Surrogacy Contracts: What’s Included and Why

A surrogacy contract (also called a gestational carrier agreement or surrogacy agreement) is the legal foundation of the entire surrogacy relationship. It protects you, the intended parents, and the baby by clearly defining everyone’s rights, responsibilities, and expectations before the journey begins.

This guide explains what’s in a typical surrogacy contract, why each element matters, and how the legal process works.

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Key Takeaways

• A surrogacy contract is legally required in most states before medical procedures can begin
• Both you and the intended parents will have separate, independent attorneys
• The contract covers compensation, medical decisions, legal parentage, and more
• You don’t pay for legal representation — the intended parents cover all legal costs
• Contracts are negotiable — you have a voice in the terms

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Why Surrogacy Contracts Matter

Without a comprehensive contract, surrogacy would be legally and emotionally risky for everyone involved. The contract:

• Establishes legal parentage — Clarifies who the legal parents of the child will be
• Protects your rights — Ensures your bodily autonomy, health decisions, and compensation are secured
• Sets clear expectations — Prevents misunderstandings about the process, communication, and lifestyle
• Provides a roadmap — Outlines what happens in various scenarios (complications, multiples, etc.)
• Is required by fertility clinics — Most clinics won’t proceed with embryo transfer without a signed contract

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Key Sections of a Surrogacy Contract

1. Compensation and Payment Schedule

This section details:

• Base compensation amount — Your total base pay
• Payment schedule — When payments are made (typically monthly after confirmed heartbeat)
• Escrow arrangement — Funds held in escrow by a third party
• Bonuses — C-section bonus, multiples bonus, experienced surrogate premium
• Monthly allowance — Amount for pregnancy-related expenses
• Specific benefits — Maternity clothing, housekeeping, childcare, travel reimbursement
• Lost wages — How missed work is compensated
• Cancelled cycle compensation — What happens if the process stops at various stages

For compensation details by state, see our surrogate pay by state guide.

2. Medical Decisions and Procedures

• Medications — Agreement to follow the prescribed medication protocol
• Number of embryos transferred — How many embryos will be transferred per cycle
• Selective reduction — Whether multifetal pregnancy reduction is an option
• Termination — Under what circumstances termination might be considered (severe fetal abnormalities, life-threatening maternal health)
• Medical provider selection — Who chooses the OB/GYN and delivery hospital
• Prenatal care — Expected frequency of appointments and cooperation with medical team

This is often the most sensitive section. You retain the right to make decisions about your own body and health, but the contract establishes a framework for how these decisions will be discussed and navigated.

3. Lifestyle Provisions

• Diet and nutrition — General expectations for healthy eating during pregnancy
• Exercise — Parameters for physical activity
• Substance restrictions — No smoking, alcohol, recreational drugs, or unprescribed medications
• Travel restrictions — Limitations on travel, especially in the third trimester
• Sexual activity — Restrictions during certain phases (e.g., around embryo transfer)

4. Legal Parentage

• Pre-birth parentage order — In states that allow it, legal parentage is established before birth
• Post-birth parentage order — In other states, the process happens after delivery
• Birth certificate — How the intended parents’ names will appear
• Your parental rights — Explicit statement that you are not the legal parent and do not seek parental rights

For more on this topic, see our guide on surrogate parental rights.

5. Insurance and Medical Coverage

• Health insurance — Who provides it, what it covers, and backup plans
• Life insurance — Policy provided for you during pregnancy
• Disability insurance — Coverage if complications prevent you from working
• Complications coverage — Who pays for pregnancy-related complications

6. Communication and Relationship

• Communication expectations — Frequency and methods of contact with intended parents
• Appointment attendance — Whether intended parents can attend prenatal visits
• Social media — Guidelines on sharing pregnancy-related content online
• Confidentiality — What can and cannot be shared publicly

7. Delivery and Post-Birth

• Birth plan — Framework for the surrogate birth plan
• Delivery room presence — Who will be in the room
• Breastmilk pumping — Whether you agree to pump breast milk post-delivery
• Post-birth recovery — Support provided during your recovery
• Ongoing relationship — Expectations for contact after the surrogacy concludes

8. Contingency Provisions

• What if the intended parents divorce during the process?
• What if an intended parent dies?
• What if you develop a life-threatening condition?
• What if the baby has a disability?
• What if you need prolonged bed rest?

These provisions aren’t pleasant to discuss, but they’re essential for protecting everyone in unlikely scenarios.

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The Legal Process

Step 1: Attorney Selection

Both sides must have independent legal representation:

• The intended parents hire a surrogacy attorney (and pay for both attorneys)
• You’re assigned or choose your own attorney — this is YOUR advocate

Step 2: Drafting

The intended parents’ attorney typically drafts the initial contract.

Step 3: Your Review

Your attorney reviews the contract with you, explains every provision, and suggests modifications.

Step 4: Negotiation

Back-and-forth negotiation until both sides agree on all terms. This usually takes 1-3 rounds.

Step 5: Signing

Once finalized, all parties sign the contract, often with notarization.

Step 6: Escrow Setup

Compensation funds are deposited into an escrow account managed by a third party.

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Your Rights in the Contract

Important things to remember:

• You can negotiate — The first draft isn’t the final version
• You retain bodily autonomy — No contract can override your right to make medical decisions about your body
• You have your own attorney — They work for you, not the intended parents
• You can walk away — Before signing, you can withdraw from the arrangement
• Legal fees are covered — You don’t pay for your attorney

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Frequently Asked Questions

How long does the contract process take?

Typically 2-4 weeks from initial draft to final signing. More complex situations may take longer.

Can I negotiate my compensation?

Yes. While agencies have standard compensation structures, experienced surrogates in particular often negotiate higher compensation. Your attorney can advocate for your financial interests.

What happens if the contract is breached?

Contract breaches are handled according to the remedies specified in the agreement. Minor breaches are usually resolved through communication and mediation. Significant breaches could potentially lead to legal action, though this is extremely rare.

Do I need to understand every word of the contract?

Your attorney’s job is to explain everything in plain language. Don’t sign anything you don’t understand. Ask questions — no question is too basic when it comes to a legal document governing your pregnancy.

Are surrogacy contracts enforceable?

In most surrogacy-friendly states, yes. However, enforceability varies by state. States like California and Illinois have strong legal frameworks that make surrogacy contracts highly enforceable. Your attorney will advise you based on your state’s specific surrogacy laws.