Surrogacy agreements in the United States involve some of the highest financial stakes and most complex legal issues of any personal contract. Total costs typically range from $100,000 to $200,000+, and the legal landscape varies enormously by state — from full enforcement in California to criminal prohibition in a handful of states. Both the intended parents and the gestational carrier face significant risks if the agreement isn't properly drafted and enforceable in the relevant jurisdiction. Getting the legal framework right from the start is not optional — it's essential.
What is a Gestational Carrier?
A gestational surrogacy agreement is a contract between intended parent(s) and a gestational carrier (a woman who carries a pregnancy created from the intended parents' or donors' genetic material). The agreement addresses compensation (base fee, expense reimbursement, medical costs, life insurance), the carrier's obligations during pregnancy, parentage establishment, medical decision-making authority, selective reduction provisions, and termination conditions. Unlike 'traditional' surrogacy, gestational surrogacy involves no genetic link between the carrier and the child, which simplifies parentage determinations in most states.
Red flags to watch for
In states like California, Connecticut, and Nevada, intended parents can obtain a pre-birth order establishing legal parentage. Without this, the carrier may be listed as the legal mother at birth, creating custody risks.
Many health insurance policies exclude surrogacy-related claims. If the agreement doesn't secure a surrogacy-specific or comprehensive insurance policy for the carrier, a complicated pregnancy or premature birth could result in hundreds of thousands of dollars in uncovered medical costs.
In states that distinguish between 'reasonable compensation' and 'baby selling,' a compensation structure that ties payment to the delivery of a child (rather than the carrier's time, risk, and inconvenience) could make the agreement unenforceable.
Both the ASRM and most state laws require or strongly recommend that the carrier have her own independent attorney, paid for by the intended parents. Without this, the agreement may be challenged as unconscionable.
Reasonable health requirements are expected, but overly intrusive restrictions (dictating diet in extreme detail, restricting travel, controlling social activities) can make the agreement unconscionable and damage the relationship.
Your legal rights
Surrogacy law is entirely state-based, with no federal framework. Approximately 10 states have surrogacy-friendly statutes (California Fam. Code § 7960-7962; Nevada NRS 126.500-810; Connecticut Gen. Stat. § 7-36a). Several states prohibit compensated surrogacy (Michigan, Louisiana). Others have no statute but allow it under case law or attorney general opinions. The Uniform Parentage Act (2017) includes provisions for gestational surrogacy agreements (Article 8), adopted by several states. Key requirements in most surrogacy-friendly states include: written agreement before embryo transfer, independent legal counsel for both parties, medical and psychological screening, and court approval or parentage order.
Questions to ask before you sign
- 1Is gestational surrogacy legal and enforceable in our state (and the carrier's state if different)?
- 2Can we obtain a pre-birth parentage order, and what is the process?
- 3What insurance coverage does the carrier have, and does it cover surrogacy?
- 4Does the carrier have independent legal counsel, and who pays for it?
- 5What happens if the carrier has a medical complication — who bears the cost?
- 6What are the provisions if the pregnancy results in multiples, and how are selective reduction decisions handled?
- 7What happens if either party wants to terminate the agreement before embryo transfer?
Disclaimer: This guide is for educational purposes only and does not constitute legal advice. Contract law varies by jurisdiction and individual circumstances. Always consult a qualified legal professional before making decisions based on this information.