Every Surrogate and Intended Parent desires and hopes that their first Embryo Transfer will be successful. And why wouldn’t that be the case; the whole purpose of these surrogacy arrangements is to get the Gestational Carrier pregnant. A successful pregnancy resulting from the IVF Procedures is not only an exciting moment for all parties involved, but it also begins to trigger timing milestones for important contract provisions and payment requirements.
One of the most important items to look for in your Gestational Carrier Agreement or Surrogacy Contract is how gestational age is defined. There are a number of options ranging from an exact formula to allowing that determination to be made by the IVF physician. It is easy to gloss over this detail, but here is brief rundown of why that definition is going to matter for you.
Here are some of the more common ways of defining gestational age.
#Weeks from Embryo Transfer:
First is by using the number of weeks from the date of the Embryo Transfer. In this system, everything is based off the time that has lapsed since the Embryo Transfer procedure that results in the pregnancy. If this is the case, you will typically see all payments defined as #weeks since the Embryo Transfer. Just keep in mind that when you see this in a surrogacy agency’s paperwork or in your Surrogacy Contract, it will mean that the numbers you are seeing are referencing the number of weeks from the Embryo Transfer.
Physician Determined Method:
A second option is to consistently refer to gestational age by using the term “gestational weeks pregnant” or “weeks pregnant.” This is slightly less clear because that definition could mean a couple of things. Most clinics and physicians will classify you as being at least 2-weeks pregnant on the date of the Embryo Transfer. This is because they know the exactly when that transfer is taking place, so there is no need to add 2 weeks from your last ovulation cycle as the likely conception date. Others will go a step further and say on the date of the Embryo Transfer you are (2-weeks + #day embryo/blastocyst) pregnant. As an example, if the embryo you receive is a 5-day old blastocyst, then on the date of the Embryo Transfer you would be 2W5D (2 weeks + 5 days) pregnant. Then from that date on, we just count the time since the Embryo Transfer. This is a more precise way of defining gestational age, but it leaves some ambiguity in your contract because it is unlikely that you will know the age of the embryo you will receive ahead of time. But, this give you the most advanced gestational age based on the age of the blastocyst received during the Embryo Transfer that actually results in a pregnancy.
Undefined:
The third and least desirable option is that gestational age is never defined or expressly calculated in the contract. Some provisions may reference #weeks from the Embryo Transfer, while other areas in the contract might just say “gestational age” or “weeks pregnant.” This could lead to disagreement about the consistency of defining how far along the pregnancy has progressed. Since many payment provisions and important contract provisions can hinge on the exactness of this definition, everyone benefits by making sure there is an agreed upon method for how gestational age will be determined.
Gestational Age & Payments
A number of your payment provision are going to be triggered by you reaching certain milestones in your pregnancy: maternity clothing might be paid after the 12th gestational week; there are often payments associated with each trimester you reach in the pregnancy; and many agency packages have a full-vesting clause (sometime referred to as full-term clause) based on gestational age. A full-vesting clause will define when you as the Gestational Carrier have reached an agreed upon milestone that entitles you to all remaining pregnancy payments you are owed, regardless of what happens after the delivery (meaning this is independent of whether the child survives the delivery or is discharged from the hospital). Almost all of these provisions will hinge on determining just how far along in the pregnancy you are.
Gestational Age & Abortion Provisions
Obviously, no surrogacy match starts out with the intention of needing/desiring/requiring an abortion. However, every contract should discuss what conditions or circumstances would allow the Surrogate or Intended Parent(s) to request an abortion. Usually, the Surrogate will only be allowed to unilaterally decide (meaning she is allowed to make the decision on her own) to abort the pregnancy if the pregnancy is a direct threat to the health and well-being of the Surrogate. The Surrogacy Contract will often limit the Surrogate’s ability to decide whether or not to keep the pregnancy to those rare cases, and defer to the IP(s) wishes for anything else. This means that if the IP(s) request their Surrogate terminate her pregnancy, then she must do so or face a potential laundry list of financial repercussions for materially breaching the contract.
In nearly every contract provision dealing with abortion, the termination time-limit will be dictated by the state law where the elective termination procedure will take place. That could be the state where the Surrogate resides, or as is often the case now, where the Surrogate can travel to (at the IP(s)’ expense) and have the procedure done. So, if a Surrogate lives in Mississippi with a 15-week limit, but Colorado allows elective termination up until 26 gestational weeks, then the IPs could request their Surrogate travel there and have the procedure done. If they have a valid reason to request that she travel there, then she would be contractually obligated to up until Colorado’s deadline for elective terminations.
It is for this reason that I ask all of my Surrogates if they have their own personal termination time-limit for agreeing to an abortion procedure. If they do, we will request to insert that limitation based on the gestational age of the pregnancy. When we put in that restriction, we want to make sure that it is clearly understood how we are calculating that date. So, if a Surrogate says she doesn’t want to abort after the start of the 22nd gestational week, then we want to make sure we know if that is calculated as 22-weeks from the Embryo Transfer, or if it is based on her already being two weeks pregnant on the Embryo Transfer date, or perhaps even (2weeks+#days embryo/blastocyst) pregnant on the transfer date. Without that clarity, the time restriction of 22 gestational weeks could mean a couple of different things.
Conclusion
The exact definition or formula used to calculate gestational age is not as important as knowing how it will be calculated. This will at least let us clearly understand when payments will be made or how time restrictions will be determined. The one thing you don’t want is uncertainty which allows each side to reach a different answer when calculating the gestational age of the pregnancy. Like with most things in contracts, clearly defined terms will make things much easier to resolve when big important issues come up. Make sure you ask your lawyer how your contract determines your gestational age.
