Surrogacy Agreement

A Surrogacy Agreement in the United States sets out the rights, duties and consideration binding the parties to it.

Surrogacy law in the United States is state law — there is no federal statute governing gestational surrogacy contracts. The legal environment ranges from states with complete surrogacy statutes to states that void surrogacy contracts entirely. California, which enacted the California Surrogacy Law under Family Code sections 7960 through 7962 effective January 1, 2013, is the most permissive jurisdiction: the law expressly authorizes gestational surrogacy agreements, requires pre-birth parentage orders for all parties named in a valid agreement, and gives gestational carriers specific rights including the right to independent legal counsel. Nevada's Uniform Parentage Act amendments (Nevada Revised Statutes Chapter 126) similarly permit gestational carrier agreements and pre-birth orders for intended parents.

Washington State enacted the Washington Uniform Parentage Act (RCW Chapter 26.26A) in 2019, legalizing compensated gestational surrogacy and establishing a parentage order process. Connecticut Public Act 21-15, effective October 2021, codified surrogacy agreements in Connecticut. Texas Family Code Chapter 160, Subchapter I (sections 160.751 through 160.763), authorizes gestational agreements for married intended parents with a judicial validation process before transfer.

States that restrict or prohibit compensated surrogacy include Michigan (Michigan Surrogacy Contracts Act, MCL 722.851 et seq., which declares surrogacy contracts void and imposes criminal penalties for commercial surrogacy), Louisiana (La. R.S. 9:2713, declaring surrogacy contracts null), and Nebraska (which has no statute but whose courts have historically declined to enforce surrogacy agreements).

The American Society for Reproductive Medicine (ASRM) and the Society for Assisted Reproductive Technology (SART) publish practice guidelines on medical screening requirements for gestational carriers, minimum age (typically 21 years), prior successful pregnancies, psychological evaluation, and insurance review. These guidelines, while not legally binding, set the professional standard of care for fertility clinics and reproductive endocrinologists conducting embryo transfers under surrogacy arrangements. IVF clinics typically require a completed surrogacy agreement before proceeding with embryo transfer.

A US Gestational Surrogacy Agreement is needed before any medical procedures — including embryo transfer — are conducted in connection with a surrogacy arrangement. Fertility clinics affiliated with SART and operating under ASRM guidelines require a fully executed surrogacy agreement, reviewed and signed by attorneys representing each party independently, before proceeding with any IVF cycle or embryo transfer.

Heterosexual intended parents who are unable to carry a pregnancy due to medical conditions — including absent or surgically removed uterus (Müllerian agenesis, hysterectomy), recurrent pregnancy loss, or conditions making pregnancy medically inadvisable — use gestational surrogacy as the pathway to parenthood. The surrogacy agreement governs the entire arrangement from pre-transfer through post-birth legal proceedings.

Same-sex male couples — for whom surrogacy is the primary path to genetic parenthood — require a gestational carrier agreement regardless of the state in which they reside. California, Nevada, Washington, and Connecticut are the most commonly used states for surrogacy arrangements by same-sex male couples due to the strength of their statutory protections and the availability of pre-birth parentage orders naming both fathers on the birth certificate.

Single individuals of any gender who wish to have a genetically related child through gestational surrogacy require a carrier agreement. California Family Code section 7962 explicitly extends surrogacy rights to single intended parents, as does Nevada's Uniform Parentage Act, making these jurisdictions the most accessible for non-traditional family structures.

Gestational carriers — women who agree to carry a pregnancy for intended parents — require an independent attorney-reviewed agreement to protect their rights during pregnancy, including the right to make medical decisions affecting their own health, the right to receive adequate compensation and insurance coverage, and the right to receive clear documentation that they will have no parental obligations after birth.

Agency-matched surrogacies — where a surrogacy agency matches intended parents with a carrier and coordinates the process — require a surrogacy agreement as the foundational legal document. Agencies including Circle Surrogacy, Surrogate Alternatives, and RESOLVE (the National Infertility Association) maintain lists of surrogacy attorneys in permissive states to assist parties in executing compliant agreements.

A US Gestational Surrogacy Agreement must contain specific provisions required by California Family Code section 7962, Nevada Revised Statutes Chapter 126, or the applicable state statute, as well as provisions that protect both parties' interests throughout the surrogacy arrangement.

The parties and representation section identifies the intended parents — by full legal name and, where relevant, marital status — and the gestational carrier and her spouse or domestic partner (whose consent to the arrangement is required in most states). California Family Code section 7962(a) requires each party to be represented by independent legal counsel before signing the agreement; an agreement signed without independent counsel is not enforceable in California courts. Nevada and Washington impose similar independent counsel requirements.

The embryo creation and transfer section describes the IVF protocol to be used — including whether the embryo is created from intended parent gametes, donor eggs, donor sperm, or a combination — and the fertility clinic and reproductive endocrinologist conducting the procedure. The section should specify the number of embryos to be transferred per cycle, the parties' agreement regarding frozen embryo storage and disposition, and the medical screening criteria the carrier must meet under ASRM guidelines before transfer.

The compensation and expense section is the financial core of the agreement. Base compensation — the amount paid to the gestational carrier for carrying the pregnancy to term — must be specified, along with the payment schedule (typically monthly installments beginning after confirmation of fetal heartbeat). Additional compensation items include: monthly allowance for pregnancy-related expenses; maternity clothing allowance; travel reimbursement for medical appointments; lost wages for work missed due to pregnancy-related medical appointments or bed rest; childcare and housekeeping allowance during recovery; and additional amounts for multiple gestation (twins, triplets), cesarean delivery, invasive procedures, or loss of reproductive capacity. All compensation should be held in an escrow account managed by a neutral escrow agent.

The health insurance section addresses the gestational carrier's insurance coverage throughout the pregnancy and the postpartum period. Many standard health insurance plans exclude surrogacy — the agreement must specify who is responsible for obtaining a surrogacy-compatible insurance policy, who pays the premiums, and the coverage required. The intended parents typically agree to pay for a separate surrogacy insurance policy if the carrier's existing health insurance does not cover surrogacy-related medical expenses.

The parental rights and relinquishment section states the fundamental legal structure of the arrangement: the gestational carrier has no genetic connection to the child, does not intend to parent the child, and agrees to relinquish physical custody immediately after birth to the intended parents. The intended parents are the legal parents of the child. In California, this provision supports the pre-birth parentage order under Family Code section 7962. The carrier and her spouse, if any, expressly waive any claim to parental rights.

The medical decision-making section allocates authority over decisions during pregnancy. The gestational carrier retains full autonomy over medical decisions affecting her own body — including decisions regarding prenatal testing, labor management, and treatment of complications. The agreement typically provides that the carrier will follow the fertility clinic's medical protocols and the prenatal care recommendations of her chosen obstetrician. Selective reduction and termination provisions — among the most sensitive provisions in any surrogacy agreement — must be negotiated and agreed upon before transfer; the ASRM recommends that both parties document their positions in advance.

The pre-birth parentage order process section describes the legal steps to be taken during the pregnancy to establish the intended parents' legal parentage before or immediately after birth. In California, the reproductive law attorney files a petition under Family Code section 7962 with the court, typically during the second trimester, to obtain a pre-birth order directing the hospital to issue a birth certificate naming the intended parents. Texas Family Code section 160.756 requires judicial validation of the gestational agreement before embryo transfer; validation constitutes the parentage order.