Top 10 things you Might Not Realize are in a Gestational Carrier Agreement


Many intended parents are rightfully very concerned about these risks and want to minimize them

Lawyers sit in an odd position for Gestational Surrogacy Agreements (GCAs).  On one side, creating a family is a really happy and fluffy thing to be working on.  Who doesn’t love babies and growing families???  On the other hand, they have to take into account all of the things that are important to both parties and also think of all the strange things that could go wrong and write an agreement reflecting it all in one cohesive document.  It can lead to some, ahem, interesting items being in the contract.  There are far more than this, but here’s a good start:

1. Let’s talk about sex

Why: There was a fairly famous case in the news recently, although the restriction is far older than the specific case. The Gestational Carrier in question swears she followed doctor recommendation regarding when she could have sex again and ended up with a rare case of superfectation; whereby the implanted IVF embryo took AND she also ended up pregnant with her own biological child at the same time!  The reason for restriction of sex should be fairly obvious given that example; Gestational Carriers are trying to carry a child for the intended parents and no one wants to risk the GC accidentally being pregnant with her own child.

2. Air travel

Why: Air travel during pregnancy carries some higher risk of things such as blood clots.  Many intended parents are rightfully very concerned about these risks and want to minimize them by either restricting air travel entirely or at least limiting it to very early in the pregnancy.  It may become much harder to head to Grandma’s house for Thanksgiving dinner when you are pregnant as a gestational carrier.

3. Out of state travel

Why: This seems very similar to air travel, right?  Even if you can’t fly to Grandma’s for Thanksgiving you could drive, right?  Not so fast!  It certainly is similar, but there is a different reason for this restriction.  The law governing the parentage process for the baby is governed by the state where the baby is physically delivered.  That means that if a GC leaves the state and goes into pre-term labor, delivering the baby in another state, the parentage process may be in very hot water!  And if she happens to travel to one of the states where surrogacy is illegal, unenforceable or just plain difficult to get orders for?  Well, life (legally speaking) is about to become very difficult for everyone.  It’s best to agree to stay put in the state from around week 24 of the pregnancy to delivery.

4. What you eat

Why: Food can an emotional and sensitive issue for many people as well as having religious significance for others. On top of that, food nourishes the body of both the gestational carrier and the baby she is carrying. Often Intended Parents have very specific feelings surrounding what food the Gestational Carrier should be eating. I have seen requests for Gestational Carriers to eat all organic foods the entire pregnancy (the IPs offer to pay for the extra expense, of course!). In addition to what she should eat, there are more often restrictions surrounding what a GC shouldn’t eat: Artificial sweeteners, Soybean GMO’s, eggs, soft cheeses, raw fish and many more frequently make the contract naughty list.

5. Handling rodents and reptiles (and animal poop!)

Why: Rodents and reptiles are infamous for carrying diseases (the black plague, anyone?). Even your sweet little Timmy the Turtle in the tank in your son’s room could be harboring salmonella, which becomes a much bigger deal during pregnancy. It’s definitely best if you pass on the snuggling and cleaning duties of rodents and reptiles while you are pregnant. And while it is ok to continue to snuggle with your cat, litter box cleaning duty will need to be passed along due to the risk of contracting toxoplasmosis through the cat feces. (May I pass on the cat box cleaning duty, too? I’d gladly give up that chore!)

6. Appearance

Why: That’s a little misleading. Most Intended Parents aren’t trying to consciously dictate their GC’s appearance. Unfortunately, if you have a bit of “glitter” in your hair like I do, you might like to hit the salon every few months for a nice cut and color, and that could be a problem for some IP’s. Many only ask their GC to refrain for the first trimmest, but others may ask that the entire pregnancy is color free!  In addition, it is not uncommon for Intended parents to ask their gestational carrier to refrain from using certain types of hair spray, no teeth whitening products or certain topical acne solutions.

7. Extreme Sports

This may be slightly more obvious than most, but the explicit nature of the lists are what land them here. Yes, it is common for a Gestational Carrier Agreement to spell out that the GC may not: scuba dive, sky dive, jump on a pogo stick, ski, roller skate, rock climb, ice climb, white water raft, or hang glide. I can’t imagine even wanting to do most of those things while pregnant – I could barely tie my shoes after a while!

8. Amount of exercise

Why: Everyone wants their Gestational Carrier to be as healthy as possible, which does mean some moderate exercise. It’s the extremes that tend to be dictated. Some clinics require no more than moderate walking as exercise for the first trimester and even go so far as to specify that a GC will not allow her heart rate to rise over a certain number of beats per minute. 

9. Tattoos and piercings

Why: Even at the cleanest and healthiest tattoo or piercing establishment, any puncture of the skin carries risks and it’s all about minimizing risks. If you are desperate for that great new tattoo, I promise it can wait.  The tattoo will last forever, taking care of the baby growing inside is a limited time gig!

10. Hot tubs, hot baths, steam rooms, saunas

Why: As with all of the others, the health and safety of the sweet baby the Gestational Carrier is growing is of utmost importance.  It’s best to avoid anything that puts the body in a position of extremes while pregnant.

There are many more provisions in a Gestational Carrier Agreement that might be unexpected the first time a new Gestational Carrier gets a peek into the process. Knowing why some of these items are included can go a long way toward reaching understanding and middle ground on some of the more negotiable requests. No matter what your agreement says, it should be non-negotiable that both parties be represented by their own attorney (yes, that means paying for two attorneys – but it is vitally important!) who specialize in Assisted Reproductive Technology (ART) Law in the state where the child is to be born and that the attorneys takes the time to fully explain anything that the parties don’t understand. No one wants to end up as the Lifetime Movie horror story because they just didn’t understand what they were agreeing to!

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