As more and more families rely on gestational carriers to have a baby, a troubling trend has emerged that runs counter to best practices and that is bringing attorneys to the table after the terms of the match have been made.

Most agencies only make referrals to an attorney for the gestational carrier after she has been matched with intended parents and undergone medical screening, sometimes including a mock cycle.  The match is reflected in a term sheet outlining all manner of details, including compensation, source of genetic material, identity of parties and professionals, any specific ancillary requirements.  The terms sheet reflects the agreement reached through conversations with the parties and agency staff, medical professionals, and even social media communities.  Attorneys are not included however until the deal is all but done.

In many of the match sheets that cross my desk, I see that the parties have agreed that the Intended Parents will provide a life insurance policy for the Gestational Carrier. This policy is intended to provide financial security for the surrogate’s family in the event she lost her life during the pregnancy, delivery, or shortly following the birth of the child.  The issue I am seeing too often is around when the life insurance policy should start – before or after the embryo transfer. 

It should be an industry standard that life insurance must be in place prior to the transfer of any embryo or the start of any medication, as the medical risk begins to run at that time.  Delaying the start of life insurance might save the intended parents some money, but it does not afford the gestational carrier any financial security for her family for the entirety of the period she has accepted the medical risk. 

Any agreement reached without the advice of counsel as to such important terms is arguably uninformed and unfairly obtained.  To ensure that surrogacy is an ethical and fully transparent undertaking for all parties, agencies should involve attorneys for negotiating important terms, including when life insurance should begin, or set the expectations with the parties that the match terms are a road map for the legal agreement, but not binding on the parties until they have received legal counsel.