What You Need to Know About Surrogacy Contracts & Laws

What You Need to Know About Surrogacy Contracts & Laws


One of the most important aspects of a surrogacy journey is the legal procedure and the surrogacy laws involved. Because any kind of assisted reproduction can be tricky, protecting your rights and the rights of your unborn child is paramount to ensuring your surrogacy process is completed smoothly and without any legal snags.

After you are matched with a surrogate here at American Surrogacy, you will need to choose an experienced law professional to handle the different parts of your surrogacy legal issues, including surrogacy contracts and any pre-birth orders needed to establish parentage.  While we can provide you options for experienced lawyers and attorneys in your state, the decision will ultimately be up to you.

Before you choose a lawyer, however, it’s helpful to understand just what the gestational surrogacy laws require in your state. Laws will vary by state but, in general, it’s recommended you complete a couple of legal steps before you start the surrogacy process with a surrogate.

You can read about these steps below but, remember, you can call us anytime at 1-800-875-2229 with any questions you have about the surrogacy process. We can also refer to you legal resources for any questions you have about whether or not surrogacy is legal in your state.

Surrogacy Contracts

After you find a surrogate to carry your child, the first thing you’ll need to do is complete a surrogacy agreement or contract, which will protect both you and the surrogate from any issues that come up during the surrogacy process.  To complete a surrogacy contract, you and the surrogate will both need separate lawyers.

Your surrogacy arrangement will likely focus on two areas:

Financial Compensation: Depending on the laws on surrogacy in your state, your surrogate will be provided compensation for carrying your child. This amount will be agreed upon ahead of time, as well as the amount of money that may be additionally provided for pregnancy-related expenses like maternity clothes, hospitals bills and more.

This step is also important in determining whether (and how much) the surrogate’s insurance will cover her pregnancy expenses and what kind of reimbursement you may have to provide as intended parents.

Again, because there can be strict laws about compensation, you need to have an experienced attorney to help you draft this surrogacy agreement to avoid any criminal penalties from unlawful payment.

Social Requirements: This part of the surrogacy agreement will lay out expectations for both you as the intended parents and the surrogate. It will likely cover such things as who will attend doctor’s appointments with the surrogate and who will attend the birth of your child, as well as the responsibilities of the surrogate when she’s pregnant with your child (abstaining from drug and alcohol use, exercising on a regular basis, etc.) It will also address the surrogate’s rights when she’s pregnant to make sure that healthy boundaries are maintained throughout.

Whether or not these surrogacy contracts are legally enforceable will depend on the laws on surrogacy in your state. Therefore, it’s important that there is a mutual respect and understanding between you and your surrogate throughout the process, especially in the case that a surrogate contract will not hold up in court.

Again, at American Surrogacy, we can refer you to experienced legal professionals in your state, but it’s important that you do extensive research to make sure they are up-to-date on recent surrogacy acts and laws before selecting them as your legal counsel.

Pre-Birth Orders

Another important part of the surrogacy legal process is to protect your rights as the legal parent of your child. In some states, because the child is being born to a different woman, she may be legally assumed to be the mother of that child — even though she shares no biological relationship with them.

To help smooth out the process of transferring parental rights from a surrogate to the intended parents, some states may allow you to complete pre-birth or parentage orders. Essentially, this order expedites the legal steps that would normally be taken after birth (like stepparent adoption) to secure a parent’s legal rights to their child. It will also allow your baby to be directly discharged to you after they’re born.

The pre-birth order process usually begins about seven months into the surrogate’s pregnancy. While documentation requirements may vary from state to state, in general, your attorney will need a statement from the physician who transferred the embryos, social documents like mental/medical evaluations and a statement from the surrogate family that they’ll relinquish any legal rights they have to the child. Once the baby is born, the paperwork will just need to be finalized to transfer custody of the child to you.

In some states, even if you’re biologically related to your child, you may not be able to complete a pre-birth order. Instead, you might need to complete a stepparent adoption or a full adoption to protect your parental rights to your child. These are fairly simple adoptions to complete, usually with no need for background checks or clearances, and your surrogacy lawyer can help you complete these processes as soon as possible after your child is born.

No matter what your situation, your attorney will help you understand the legal steps you need to take to ensure your parental rights to your child are protected, whether it’s through a pre-birth order or a post-birth adoption. While each state has different laws on surrogacy, different judges within those states will be more accommodating of surrogacy arrangements than others. If you’re concerned about the surrogacy laws in a certain state, you should speak to a surrogacy lawyer there, as they may work with a more lenient and liberal judge when it comes to surrogacy. In other words, you shouldn’t let a state’s laws concerning surrogacy dissuade you from choosing a surrogate living there.

American Surrogacy is a great example of this. While the state laws in Kansas aren't particularly friendly, we've established relationships with many lawyer throughout the Midwest who are more liberal in the application of these laws — making surgoacy in the Midwest an absolute possibility for any intended parent or surrogate who works with us from those central states.

What American Surrogacy Recommends

Unlike some agencies, American Surrogacy does not have a list of attorneys that you have to work with through our agency. However, we will provide references to experienced lawyers in your state who are part of the American Academy of Assisted Reproductive Technology Attorneys and help you decide what aspects of a law firm are most important to you. AAARTA is a great place to start researching lawyers, as they are credentialed members who you can be sure are up-to-date on the latest assisted reproduction laws and statutes. We highly recommend you select an attorney who is a member of AAARTA, as these professionals are usually the best in their fields.

Before you decide on an attorney to handle the legal issues of your surrogacy, however, there are some questions you should consider asking, including:

  • Are you a member of AAARTA?

  • How long have you worked in the area regarding the legality of surrogacy in your state?

  • How many surrogacy cases do you handle a year?

  • Have you been involved in any notable surrogacy court cases in your state?

  • What does your typical surrogacy contract process look like? What will be covered in that surrogacy agreement?

  • What happens if we live in a different state than the gestational carrier? How will you manage those different gestational surrogacy laws?

  • What is your fee schedule like?

We highly recommend talking in depth with attorneys you’re considering for the legal implications of your surrogacy. This choice is a critical part of ensuring that your surrogacy process is completed as smoothly as possible. Your fertility specialist will also be available to give you advice on selecting a surrogacy lawyer to help you decide what professional is right for you.

Remember, if you have questions about the surrogacy process and how American Surrogacy plays into that, you can contact us at 1-800-875-2229 or contact us here online.