Surrogacy Contracts

Why They're Necessary, What They Include and More

Surrogacy contracts are necessary — no matter the type of surrogacy. Here's why a legal surrogacy agreement is needed to protect everyone's best interests, what goes into a typical contract and how to complete yours.

The completion of surrogacy contracts is one of the most important steps in your journey. Here’s what you should know about this document:

Who Should Have a Contract and Why

Everyone who enters into a surrogacy agreement should have a formal, legal contract. Here’s why:

No matter if you just met your surrogacy partner for the first time, or if your surrogate is your best friend or your sister, a contract completed by an attorney is necessary. Not only does it legally protect everyone involved (including the future baby), a properly executed surrogate agreement can:

  • Help paperwork and orders from a judge be processed more smoothly once the baby is born
  • Prevent legal, financial, or personal disputes from arising in the future
  • Give everyone involved an opportunity to reflect on potential scenarios they may not have considered yet, create plans for possibilities and decide how they’d want to respond in the event of unforeseen circumstances
  • Serve as a useful roadmap for the surrogacy journey ahead

Whether you’re creating a gestational surrogacy agreement or a traditional surrogacy contract, you should always work under the guidance of individual attorneys.

When Your Contract Must Be Finalized

A surrogacy contract is created after you find your surrogacy partner and before you begin any medical steps together. The contract must be finalized before you take any medical actions together in your surrogacy process, to ensure that everyone is protected before you make any move toward a pregnancy.

What Your Contract Should Include

While everyone’s surrogacy contracts are customized to their individual situations and personal wishes, there are always at least four basic topics that you should look for in a surrogate standard contract:

1. Finances

In paid surrogacy contracts, financial compensation must be outlined in detail. This can be a little awkward to talk about with your surrogate, but your American Surrogacy specialist and your attorney will mediate these conversations. In your surrogacy agreement, you’ll finalize compensation amounts, payment schedules and more based on the laws within the state.

Again, your attorney and specialist will handle much of this, as the experts on local laws regarding compensation.

2. Social Roles

While finances are a little more cut-and-dry, the social aspect of your surrogacy arrangement is typically based on your preferences. You’ll be asked to consider:

  • How often you’d like to hear from your surrogate
  • If you’d like to attend doctor’s appointments (which appointments, who will be there and more)
  • If you plan on being there for the birth of the baby
  • If you’d like your surrogate to pump breast milk for your baby
  • If there are any special requests you’d like to make of your surrogate, like playing a recording of your voice for the baby during pregnancy
  • What kind of relationship you’d like to share with your child’s surrogate in the future

These are often little more fluid, because relationships naturally evolve over time, but can be helpful topics to discuss with your surrogate as you begin your journey together.

3. Risks and Responsibilities

Your American Surrogacy specialist and attorney can help walk you and your surrogate through all the potential risks involved in surrogacy, as well as the responsibilities that you would both be asked to assume. These typically include:

  • Your agreement to assume custody of your child
  • Your affirmation that your surrogate may not get pregnant and that unforeseen medical complications are possible in any pregnancy, and that you’d still be responsible for her care
  • Your surrogate’s agreement to the potential risks involved in IVF, embryo transfer and pregnancy
  • Your surrogate’s agreement to maintain a healthy lifestyle throughout the process
  • And more

Most surrogate pregnancies proceed smoothly, but it’s important that each party is made aware of potential risks and what they are responsible for. These are standard for all surrogate contracts, and you’ll both be made aware of the risks and responsibilities in surrogacy by your specialist. 

4. “What-If” Scenario Plans

When you’ve legally confirmed that you’re aware of potential risks, you’ll make plans for what you would want to do in the event of potential scenarios. Again, most surrogacy arrangements and resulting pregnancies go smoothly, but it’s vital that you have plans in place for a number of possible (if rare) situations.

You’ll be asked to consider what you would want to do in the event of:

  • Embryo transfer failure — how many attempts are you all willing to make
  • Medical complications with your surrogate or your baby
  • A multiple pregnancy
  • Selective reduction and termination, if that ever became necessary to consider
  • Miscarriage
  • And other variables and “what-ifs”

These are often situations that nobody wants to think about, but they’re important for you to discuss with your surrogate so you would have plans in place within your surrogacy legal contract in the unlikely event that something out of the ordinary happens.

Why You Should Never Have an Independent Contract

Particularly for those who are pursuing an independent surrogacy, it can seem easy enough to print off a sample surrogacy contract from online and just use that. However, proper legal representation for both parties is not something you can afford to skip.

Template surrogacy contracts rarely cover everything they should, and without the appropriate legal counsel, that contract may not even be legally binding. Surrogates, intended parents and children are left unprotected without formal and legally binding intended parent and surrogate mother contracts completed by a reputable attorney.

For the safety of the baby at the heart of your surrogacy journey, you should extend the effort to secure the correct surrogacy forms and contracts. Talk to your attorney about gestational surrogacy contracts or traditional surrogacy contracts, or contact American Surrogacy at 1-800-875-BABY (875-2229) now to get started.