What is a gestational agreement? – In my previous blog I discussed the parent-child relationship, its legal impact, and the various ways it can be established. One way is through a gestational agreement. We touched on this briefly at the time, but it was too detailed a topic to throw at you in the same blog.
A gestational agreement is a contract between two intended parents and a third party (a gestational mother) who is willing to give birth to a child. Unlike a surrogate who provides her own eggs and is artificially inseminated with the sperm of the intended father, a gestational mother has no genetic connection with the child. The child is conceived from the eggs and sperm of the intended parents or a donor.
Usually, you see a situation that calls for a gestational agreement arise when a woman is either unable to get pregnant or cannot give birth without risking harm to herself and/or the unborn child.
Often, the intended mother will make the choice to ask a relative or friend to be the gestational surrogate.
A validated and enforceable gestational agreement is used to properly establish the parent-child relationship when a child is born through assisted reproduction. For it to be considered valid, the qualifications are:
- The intended parents must be married and medical evidence must show the mother cannot conceive a child for either of the reasons previously stated.
- The gestational mother must have delivered at least one child beforehand, and it must be shown another pregnancy would not pose a risk to her or the unborn child.
- The eggs used in the procedure must come from the intended parent.
Just like any other contract, the agreement between the intended parents or donor and gestational mother must be in writing. It must also be entered into before conception and cannot provide compensation to the gestational mother. All parties must agree to and sign the document. The contract is then validated by filing a petition in the court. The court must hold a hearing and approve the agreement.
What is a gestational agreement?
Furthermore, a gestational agreement must contain the following provisions:
- The gestational mother must agree to pregnancy through assisted reproduction.
- The gestational mother, her husband, and each donor agree to relinquish all parental rights and duties.
- The intended parents must agree to become the legal parents.
- The gestational mother, any donor, and intended parents must agree to exchange health information.
- A physicians disclosure discussing the risks, rate of successful conceptions, expenses, et cetera.
Once the child is born to a gestational mother under a validated gestational agreement, the intended parents must file a notice of the child’s birth in the court within 300 days after the date of the assisted reproduction. If they don’t, the gestational mother or the state can file a notice in the court.
It is also important to note that without a gestational agreement in place prior to conception, there is no established framework to abide by during the pregnancy. In this case, the gestational mother is considered the mother of the child in the eyes of the state, regardless of the source of the eggs or sperm. Her husband, if any, is also presumed to be the father.
As with any contract, it is wise for all parties to consult with an attorney. If you are considering the need for a gestational agreement, please give one of our team members at Nelson Law Group, PC a call.