Any candidate, whether you are an intended parent, egg or sperm donor, or a gestational surrogate, will need a legal agreement (a.k.a contract) memorializing the intentions of each party. Generally, a contract is an agreement between private parties creating mutual obligations enforceable by law. The basic elements required for the agreement to be a legally enforceable contract are: mutual assent, expressed by a valid offer and acceptance; adequate consideration; capacity; and legality. In terms of the reproductive arena, Attorney Leslie Schreiber explains that these agreements will clarify parental rights and responsibilities and reflect the role of each party.
Gestational Carrier Agreements – Who is a gestational carrier and why does she need a legal agreement with the intended parents. From a medical perspective, a gestational carrier will implant embryos into her uterus which were fertilized outside her body with eggs and sperm of the intended parents or donor(s) selected by the intended parents. She will have no genetic connection to the children born of this arrangement. Gestational carriers perform a generous and unselfish service by carrying a child for intended parents who cannot carry a pregnancy. Entering into this collaborative experience can be rewarding for all the parties involved. But the legal groundwork has to be made to pave the way for a smooth process. The legal agreement will cover many aspects of the arrangement, including, finances, reimbursements, insurance, health guidelines during pregnancy, a carriers’ needs including childcare, lost wages, future contact, confidentiality and privacy concerns, and more. Because every situation differs depending on the parties, the agreement needs to memorialize each persons’ interests. Once a contract is executed, the attorneys issue legal clearance to the fertility clinic so the they can proceed with the medical aspects of the arrangement.
Declaration of Parentage Court Orders – As part of the process, intended parents who use gestational carriers must obtain a court order determining legal parentage. The purpose of this order directs hospitals and/or state vital records departments to place the intended parents’ names on the birth certificate. Some states will allow pre-birth orders; some states will only allow post-birth orders to be obtained. Once the order is secured all parties should be protected in the surrogacy arrangement.
Egg Donation Agreements– An egg donor and intended parent(s) should secure an egg donation agreement prior to any medical procedures. Although this document may not be required by a state statute, failure to secure one can result in each party having different intentions about the role they are playing. For example, is the donor a “donor” or does the donor want to obtain parental rights? The roles and responsibilities of each party will be memorialized in the egg donation agreement which will also include terms governing donor’s health insurance , financial matters, future contact, privacy and confidentiality clauses, just to name a few. Most importantly, though, it should stipulate that upon removal of the ovum from the donor’s body all legal rights pass to the intended parent(s).
Sperm Donation Agreements – Intended parent(s) utilizing a known sperm donor should secure a sperm donation agreement. Like the above legal contracts, it protects all aspects of the arrangement. The sperm donation agreement will define the role of the donor as a donor and not a party intent on having a parental role in the raising of the children born of the arrangement.