Signing a surrogacy contract is one of the most significant legal steps you will take on the path to parenthood. It is also one of the most misunderstood. Many people assume it is routine paperwork — a formality to get through before the “real” part of the journey begins. It is not. A well-drafted surrogacy agreement protects everyone involved: the intended parents, the gestational surrogate, and the child they are building a future for.
At Fertility & Surrogacy Legal Group, APC, we draft and negotiate customized gestational surrogacy agreements for intended parents, gestational carriers, and fertility agencies nationwide. Here is what every surrogacy contract must include and why each element matters.
- A surrogacy contract (also called a gestational carrier agreement or gestational carrier contract) must be fully signed before any embryo transfer can take place.
- Both the intended parents and the surrogate must have their own independent attorneys — this is a legal requirement in California and a practical requirement nearly everywhere else.
- The contract covers compensation, insurance, medical decisions, parental rights, governing law, communication, and dispute resolution.
- California has the strongest statutory framework in the country; its requirements are worth understanding regardless of where you live.
- Generic templates found online are not enforceable substitutes for a properly drafted agreement.
- FSLG serves intended parents, surrogates, and agencies in California, Colorado, Florida, Georgia, Oregon, Texas, and Washington, with a nationwide referral network.
What Is a Surrogacy Contract?
A surrogacy contract is a written legal agreement between the intended parent(s) and the gestational surrogate — and her spouse or partner, when applicable. It defines each party’s rights, obligations, and intentions before the medical phase of the journey begins.
The agreement is not a formality. In California and many other states, a signed surrogacy contract is a legal prerequisite before a fertility clinic will proceed with an embryo transfer. Under California Family Code §§7960–7962, the agreement must meet specific requirements, including independent legal representation for all parties, before it is valid and enforceable. A properly executed contract is also what enables intended parents to obtain a pre-birth order: the court order that places their names on the birth certificate without any adoption proceeding.
When Is a Surrogacy Contract Created?
Drafting begins after the intended parents and surrogate have been matched, completed initial medical and psychological screenings, and agreed to move forward. Each party retains its own independent attorney (a legal requirement, not a best practice), and those attorneys work together to draft, review, and finalize the agreement.
From first draft to fully executed contract, the process typically takes three to six weeks. More complex arrangements, including those involving international intended parents or independent matches without an agency, may take longer. Fertility clinics will not begin the embryo transfer protocol until legal clearance is issued, so starting promptly after matching is important.
Identification of the Parties and Statement of Intent
The contract opens by identifying all parties: the intended parent(s), the gestational surrogate, and her spouse or domestic partner. It explicitly states that this is a gestational arrangement – the surrogate has no genetic connection to the child – and that the intended parents are the sole legally recognized parents.
In states where parentage statutes default to the woman who delivers the baby, this opening statement also serves as a legal rebuttal of any presumption that the birth mother is the parent. It is the foundation everything else is built on.
Rights and Obligations of the Intended Parents
The intended parents’ commitments are defined in full here:
- Full financial responsibility for all pregnancy-related medical costs and surrogate expenses
- Timely funding of the escrow account before the surrogate begins medication
- Respect for the surrogate’s bodily autonomy and medical decision-making rights
- Agreed-upon communication and involvement during the pregnancy
- Unconditional acceptance of the child at birth, regardless of health or circumstances
For same-sex couples or international intended parents, additional provisions address second-parent rights, citizenship, consular requirements, or jurisdiction-specific parental establishment steps.
Rights and Obligations of the Gestational Surrogate
The surrogate’s side of the agreement covers just as much ground. She agrees to carry the pregnancy on behalf of the intended parents, relinquish any parental rights or presumptions to the child, attend all required medical appointments, and follow the fertility clinic’s prescribed protocols.
Beyond those core commitments, the contract also documents lifestyle terms – travel, activity levels, dietary guidelines, substance restrictions – and establishes geographic boundaries. Those boundaries typically include a ban on international travel and restrictions on late-pregnancy travel to states with laws unfavorable to surrogacy. The reason is practical: an unplanned delivery in the wrong jurisdiction could put the intended parents’ legal rights at risk.
Terms around selective reduction and pregnancy termination require the most careful negotiation of anything in the contract. State laws – particularly in states with abortion restrictions – directly shape what can be included here and how it must be worded.
Throughout all of this, the contract must honor the surrogate’s legally protected right to make medical decisions about her own body. A well-drafted agreement documents what the parties have agreed to. It provides a framework for navigating disagreements. It does not attempt to override her rights.
Compensation, Reimbursements, and Escrow
Compensation provisions are detailed by design. They typically cover:
- Base compensation: The surrogate’s total fee, paid in monthly installments beginning after a confirmed heartbeat
- Reimbursable expenses: Medical co-pays, travel, maternity clothing, childcare during appointments, lost wages, and other documented costs
- Contingency payments: Additional amounts for C-section delivery, multiple births, invasive procedures, bed rest, or other defined complications
- Escrow account terms: How funds are deposited, held, and disbursed by a neutral third-party holder
FSLG’s funds and financial management services ensure compensation is handled through a properly structured escrow account from day one – protecting the surrogate’s right to timely payment and the intended parents from financial exposure.
Health Insurance and Medical Coverage
Not all health insurance plans cover surrogacy pregnancies – many explicitly exclude them. The contract must address whether the surrogate’s existing policy covers a gestational carrier pregnancy, who is responsible for obtaining a surrogacy-compatible policy if needed, and how denied claims or coverage gaps will be handled. Life insurance and short-term disability coverage for the surrogate during the pregnancy are also part of this.
Insurance questions are worth resolving before the contract is finalized. A coverage gap discovered mid-pregnancy is far more difficult – and expensive – to fix.
Medical Decisions and Procedures
The contract documents the parties’ agreed positions on key medical matters:
- The number of embryos to be transferred per cycle, the maximum number of transfer attempts, and any agreed cap on the total duration of the surrogate’s commitment
- Terms around selective reduction – reducing the number of fetuses in a multi-fetal pregnancy – which is among the most sensitive points any contract must address
- Protocols for managing unexpected complications
- Positions on life-sustaining measures in extreme circumstances
The laws of the state where the surrogate lives determine what is legally permissible in this section – which is one of the reasons choosing the right governing jurisdiction matters so much.
Parental Rights and Birth Orders
Establishing legal parentage is the whole point of the contract, and this section defines exactly how it happens. In California and many other pro-surrogacy states, the mechanism is a pre-birth order – a court order issued during the pregnancy that directs the hospital to place the intended parents on the birth certificate from birth.
The contract specifies which state’s laws govern the parentage determination and where the petition will be filed. For international intended parents, it also addresses the child’s citizenship status, passport application, and any legal steps required in the parents’ home country.
Governing Law, Jurisdiction, and Enforceability
Choosing the governing state is one of the most consequential decisions in the entire contract. Surrogacy law varies dramatically across the country – where your surrogate lives shapes what your agreement can and cannot say.
The table below summarizes the legal landscape in the seven states where FSLG’s attorneys practice:
| State | Surrogacy Statute | Pre-Birth Orders | Contract Enforceability | Independent Rep Required |
|---|---|---|---|---|
| California | Yes – Family Code §§7960–7962 | Yes, all family types | Strongly enforceable | Yes, by statute |
| Colorado | Yes – Surrogacy Agreement Act (2021) | Yes, all family types | Enforceable per statute | Yes, by statute |
| Florida | Yes – F.S. §742.15 | Nuanced – final parentage order is post-birth; some courts issue interim pre-birth orders for hospital administrative, medical decision-making, and discharge purposes only (not a parentage adjudication) | Enforceable per statute – married couples only; single individuals and unmarried couples must use alternative legal pathways | Standard practice, but not explicitly mandated by the statutory text |
| Georgia | No comprehensive statute | Yes – pre-birth orders are routinely granted by courts statewide | Generally enforceable by case law; courts are surrogacy-friendly for all family types | Strongly recommended; required by most judges in practice |
| Oregon | Yes – Oregon Parentage Act / UPA (ORS 109.222, eff. Jan. 1, 2026) | Yes, all family types | Enforceable per statute | Yes, explicitly mandated by statute |
| Texas | Yes – Family Code §160.754 | Yes – requires judicial validation under §160.756 | Enforceable if judicially validated – married couples only; single individuals and unmarried couples face additional complexity | Practically required – courts will generally refuse to validate the agreement without independent counsel for both parties |
| Washington | Yes – Uniform Parentage Act (RCW 26.26A) | Yes, all family types | Strongly enforceable | Yes, by statute |
This table reflects general legal frameworks as of 2026 and is not legal advice. Laws change and courts vary. Consult a licensed reproductive attorney for guidance specific to your arrangement.
California has the most detailed statutory framework of any state – pre-birth orders are available to all family structures, and its courts have the deepest experience with surrogacy matters. Florida and Texas limit statutory enforceability to married couples; single individuals and unmarried couples must work with an attorney to identify alternative legal pathways in those states. The right governing jurisdiction always depends on where your surrogate lives and the specifics of your arrangement.
Communication and Relationship Expectations
A surrogacy journey is a relationship that spans nine months or more. The contract should reflect that. It addresses how often the intended parents will receive pregnancy updates, whether they may attend appointments, birth plan preferences, labor room access, and the nature of any post-birth relationship between the parties.
Getting these expectations in writing prevents misunderstandings from becoming disputes – and protects the trust that makes the whole journey possible.
Confidentiality, Dispute Resolution, and Standard Legal Provisions
The final sections of a surrogacy contract typically include:
- A confidentiality clause governing what each party may share publicly about the arrangement
- A dispute resolution mechanism – usually mediation before any litigation – to keep disagreements private and efficient
- A severability clause ensuring the contract remains valid if any single provision is found unenforceable
- Representations by both parties confirming that all information provided has been truthful and complete
Independent and Private Surrogacy Contracts
Not every surrogacy arrangement goes through an agency. Some intended parents and surrogates find each other through personal networks, online communities, or direct referrals — and proceed with what is often called a private surrogate contract or independent surrogacy agreement.
Independent arrangements require the same legally compliant contract as any agency-facilitated match. In some ways, they require more care. Without an agency, the parties forgo the built-in screening, matching support, and escrow infrastructure that agencies typically provide. If you are pursuing an independent match, engaging a reproductive attorney before making any informal commitments is the most important early step you can take.
FSLG works with independent matches as well as agency and clinic-facilitated arrangements, guiding the process from first conversation through legal clearance.
A Note on California Surrogacy Contracts
California is the most surrogacy-friendly state in the country. Its requirements are worth understanding whether or not your surrogate lives there. Under Family Code §§7960–7962:
For intended parents outside the U.S., working with a California-based surrogate is often the recommended path precisely because of this clarity. For state-specific guidance, visit our dedicated pages for:
Surrogacy Contract Checklist
Before signing any gestational surrogacy agreement, confirm the contract covers each of the following. Use this as a conversation starter with your attorney – not a substitute for one.
Frequently Asked Questions
Conclusion
A surrogacy contract is where intention becomes legal reality. It is the document that protects a surrogate’s right to fair compensation and medical respect. It is the document that protects intended parents from uncertainty about their child’s legal status. And it is the prerequisite for everything that follows the clinic, the transfer, the birth, and the birth certificate.
Getting it right is not optional. The good news is that with the right attorneys, the process is straightforward, thorough, and, in states like California, built on some of the strongest legal protections in the world.
Rich Geisler is the principal and founder of Fertility & Surrogacy Legal Group, leveraging over a decade of expertise in fertility and third-party reproduction law to help clients worldwide build their families. A dedicated advocate and trusted advisor, Rich is an active member of the American Bar Association and a fellow in the Academy of Adoption and Assisted Reproduction Attorneys.
