedback. Surrogacy attorneys must consider standard principles in contract law and parentage, as well as medical considerations and risks, and evolving legal and policy components such as abortion and using embryos. In reviewing the drafted gestational carrier agreement, parties may negotiate certain terms before all parties are comfortable with the language in the surrogacy contract.

If working with an agency, the agency will provide the attorneys with the terms the parties agreed to in their match. However, as the parties were unlikely to be represented when discussing these terms and the surrogacy contract had not been drafted, the surrogacy contract terms may vary from what was initially agreed to with the agency. The process may take longer with independent situations where there is compensation as the terms have not been fully discussed by the parties, and may take less time in independent cases where the surrogate is not receiving compensation for the journey. Learn about the different types of contracts in assisted reproduction here.

3. SIGN YOUR SURROGACY CONTRACT

Once everyone is in agreement with the surrogacy contract language, the parties will move to signing their Gestational Carrie Agreement. The Agreement often requires initialing on each page and notarization for the signature and certain exhibits, and is usually signed in counterparts, so you will have two separate signed copies. Depending on what the parties’ agreed to and the state’s requirements, the Gestational Carrier Agreement may be signed before a virtual notary. Certain states may have requirements for a court to approve or review the surrogacy contract. Further, certain states or clinics may have requirements surrounding sharing the Gestational Carrier Agreement with the medical provider. In Pennsylvania, it is common practice not to share the Gestational Carrier Agreement, but rather only provide instructions to the clinic in a Legal Clearance Letter.

4. SUBMIT LEGAL CLEARANCE TO THE CLINIC

Once the surrogacy contract is signed, the attorneys will issue legal clearance to the clinic with instructions on the agreed upon embryo transfer and time frame. This information is relayed to the fertility clinic through a Legal Clearance Letter, which will outline the following:

• Names of all parties involved and respective counsel

• How many embryos can be transferred at one time

• How many potential embryo transfers there may be

• The timeframe in which the transfers must occur

• Confirmation that the surrogacy contract contemplates the rights, responsibilities, and obligations of the parties

• State law under which the agreement is written

For example, the Legal Clearance Letter may state, “parties have agreed to up to three embryo transfers, with one embryo per transfer, within twelve months of May 1, 2024, the execution date of the surrogacy contract.” Unless required by the state, or required by the fertility clinic and the parties agreed to share the private contents of the surrogacy contract, the clinic does not receive a copy of the contract – only the letter confirming legal clearance to proceed. An attorney may send the signature pages of the surrogacy contract to show to the clinic that the agreement was signed, if needed. As every clinic is different, it important to confirm with your clients and the clinic to confirm who should receive the legal clearance letter and how to send the letter, such as by email or fax.

5. PUT THE SURROGACY CONTRACT INTO ACTION

Once your surrogacy contract is signed and the clinic receives legal clearance, the parties can schedule their initial embryo transfer. The clearance will start a timeline of medication for the surrogate and next steps in the process to transfer the embryo in hopes of achieving a pregnancy.

In addition to the medical next steps, it is important to make sure other promises from the contract are in place upon signing. This may include setting up and funding an escrow account for the journey, obtaining a health insurance policy for the surrogate, and applying for and confirming accidental death and loss of reproductive organs insurance policies for the surrogate. In addition to the surrogacy contract, there are other future legal needs, such as having Living Will and Advanced Healthcare Directives in place, as well as a plan to confirm parentage to the child in the applicable state. As the Gestational Carrier Agreement is the roadmap everyone will follow for the surrogacy , it is important to understand the next steps that are required as they proceed with their surrogacy journey.

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