Surrogacy Law & Contracts: What Intended Parents and Surrogates Should Know
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Surrogacy involves not just a medical process, but also a legal framework that protects everyone involved – the intended parents, the surrogate, and of course, the baby. Surrogacy laws can vary widely depending on where you live, and having a solid contract is essential for a smooth journey.
In this overview, we’ll cover how surrogacy laws differ by state, what a surrogacy contract typically includes, and why working with experienced legal professionals is so important.
Surrogacy Laws in the United States: A Patchwork by State
There is no single federal law regulating surrogacy in the U.S. Instead, each state has its own laws (or sometimes, lack of laws) about surrogacy. This creates a patchwork of surrogacy-friendly and less-friendly states:
Surrogacy-Friendly States: Many states explicitly allow gestational surrogacy and will enforce surrogacy contracts. For example, California is known as one of the most surrogacy-friendly states. California law allows compensated surrogacy arrangements and provides a clear path for intended parents to be recognized as the legal parents (often via pre-birth orders). Other states with favorable environments include Connecticut, Illinois, New Jersey, Washington, and others. Generally, these states allow contracts and have a legal process to establish parental rights for the intended parents before or at birth.
States with Restrictions or No Clear Laws: Some states don’t have specific surrogacy statutes, but surrogacy is practiced based on court decisions or general legal principles. For example, a state may not have a law on the books about surrogacy, but judges might grant parentage orders if all parties consent. It’s crucial to work with a lawyer who knows the local landscape. A state might allow altruistic surrogacy (unpaid) but not allow compensated surrogacy, or they might allow surrogacy for married couples but not unmarried ones, or require at least one parent to be biologically related to the baby. Each locale can be different.
States That Prohibit Compensated Surrogacy: Until recently, Michigan was notable for criminalizing paid surrogacy. (Michigan had a law that made compensated surrogacy contracts punishable by fines and even jail, a relic from 1988, though it was not really enforced in recent years.) However, in 2024, Michigan passed a new act to legalize compensated surrogacy, removing that ban. As of now, only two states explicitly prohibit compensated surrogacy: Nebraska and Louisiana. In those places, you cannot pay a surrogate (only altruistic surrogacy is allowed, and even then, contracts may be unenforceable). If a surrogate lives in or will give birth in a state where surrogacy isn’t recognized, agencies will usually not proceed with the arrangement there to avoid legal issues.
Legal Parentage: In surrogacy-friendly states, intended parents can often get a pre-birth order from the court, which is a legal document stating that they will be the child’s parents. This means when the baby is born, the intended parents’ names go directly on the birth certificate, and the surrogate is not listed. In some states or situations, a post-birth court procedure (such as a validation hearing or even adoption) might be required. For example, an unmarried intended parent might have to adopt if the state requires a married couple for a direct parentage order. These nuances depend on local law and the specifics of the family (marital status, genetic connections, etc.).
Key takeaway: If you’re an intended parent, it’s wise to pursue surrogacy in a state with clear, favorable laws. If you’re a surrogate, you should reside in (or at least plan to give birth in) a surrogacy-friendly state for the contract to be fully enforceable and to make the legal steps straightforward. An experienced agency like Stork Connections will guide matches accordingly (we wouldn’t match intended parents with a surrogate in a state where the arrangement can’t work legally).
To illustrate, California allows compensated surrogacy and pre-birth orders for any intended parents (married, unmarried, LGBTQ+, using egg/sperm donors, etc.), which makes the process smooth. Contrast that with a place like Nebraska, where any paid surrogacy contract is declared void by law. If a surrogate residing in Nebraska applied, an agency would inform her that she cannot be a compensated surrogate unless she’s willing to travel and give birth out of state, which is logistically very complicated. Similarly, intended parents in Nebraska often work with surrogates from other states. Always know the law of the state where the surrogate will give birth.
(Tip: Creative Family Connections publishes a “Surrogacy Friendly State” map each year that categorizes states as green, yellow, or red for surrogacy – a helpful reference.)
The Importance of a Surrogacy Contract
The surrogacy contract (Gestational Carrier Agreement) is the legal backbone of the surrogacy journey. This contract is negotiated and signed before any medical procedures (like embryo transfer) take place, and it serves several critical purposes:
Clearly Defining Roles and Expectations: A well-drafted contract outlines each party’s rights and obligations in detail. It leaves no ambiguity about what’s expected. For example, it will state that the surrogate will follow the doctor’s instructions regarding abstaining from alcohol, drugs, certain foods, or activities that pose risks. It also outlines that the intended parents will be responsible for expenses like maternity clothing, travel for the surrogate if needed, etc. By putting everything in writing, you minimize misunderstandings.
Establishing Parental Rights: Since surrogacy involves third parties in the reproductive process, a primary concern is securing the intended parents’ parental rights. The contract explicitly states the intended parents’ intent to be the legal parents and the surrogate’s intent to relinquish any parental rights. This contract is then used to obtain court orders that solidify those rights (the surrogate and her spouse typically sign affidavits attached to the court petition, again confirming they don’t claim parentage). Surrogacy contracts play a crucial role in solidifying these rights from the onset.
Financial Arrangements and Protections: The contract details all financial aspects – the surrogate’s base compensation, the schedule of payments (e.g., $X after confirmation of heartbeat, $Y per month during pregnancy, etc.), and additional reimbursements (for travel, bed rest, lost wages, etc.). It will require the intended parents to establish an escrow account from which the surrogate is paid. This protects the surrogate from non-payment and protects the intended parents by ensuring payments are only made as agreed (an escrow agent or agency manages it impartially). It also covers what insurance will be used and who pays for what medical costs. By spelling this out, intended parents are shielded from unexpected financial burdens and the surrogate is assured she won’t have to pay expenses out of pocket.
Health and Medical Decisions: The contract often incorporates a surrogacy-specific medical consent. For instance, it might say the surrogate agrees to do an embryo transfer and follow prenatal care, and the intended parents agree that the surrogate has the right to make decisions in emergencies where her life is at risk. It outlines how much say intended parents have in the surrogate’s medical care – usually, the surrogate maintains control over her own health decisions, but she agrees to adhere to the recommendations of healthcare providers. Things like whether the surrogate will permit a C-section if medically advised, or how to handle differences of medical opinion, are addressed. The contract might specify that the intended parents can be present for certain medical procedures if everyone agrees.
Contingencies: Surrogacy contracts include clauses for various contingencies: What if the embryo transfer doesn’t lead to pregnancy? How many attempts will be made? What if there’s a miscarriage – is there a waiting period before trying again, and is there any compensation in that scenario (often yes, there might be a partial payment for the effort and loss)? What if the surrogate develops a condition that makes continuing risky? What happens if the intended parents separate during the pregnancy (typically, they’re still jointly bound to the contract and the baby’s custody would be determined separately by family courts, but they both remain responsible to fulfill the contract)? By addressing these, the contract prevents panic or conflict later because the roadmap is already agreed upon.
Confidentiality and Relationship Guidelines: Many contracts have a confidentiality clause to protect everyone’s privacy – for example, neither party will share identifying details or photos of the other without permission (useful in case someone wants to blog about their journey or share on social media; usually that’s fine if mutual consent is given). Some contracts also set expectations for contact – e.g., agreeing that intended parents can attend prenatal visits, or that updates will be given at least once a week, etc., though many of those details are worked out informally via the agency.
Ultimately, the contract is there to ensure everyone is on the same page. It’s the rulebook for the journey.
Independent Legal Representation
Both the surrogate and intended parents must have independent legal counsel. This means one attorney (or law firm) represents the intended parents, and a different attorney represents the surrogate. This way, each party’s interests are advocated for during the drafting.
For example, your attorney (if you’re the surrogate) might suggest adding a clause that the intended parents will pay for a housekeeping service if you are put on bed rest, to ensure you don’t come home to a mess after the pregnancy. Or the intended parents’ attorney might ensure a clause is in there that the surrogate will not travel outside the country while pregnant (to control risks and ensure jurisdiction remains in a U.S. court if needed). Each lawyer negotiates to make the contract fair and thorough.
The good news is, as a surrogate, the intended parents cover all the legal fees, including your attorney. So you get the benefit of advice and negotiation without cost. Intended parents should see this as a worthwhile investment in protecting their journey; a few thousand in legal fees is minor compared to the overall cost and is critical to do right.
At Stork Connections, being a boutique agency with an in-house legal team, we often draft the initial contract for the intended parents and then refer the surrogate to a trusted independent attorney to review and edit it on her behalf. We ensure the final contract meets all requirements under California law (or the law of the state governing the contract) so that it’s enforceable in court.
After the Birth: Finalizing Parentage
If the contract and state law allowed a pre-birth order, typically the attorneys will have obtained it in the second or third trimester. This court order is provided to the hospital so that the birth certificate can be issued with the correct names. The intended parents leave the hospital as the legal parents.
In cases where only a post-birth process is allowed, the contract will outline that the surrogate and her spouse (if married) will do everything necessary to establish the intended parents’ rights. That could mean appearing in court shortly after birth to sign paperwork, for example. Because the contract has already indicated consent, these proceedings are usually smooth. The surrogate won’t suddenly refuse – she’s legally bound and has committed well ahead of time.
Modern surrogacy arrangements with proper contracts have a very high success rate in terms of legal outcomes. It’s extremely rare for parental rights issues to go awry when everything is handled correctly from the start. Courts ultimately look at intent (who intended to parent) and the best interests of the child, and the contract is strong evidence of both.
Common Legal Myths Debunked
“The surrogate can change her mind and keep the baby.” In gestational surrogacy (where the surrogate has no genetic tie to the baby) and with a proper contract in a surrogacy-friendly state, this is extraordinarily unlikely. The law is on the side of the intended parents, especially after a pre-birth order. Surrogates also do not enter these agreements to keep the baby – that’s a misconception largely dispelled by the screening process and the fact that surrogates care about fulfilling their part.
Courts have consistently upheld that the contract and intent of the parties matter – for instance, a notable case in California (Johnson v. Calvert) affirmed the intended parents as the legal parents because they had the original intent and genetic connection, despite the surrogate giving birth. The surrogate in that case could not keep the baby due to the contract and intent.
“Surrogacy contracts are not enforceable.” While this used to be a gray area decades ago, today, in states that allow surrogacy, these contracts are enforceable as long as they meet the state’s requirements. If you were to try to do a surrogacy in a state that bans it, then yes, a contract might be deemed void (which is why you don’t do surrogacy there). But in places like California, Illinois, etc., courts not only enforce contracts but often pre-approve them via parentage orders. Parts of contracts regarding child custody and support have to ultimately align with public policy (courts always keep the child’s welfare in mind), but generally everything financial and procedural in the contract will be upheld.
“If the intended parents divorce or die, the surrogate is stuck with the child.” The contract covers this. If the intended parents divorce during the pregnancy, the contract typically states they are both still jointly and severally responsible for fulfilling the contract (including payment and taking the baby). They would have to sort out custody of the child between themselves, just like any divorcing couple with a newborn, but one of them (or another guardian) will take the baby – not the surrogate. If an intended parent dies, the contract often stipulates that their estate or the surviving intended parent will assume responsibility. Intended parents usually establish wills/guardians for the child as part of the process (many agencies require it). Surrogacy contracts often require intended parents to have a life insurance policy in place too, just in case, which would help the surviving spouse or guardian care for the baby.
“Surrogacy for pay is baby-selling and is illegal.” This is an old myth. Modern surrogacy carefully differentiates between paying for a baby versus compensating a woman for her time, risk, and effort. The contract will state that the compensation is for gestational services and not for relinquishing a child (because in gestational surrogacy, the surrogate is not the legal mother of the child anyway). States that allow compensated surrogacy have by definition said it is not baby-selling. For example, New York updated its laws in 2021 to allow compensated surrogacy after previously banning it, with clear language distinguishing it from baby-selling. When done through proper channels, surrogacy is recognized as a legitimate legal arrangement, akin to an adoption process but planned before conception with all parties’ consent.
Conclusion
Surrogacy law can seem daunting, but with the right professionals, it becomes manageable. The key is to operate in a supportive legal environment and have a well-drafted contract. Stork Connections stays up-to-date with surrogacy laws nationwide (such as the recent changes in Michigan) to advise our clients properly. We also work with top reproductive law attorneys to ensure that every surrogacy journey we facilitate has a strong legal foundation.
When considering surrogacy, remember: the contract is your friend. It might feel formal or lengthy, but it is what gives everyone peace of mind to move forward confidently. With laws continually evolving to catch up with modern family-building, the future of surrogacy looks positive – and our team is here to navigate the legal maze on your behalf, so you can focus on the joyous path to bringing a new life into the world.
For more information on becoming a surrogate, please reach out to us at info@storkconnections.com or directly to 619.324.9574. We're here to support you every step of the way.
Warm Regards,
Tonya Zlock
Founder, Stork Connections LLC
