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Once you’ve found a match, it’s natural to want to move straight to the medical steps. But before the embryo transfer can happen, you have to navigate the legal "green light" phase.
The surrogacy contract is the roadmap that protects your rights, your surrogate’s health, and your future child’s security. Here is exactly what to expect during the drafting process and how long it usually takes to get to the finish line.
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Understanding the Surrogacy Contract Drafting Phase
Surrogacy contract drafting is the legal process of turning your match terms into a written agreement between intended parents and a surrogate. The contract is reviewed by separate attorneys for each party and must usually be completed before the fertility clinic will move forward.
Your specialized surrogacy attorneys write a contract tailored to your specific journey, covering everything from health insurance to what happens in the delivery room.
To ensure the highest level of fairness and compliance with state laws, the process requires:
- Independent Counsel: You and your surrogate will each have your own attorney.
- Expert Review: Your lawyer ensures the draft reflects your intentions, while her lawyer ensures she is fully informed of her rights and obligations.
When Does the Contract Phase Happen?
The contract phase usually begins soon after you are officially matched with a surrogate and both parties are ready to move into legal review..
It is the mandatory bridge between matching and the clinic.
Fertility clinics cannot move forward with medical procedures or embryo transfers until they receive "legal clearance"—meaning the contract is signed and the attorneys have notified the clinic.
Key Components of a Surrogacy Contract
A good contract leaves no room for assumptions. It addresses the "what ifs" long before they become a reality. During the review process, your legal team will make sure the following are written in stone:
Define how and when the surrogate will be paid, including which expenses will be reimbursed. Outline the surrogate’s informed agreement to medical procedures and how her health information may be shared with the intended parents. Explain where the birth will occur and who will be present during delivery. Specify which state laws will govern the surrogacy agreement. Describe the insurance coverage in place and who's responsible for the associated costs. Include clear terms for how potential medical complications or pregnancy reductions will be handled. Cover any preferences or requests, such as providing breast milk or adhering to certain dietary guidelines. Define how both parties will communicate during the process.
How Are Surrogacy Payments Handled?
Financial transparency is the best way to prevent friction in your relationship with your surrogate. The contract explicitly outlines the compensation structure, including base pay and contingency fees (like multiples or C-sections).
To protect both parties, funds are managed through a secure escrow account. American Surrogacy coordinates these services so that:
- Your surrogate is paid accurately and on time.
- You have a clear, documented record of every dollar spent.
- All potential medical and drafting costs are accounted for upfront.
How Long Does the Drafting Phase Take?
On average, this phase takes 1-2 months. The timeline usually moves in these stages:
- Week 1: Your attorney prepares the first draft.
- Week 2: The surrogate and her attorney review the document and suggest any changes.
- Weeks 3-4: Final negotiations occur, the document is polished, and everyone signs.
Navigating Disagreements During the Process
It’s normal to feel nervous if your surrogate’s attorney asks for changes to the draft.
In most cases, these are just clarifications to ensure everyone feels safe. If you hit a sticking point, your agency and attorneys act as mediators to find a solution that keeps the match strong without compromising your legal safety.
Some common changes include lost wages compensation, medical procedure compensation, and things like travel restrictions or breast milk shipping.
How the Contract Protects Your Parental Rights
One of the main goals of the contract phase is to support the legal steps needed to establish intended parents’ rights under applicable state law. In many states, the agreement is part of the documentation used in the parentage process, but the exact procedure varies by jurisdiction.
In many states, the parentage process uses a Pre-Birth Order (PBO), which tells the hospital and the state who the intended parents are before birth, but some states have a process that takes place after the baby is born.
By following state-specific legal requirements, you can ensure there is no ambiguity about your family’s security when you leave the hospital.
Want to learn more about surrogacy laws in your state? Explore our state-by-state surrogacy guide to see how enforceability applies where you live.
Feel Protected and Prepared with American Surrogacy
Knowing what to expect is the best way to reduce the anxiety of the legal phase. With American Surrogacy by your side, you don’t have to worry about the fine print. We provide:
Your agency will connect you with trusted legal professionals who are experienced in surrogacy law. At American Surrogacy, we partner with members of the Academy of Adoption and Assisted Reproduction Attorneys. We can help facilitate communication and the exchange of documents between parties. Our team ensures everyone stays informed and aligned throughout the process. Your agency will assist in resolving questions or concerns during the contract negotiation phase. With American Surrogacy, you have a knowledgeable team ready to help navigate sensitive conversations. Agencies help ensure all legal documents are complete and that your interests are protected. We take the time to double-check every detail so you can move forward with confidence.
Ready to move from matching to legal security? Reach out to American Surrogacy today to find specialized attorneys in your state and begin the drafting phase with confidence.