Legal note: This page is educational only and is not legal advice. Surrogacy law and parentage procedures vary by state and can change. Each party should receive advice from qualified counsel licensed in the relevant jurisdiction.
Separate legal counsel matters
Professional guidance from the American Society for Reproductive Medicine recommends separate, independent legal counsel for the gestational carrier and the intended parent or parents before entering into a gestational-carrier agreement. The surrogate's attorney represents the surrogate's interests, not the intended parents' interests.
What the agreement should address
- Compensation, reimbursements and payment timing.
- Medical expenses, insurance and escrow arrangements.
- Expectations concerning prenatal testing, pregnancy management and delivery.
- Allocation of responsibilities and foreseeable risks.
- Communication expectations and practical journey logistics.
- The intended parentage process and any steps required before or after birth.
Medical decisions remain the surrogate's
ASRM's ethics guidance states that a gestational carrier is the source of consent for her own medical care throughout embryo transfer, pregnancy, labor, delivery and aftercare. A contract can document expectations and areas of agreement, but it should not be presented as transferring control of the surrogate's medical decisions to another party.
Parentage procedures vary by state
There is no single nationwide parentage procedure. Some states expressly regulate gestational surrogacy and specify requirements for enforceability and parentage. Other states rely more heavily on court procedure, case law or different statutory routes. Depending on the jurisdiction and circumstances, legal steps may occur before birth, after birth, or both.
For that reason, statements such as “a pre-birth order is always available” or “the contract alone establishes parentage” should not be treated as universal rules.
Is the agreement enforceable?
Enforceability depends on applicable state law and whether statutory or procedural requirements have been satisfied. A signed agreement is important, but its legal effect cannot be evaluated without considering the relevant jurisdiction and the specific facts.
Who usually pays for the surrogate's attorney?
In many agency-supported arrangements, the intended parents cover the reasonable cost of the surrogate's independent legal counsel. The exact arrangement should be confirmed in writing before legal work begins.
Questions to ask your attorney
- Which state's law is expected to govern this arrangement?
- What parentage procedure is expected in the delivery state?
- What requirements must be satisfied for the agreement to be enforceable?
- How are medical autonomy and pregnancy-related decisions addressed?
- How are compensation, expenses, escrow and insurance handled?
- What happens if circumstances change before transfer or during pregnancy?
Related guides
Surrogacy laws by state · Surrogate requirements · Surrogacy risks