Understanding Surrogacy Contracts

A surrogacy contract is a legal agreement that creates clarity, outlines legal rights, responsibilities, and expectations for intended parents and surrogates. A surrogacy contract is more than paperwork; a well-drafted surrogacy contract provides a clear framework for preventing misunderstandings and offering protection throughout this complex journey to parenthood.

A surrogacy contract safeguards important legal milestones, including establishment of parental rights at the appropriate time. Because every surrogacy arrangement is unique, it’s imperative that you work with a knowledgeable attorney who understands the nuances of reproductive law.

Why Surrogacy Contracts Are Crucial

Regardless of the relationship dynamics in a surrogacy arrangement, entering into a surrogacy contract is a fundamental step in this process for intended parents and surrogates.

In many states, entering into a surrogacy contract is a legal requirement and a prerequisite for fertility clinics to proceed with an embryo transfer. Having a valid surrogacy agreement in place allows the intended parents to establish their parentage so they are the legal parents at birth. For surrogates, the contract ensures fair compensation, appropriate insurance and medical coverage, and legal protection from having any parental rights to the child.

A well drafted surrogacy agreement will help prevent future misunderstandings by clearly outlining key factors like compensation, medical decisions, communication, parental rights, and more. Even in the most amicable arrangements, a detailed surrogacy contract can help ensure that all parties are on the same page from the very beginning.

Whether your arrangement is altruistic or compensated, independent or through a surrogacy agency, a thoughtfully prepared surrogacy contract helps protect all parties throughout the surrogacy journey.

When Are Surrogacy Contracts Created?

Surrogacy contracts are drafted, negotiated and finalized by your assisted reproduction attorney after intended parents and surrogates have agreed to work together and often after initial medical and psychological screenings have been completed. The timeline in completing your surrogacy contract is critical, as fertility clinics will not proceed with an embryo transfer without a fully executed contract and legal clearance.

Once the intended parents and the surrogate agree to move forward together, each party will retain their own legal counsel. The attorneys will work together to draft, review and finalize a surrogacy agreement, making sure it reflects everyone’s intentions and addresses key legal and logistical details. This process may take several weeks, depending on how complex the arrangement is and how quickly both parties can review and finalize the terms.

Taking time to carefully complete the surrogacy agreement helps guarantee that everyone enters the medical phase of the journey with clarity, confidence, and legal protection.

What Is Included in a Surrogacy Agreement?

A well-drafted contract will be comprehensive addressing a wide range of topics to ensure all parties are informed, protected and prepared for any unexpected outcomes. Below are some of the key elements typically included in a surrogacy agreement:

 Intent, Rights, and Obligations of the Intended Parents

The surrogacy contract will outline the intended parents' legal intent to assume full parental rights and responsibilities to the child, and defines their obligations to the surrogate throughout the journey, including financial support, involvement in the process, and post-birth commitments.

 Intent, Rights, and Obligations of the Surrogate

The surrogacy agreement will commonly address the surrogates obligations to attend medical appointments, follow medical guidance, and maintain open communication with the intended parents regarding the pregnancy. The surrogate agrees to carry a pregnancy on behalf of the intended parents and to relinquish any presumptive parental rights.

 Trust or Escrow Account for Compensation and Reimbursements

Detailed provisions will be included in the surrogacy agreement regarding the surrogate’s compensation and reimbursement for expenses (medical, travel, insurance, maternity clothing, lost wages, etc.). A well-drafted surrogacy agreement will include language regarding the establishment of an escrow or trust account managed by a third-party ensuring timely payments to the surrogate.

 Communication Guidelines During Pregnancy

Clear expectations around communication help foster a respectful and supportive relationship. Some intended parents and surrogates prefer frequent updates and close contact, while others agree on more formal or occasional check-ins. The contract ensures those preferences are respected.

 During Pregnancy

Surrogates agree to maintain certain lifestyle practices, such as abstaining from consuming alcohol, avoiding high-risk activities, and following dietary recommendations. These expectations are not one-size-fits-all and should be discussed openly and reflected in your surrogacy agreement.

 Involvement in Medical Decisions

The contract will clarify how medical decisions are handled, especially in complex or time-sensitive situations. This may include choices around selective reduction or termination. While the surrogate retains bodily autonomy, the agreement helps set expectations for how these sensitive scenarios will be approached.

 Handling Risks, Liabilities, and Unforeseen Outcomes

Surrogacy agreements should account for potential complications such as failed embryo transfers, miscarriage, stillbirth or medical emergencies. A well-drafted surrogacy contract addresses these scenarios and more.

 Insurance Coverage

Details regarding health insurance coverage for the surrogate and any supplemental pregnancy-related policies will be included in your surrogacy agreement. The surrogacy agreement will also address an accidental death policy for the surrogate and clarify what coverage the intended parents will have in place for their newborn child immediately after birth.

Drafting a surrogacy contract is more than a legal formality; it's a foundational step in safeguarding intended parents and surrogates. Because every surrogacy journey is unique, it is important to engage with an attorney who has a specialized understanding of assisted reproductive law. An experienced fertility attorney will draft a contract that is meticulously tailored to your specific circumstances and will provide unparalleled clarity, peace of mind, and robust protection throughout every stage of this journey.

For international intended parents, there are additional legal layers to consider that require expert attention. The right legal team will help guide you through nuanced issues such as parentage, citizenship, and the cross-border recognition of your parental rights.

 Can intended parents or surrogates terminate a surrogacy agreement?

Most surrogacy agreements include language that allows a party to terminate a surrogacy agreement under certain circumstances; however, there could be legal and/or financial consequences.

 What if I find my own surrogate?

If you match independently with a friend, family member or someone you met in another way, you can pursue a surrogacy arrangement with them. However, even in these cases, a formal surrogacy contract is essential to protect all parties and ensure the agreement complies with local laws. In addition to that, legal representation for both parties is still necessary.

 Do I need a contract for altruistic surrogacy?

Yes. Even if no compensation is being exchanged, a surrogacy contract is still required. Altruistic surrogacy involves the same legal, emotional, and medical considerations as compensated arrangements, and a contract ensures that everyone’s rights and responsibilities are clearly defined.

 Are surrogates compensated in the event of a miscarriage?

Most surrogacy contracts include compensation language in the event of a miscarriage, as well as reimbursements for any related medical or travel expenses. The agreement should clearly outline how compensation is structured in case the pregnancy does not progres

Can I copy a sample surrogacy contract or template?

While templates can be helpful for general understanding, they’re not designed to reflect the complexities of your individual surrogacy arrangement, nor do they account for the specific legal requirements in your state (or country). Due to the unique circumstances of each surrogacy arrangement, it is strongly advised against using a sample contract.

A surrogacy contract that works for one situation could leave serious gaps in another, especially when it comes to establishing parental rights and navigating unexpected medical situations. Attempting to draft your own agreement or using a general family law attorney may seem like a cost-saving measure; however, it often leads to confusion, missed protections, and legal complications. This is why working with an experienced fertility attorney is so important. At Klein Fertility Law, we take the time to understand your specific circumstances and build a contract that not only meets legal requirements and industry standards but also protects all parties.

The Role of Attorneys in Drafting Surrogacy Contracts

Fertility law is a specialized field, and drafting a surrogacy contract requires far more than basic legal knowledge. A surrogacy attorney plays a critical role in protecting your rights, clarifying expectations, and making sure your agreement is legally sound and enforceable, especially when it comes to establishing parentage and avoiding potential disputes.

Each party in a surrogacy arrangement, the intended parents and the surrogate, should have their own legal counsel. Attorneys work together to draft, negotiate and review the surrogacy contract, ensuring that both sides are represented fairly and that all legal, medical, and emotional considerations are addressed. Having experienced legal support means you can move forward through your surrogacy journey with confidence, knowing that every detail has been thoroughly thought through and accurately documented.

 Can intended parents or surrogates terminate a surrogacy agreement?

Most surrogacy agreements include language that allows a party to terminate a surrogacy agreement under certain circumstances; however, there could be legal and/or financial consequences.

 What if I find my own surrogate?

If you match independently with a friend, family member or someone you met in another way, you can pursue a surrogacy arrangement with them. However, even in these cases, a formal surrogacy contract is essential to protect all parties and ensure the agreement complies with local laws. In addition to that, legal representation for both parties is still necessary.

 Do I need a contract for altruistic surrogacy?

Yes. Even if no compensation is being exchanged, a surrogacy contract is still required. Altruistic surrogacy involves the same legal, emotional, and medical considerations as compensated arrangements, and a contract ensures that everyone’s rights and responsibilities are clearly defined.

 Are surrogates compensated in the event of a miscarriage?

Most surrogacy contracts include compensation language in the event of a miscarriage, as well as reimbursements for any related medical or travel expenses. The agreement should clearly outline how compensation is structured in case the pregnancy does not progres

Why Choose Klein Fertility Law

When it comes to building your family through surrogacy, the legal foundation matters. At Klein Fertility Law, we’ve been guiding intended parents through surrogacy agreements since 1987. Our decades of experience in reproductive law mean we know how to draft clear, comprehensive contracts that reflect your values.

Whether the intended parents and surrogate are known to each other or have been matched through a surrogacy agency, in the U.S. or abroad, our legal team is here to protect your rights and make the process as smooth and secure as possible. With Klein Fertility Law, you don’t just get a contract – you get a legal partner who understands the emotional and practical realities of family building.