Surrogacy Law for Surrogates
Independent legal representation that protects your rights, your compensation and your peace of mind throughout your surrogacy journey
Becoming a surrogate and helping a family realize their dream of having a child is one of the most meaningful things you’ll ever do. But the journey also involves legal procedures to keep you, the intended parents and all other parties safe and protected.
At Fertility & Surrogacy Legal Group, APC, our attorneys serve as your dedicated legal advocates throughout the process, making sure your interests are represented independently from the intended parents’ or agency’s. Our job is to make sure the legal side of your journey is secure, clear and worry-free.
Legal Differences of Gestational vs. Traditional Surrogacy
| Aspect | Gestational Surrogacy | Traditional Surrogacy |
|---|---|---|
| Genetic connection to child | None. Conceived via IVF using the intended parent(s)' or donor's genetic material. | Surrogate is genetically related as her own egg is used. |
| Path to legal parentage | Typically established through a pre-birth or post-birth court order naming the intended parents as legal parents. | Often requires a more complex legal path (such as a second-parent or step-parent adoption), since the surrogate is the legal and biological mother at birth in many states. |
| State law treatment | Most surrogacy-friendly states have clear statutes specifically addressing gestational surrogacy. | Many of the same statutes exclude traditional surrogacy or treat it differently and some states significantly restrict it or don't address it at all. |
| Surrogate's legal standing at birth | No legal claim to the child once a valid Gestational Carrier Agreement is in place. | Because of the genetic link, the surrogate may retain legal standing until it's formally terminated through the applicable adoption or parentage process. |
* Note: Every surrogacy journey is different and traditional surrogacy involves added legal complexity in most states. Talk to an attorney directly about which path applies to you.
We Work with Surrogates Nationwide
We represent surrogates in every state where compensated surrogacy is legally recognized.
We’re licensed to practice in California, Colorado, Florida, Georgia, Oregon, Texas and Washington. But if you live outside one of these states, we can often still help through our of-counsels and vast network of Attorney partnerships.
What Goes Inside Your Gestational Carrier Agreement
A Gestational Carrier Agreement (GCA) is the legal foundation of your surrogacy journey. It’s a comprehensive document detailing every single step of the surrogacy process that you and the Intended Parents Agree upon. While each agreement is different, these are the core features every agreement must have:
Compensation & Escrow Timeline
Your base compensation, monthly allowance and payment schedule should be clearly defined. It should be fully funded in an independent escrow account before any medical procedures begin.
Medical Coverage & Liability Protection
The agreement should confirm the intended parents cover 100% of your medical expenses and insurance gaps, with added compensation for situations like a C-section, carrying multiples or extended bed rest.
Your Medical Decision-Making Rights
Your agreement should preserve your right to make your own healthcare decisions and choose your own doctor and delivery hospital and reflect your personal views on sensitive topics like selective reduction.
Contingency Planning
A strong agreement anticipates the “what-ifs” such as complications, multiples or a change in the intended parents’ circumstances during your pregnancy. These scenarios belong in writing, never a verbal understanding.
Establishment of Parentage
The contract must explicitly state that the Intended Parents will be given the complete parental rights of the baby, and their names will go in the baby’s birth certificate as legal guardian.
Understanding the Surrogacy Legal Process
Choosing to build your family through surrogacy involves far more than finding the right agency or clinic. At each stage, specific legal steps protect your rights as intended parents. Here’s what the legal process typically looks like in the US.
Retain Independent Legal Counsel
Before anything else, you'll have your own attorney who is separate from the intended parents'. They will review your agreement and protect your interests specifically.
Sign Your Gestational Carrier Agreement (GCA)
Your compensation, medical decisions and contingency plans are finalized in writing before any medical procedures begin.
Escrow Account Funded
Your compensation and expense allowance are secured in an independently managed escrow account.
Clinic Consent & Medical Release Forms
You'll sign the fertility clinic's informed consent paperwork and a medical information release, so your OB and the clinic can share relevant updates with the intended parents.
Embryo Transfer
Medical procedures can begin once every legal document is signed and finalized.
Parentage Order Filed
Around your second or third trimester, your attorney and the intended parents' attorney file for a pre-birth (depending on your state), legally establishing the intended parents as the child's legal parents.
Hospital & Birth Records Paperwork
At delivery, hospital staff coordinate the birth certificate paperwork based on your state's parentage order, so the intended parents' names are listed as the legal parents.
Your Legal Role Concludes
Once the baby is born and the paperwork is finalized, your legal responsibilities are complete and your agreement will have already addressed the full release of parental rights and obligations.
Compensation & Escrow Protections
Your compensation is held in an independently managed escrow account, released according to the schedule set out in your agreement. This structure helps protect you from payment delays or disputes and helps ensure funds are available as milestones in your journey are reached.
Escrow matters because it removes financial risk from your journey entirely. Your compensation isn’t dependent on the intended parents’ ongoing finances or an informal payment plan and funds are secured by an independent third party before you begin, so they’re there when you need them, regardless of what happens on the intended parents’ side.
Why You Need Your Own Attorney
You and the intended parents should never share the same attorney. Getting your own legal representation is the first step toward moving forward with a knowledgeable advocate solely focused on you – someone who can negotiate favorable terms, make sure your agreement is airtight and build in protections specifically for you.
You and the intended parents should never share the same attorney. Getting your own legal representation is the first step toward moving forward with a knowledgeable advocate solely focused on you – someone who can negotiate favorable terms, make sure your agreement is airtight and build in protections specifically for you.
Why Choose FSLG
Multi-State Legal Coverage
We represent surrogates in every state where compensated surrogacy is legally recognized, so wherever your journey takes you, you have an experienced advocate who understands your state’s specific laws.
Conflict-Free Representation
When we represent you, we represent you. Never the intended parents or the agency in the same journey. Your agreement, your compensation and your protections are our only focus.
International Arrangement Expertise
FSLG understands the additional coordination, documentation, parentage, travel and timing considerations of international surrogacy arrangements We help keep the legal process clear and organized throughout the journey.
Rich Geisler
Principal & Founder
Erin O. Allen
Senior Associate Attorney
Megan Gruter
Associate Attorney
Frequently Asked Questions
What are My Legal Rights as a Surrogate?
You have the final say over your own medical decisions, no contract can force you into a procedure like a C-section or amniocentesis against your active consent and in a medical emergency, your health takes priority. You’re entitled to your own independent attorney, paid for by the intended parents and to guaranteed compensation secured in an escrow account before your journey begins.
You also have the right to choose your own doctor and delivery hospital and you carry no legal or financial responsibility for the child after birth.
Most state frameworks also let you walk away without penalty any time before an embryo transfer takes place.
How Do Surrogacy Laws Differ From State to State?
The U.S. has no federal surrogacy law, so protections vary widely depending on where you live and more importantly, where you’ll give birth. States generally fall somewhere between fully supportive like California, which has some of the clearest legal protections for surrogates in the country and highly restrictive, like Louisiana, which limits compensated surrogacy to narrow circumstances or Nebraska, where compensated surrogacy contracts are void and unenforceable.
Because your state’s law is what actually governs your journey, it’s worth confirming exactly where you stand before you sign anything.
What Should I Look for in My Surrogacy Contract?
Make sure your escrow account is fully funded before you begin any medical procedures and that all your medical costs and insurance gaps are clearly the intended parents’ responsibility. Your contract should protect your right to choose your own doctor and make decisions that reflect your personal beliefs, without financial penalty. It should also clearly spell out what happens in situations like complications, multiples or a change in the intended parents’ circumstances.
The golden rule – if something matters to you, it needs to be written into the contract, not agreed to verbally.
What Legal Documents Will I Need to Sign?
Before any medical procedures, you’ll sign your Gestational Carrier Agreement, along with the fertility clinic’s informed consent forms and a medical information release. Later in the pregnancy, your attorney will prepare parentage order documents, a pre-birth or post-birth petition, depending on your state which confirms your support for the intended parents being named the legal parents.
At the hospital, you’ll sign state-specific paperwork that allows your birth records to route directly to the intended parents, based on the court order already in place.
What Happens Legally If the Intended Parents Separate During My Pregnancy?
It doesn’t change your legal protections. U.S. courts consistently apply an “intent to parent” standard, a principle meaning the intended parents remain legally responsible for the child even if their relationship ends during your pregnancy. Your compensation continues on schedule through your escrow account regardless of what’s happening between them and any custody questions are resolved between the intended parents and their own attorneys, not you.
Your agreement and your attorney are there to shield you from that conflict.
How Do I Find the Right Surrogacy Attorney?
Look for an attorney whose practice is substantially focused on Assisted Reproductive Technology (ART) law. Ideally someone recognized by the Academy of Adoption and Assisted Reproduction Attorneys (AAAA) and licensed in the state where you’ll give birth.
They should represent you and only you in your specific journey, never both sides of the same transaction and their fees should be billed directly to the intended parents. You should never pay out of pocket.
Our White Paper On The Surrogacy Law Landscape
Surrogacy In A Post-Dobbs World: Navigating Challenges And Mitigating Risks
