Yes, gestational carrier agreements are legally enforceable contracts in most of the United States. They are the essential legal framework designed to protect everyone involved, especially you, the gestational carrier.
A surrogacy contact’s enforceability depends primarily on the state where the contract is executed. Working with a qualified surrogacy agency and a reputable, experienced reproductive attorney is the single most important step you can take to ensure your contract is bulletproof.
Wondering what protections are in place for you as the surrogate? Contact a specialist today and learn how we protect you at American Surrogacy.
What Makes a Surrogacy Contract Enforceable?
The key factor is jurisdiction, or the legal authority of the state where the contract is signed and the transfer takes place. The legal landscape of surrogacy is a patchwork across the U.S. Some states have explicit laws that regulate and validate compensated surrogacy.
If a contract is deemed unenforceable, it means a court may refuse to uphold its terms, which puts the surrogate's compensation, protections, and medical care at risk.
The legal status of a surrogacy contract across the states generally falls into one of these three categories:
In these states, courts recognize and enforce the contracts, making legal protections for the surrogate clear and robust. Other states have no specific laws about surrogacy, relying on existing general contract law principles. Contracts in these states are generally enforceable as they are not prohibited, though they may require more specific legal maneuvering. A small number of states, like Louisiana, have laws that render any or all compensated surrogacy contracts unenforceable or even illegal. This is why we only work in states where your contract can be legally executed to ensure your protection.
A contract might also become unenforceable if it includes terms that compromise your well-being. This includes clauses attempting to make you financially responsible for medical expenses without reimbursement, or trying to govern your personal decisions outside the scope of the pregnancy.
Having a surrogacy attorney review the contract is essential to eliminate these risks.
What Happens If a Surrogacy Contract Is Breached?
The comprehensive nature of a surrogacy contract means that both parties agree to follow many rules, schedules, and financial terms. A breach of a surrogacy contract occurs when one party fails to meet their obligations.
Your GCA anticipates the possibility of a contract violation and outlines clear consequences and remedies.
Legal and Financial Consequences
The contract specifies the consequences of breaking your surrogacy contract, ensuring that the non-breaching party has a clear path to resolution.
If the intended parents breach the contract, for instance, by failing to place funds in escrow for your compensation or not paying your monthly allowances, the contract outlines how funds must be released to you. Your right to compensation is guaranteed by this legal document.
In rare and serious cases, the contract allows for a lawsuit if the agreement is breached. This means a court may require the person who broke the agreement to follow the contract or pay money to cover the losses.
The Role of the Surrogacy Agency
Our role at American Surrogacy is to put you in the best situation possible. Through clear communication and support, we address and resolve minor disagreements or delays long before they escalate into a serious contract dispute.
How Surrogacy Contracts Protect Surrogates
Rest assured, the contract is the legal document created for your protection, balancing the rights and responsibilities of both parties while ensuring your safety, well-being, and financial security.
The agreement protections fall into several critical areas:
The contract dictates the precise medical steps involved and confirms your complete right to make all bodily decisions during the pregnancy, in consultation with your medical professionals. This ensures that the intended parents cannot force you to undergo procedures that are not medically necessary or violate the agreed-upon treatment plan. Your agreement ensures full coverage for all surrogate-related expenses, including medical costs, travel, and your surrogate compensation package. The contract explicitly details the base compensation, monthly allowances, and any additional fees, such as for invasive procedures or lost wages. This is a non-negotiable legal obligation of the intended parents. The contract guarantees that all medical costs related to the pregnancy are covered, and it outlines provisions for surrogate life insurance and disability insurance in case of rare complications, such as an unplanned peripartum hysterectomy. The contract explicitly requires the intended parents to complete the pre-birth or post-birth legal process to establish parentage. This ensures you are never legally responsible for the child, which is a key protection for you and your family.
Can You Back Out of a Surrogacy Contract?
It’s common for surrogates to want clarity on what happens if they choose not to continue after signing a contract. Here’s how surrogacy agreements typically handle that situation.
The Right to Withdraw Before Signing
You have complete freedom to change your mind before the legal contract is finalized. You can withdraw from the surrogacy process at any point before the agreement is fully executed and signed by all parties.
Importantly, there are no contract violation penalties at this stage. You have the freedom to change your mind after matching with intended parents or even after initial consultations with your attorney.
Limitations After the Contract is Signed
Once the contract is legally executed, it becomes a binding agreement. Legally, a surrogate cannot be compelled to carry a pregnancy against her will, even after a contract is signed and a transfer has occurred. However, backing out after the contract is signed is considered breaking the agreement.
Financial Consequences of Early Withdrawal
The contract clearly dictates the financial terms if you choose to terminate the journey early. For instance, you may be required to return any base compensation payments already received, but the intended parents typically remain responsible for all medical and legal expenses incurred up to that point.
Compassionate Support for Difficult Decisions
If you reach this difficult point, we provide compassionate, unbiased support to help guide you through the next steps, working with your attorney to navigate the legal process respectfully.
The structure is designed so that both parties are fully committed, which is why the legal process is a mandatory step before any medical procedure begins.
How Are Contract Disputes Resolved in Surrogacy?
Fortunately, contracts are specifically drafted to handle conflict outside of a lengthy legal battle.
The three primary methods used to resolve conflicts are:
- Mandatory Mediation Clause: Nearly all comprehensive agreements include a mandatory mediation clause. This means if a dispute arises that cannot be solved by the parties themselves, they must first try mediation. Mediation is a private, cooperative, and non-binding process where a neutral third-party mediator helps facilitate communication and find a mutually agreeable solution.
- Arbitration: Less common than mediation, some contracts may include an arbitration requirement. Arbitration is also private but involves a neutral third party who hears evidence and issues a binding decision.
- Agency-Facilitated Resolution: Before any formal mediation or arbitration, your agency specialist works as an impartial guide. We help resolve miscommunications, such as delays in expense reimbursement or scheduling conflicts, through direct intervention, often solving the conflict quickly and quietly.
How We Help You Find the Right Surrogacy Attorney
The importance of having your own, independent legal counsel cannot be overstated. An experienced reproductive attorney is your voice and your ultimate safeguard, protecting the enforceability of your agreement. Here’s how we protect you:
Connecting You with Experts
American Surrogacy connects you with highly experienced reproductive attorneys who specialize in this specific, niche area of law. They are licensed in your state to ensure compliance with local surrogacy laws.
Why Local Legal Knowledge Matters
Surrogacy legal procedures and the likelihood of contract enforcement are deeply tied to local laws. An attorney licensed in your state knows the jurisdictional requirements to ensure your contract is valid, enforceable, and fully protects your rights. This local legal knowledge protects enforceability and significantly reduces the potential for future stress or a major contract dispute.
Independent Representation
Your attorney represents only you, ensuring that your interests and concerns are prioritized throughout the legal phase. This independent review is a cornerstone of a protective, enforceable surrogacy contract.
We’ll Help You Get Clear Answers About the Legal Process in Your State
The legal process is a mandatory step in surrogacy, and it is a point of strength, not a hurdle. It ensures that the incredible commitment you are making is recognized, respected, and legally backed by a comprehensive agreement.
Ready for peace of mind? Speak with a specialist today and get immediate answers about your contract's legal protections.