Surrogacy Legal Contracts: A Step-by-Step Guide to the Agreement Process

At the legal contract stage, you and the intended parents, each with your own attorney, negotiate and sign a gestational surrogacy agreement. It comes after screening and matching and before any embryo transfer. Getting from hiring an attorney to a signed agreement commonly takes an estimated four to eight weeks. A pre-birth order follows later in pregnancy, in states where one is available.

You may have read enough to know a contract is involved and now want to know what it actually requires of you. This page goes through it in order: what has to happen first, who drafts what, what gets negotiated, when you sign, and what the contract cannot do.

Surrogate Compass is an independent platform that helps women considering surrogacy understand eligibility, compensation and the process, and connects candidates with agencies. We do not draft, negotiate or sign contracts. Agencies screen, match and pay. Attorneys draft and review the agreement. This page describes a legal process. It is not legal advice for your situation, and a licensed reproductive attorney reviewing your actual agreement is the person who advises you.

Before the Contract: What Has to Be in Place First

Several things normally have to be finished before anyone writes a draft.

• Medical clearance from the fertility clinic. The IVF clinic's physician reviews your records and evaluates you. The surrogacy attorney does not decide this. The surrogate screening process explains what that evaluation involves.
• Psychological evaluation. A psychological evaluation is typically required for you and for the intended parents before drafting begins.
• A completed match. The contract names specific parties, so it cannot be drafted until you are matched, through an agency or independently.
• Independent legal counsel on both sides. Each side has its own attorney before drafting starts.

Passing an agency's preliminary eligibility check is not the same as being qualified. Medical, psychological and legal screening decide that, and none of it is a formality.

Step 1: Each Party Retains Independent Legal Counsel

You have your own attorney. The intended parents have theirs. The same attorney cannot represent both sides, because your interests and theirs are not identical. Lawyers' professional conduct rules on conflicts of interest are one reason. The structure of surrogacy law is another.

Your attorney represents you only. They read the draft, explain each provision to you, and negotiate on your behalf. The intended parents' attorney cannot do this for you, however helpful they are.

Independent counsel also affects whether the agreement holds up. California's gestational surrogacy statutes, Cal. Fam. Code § 7960 et seq., include requirements about independent legal representation. Other states that regulate surrogacy by statute often have similar requirements, but rules differ from state to state.

Who pays your attorney. In many arrangements the intended parents cover your legal fees as part of the overall arrangement, and this is a normal term, not a favour. It is still a term. Ask your agency or programme who pays for your attorney and whether there is a cap, and have it confirmed in writing. Comparing how to choose a surrogacy agency covers how programmes handle this differently.

Preliminary documents. Letters of intent, pre-match agreements and other preliminary documents can carry legal obligations. Surrogates who receive such documents before a full agreement is in place typically benefit from attorney review before signing.

Many attorneys who practise in this area belong to professional groups such as the Academy of Adoption and Assisted Reproduction Attorneys (AAAA) or the American Academy of Assisted Reproductive Technology Attorneys (AAARTA). Membership tells you about their field of practice. It does not replace asking about their experience with gestational agreements in your state.

Step 2: The Intended Parents' Attorney Drafts the Gestational Surrogacy Agreement

The intended parents' attorney typically prepares the first draft. The document is usually called a Gestational Surrogacy Agreement (GSA). "Gestational" means you have no genetic connection to the child. The embryo is created from the intended parents' or donors' genetic material. Traditional surrogacy, where the surrogate is also the genetic mother, raises different and more complex legal questions and is handled differently.

A GSA commonly addresses:

• Compensation and expense reimbursement, including the payment schedule.
• Medical decision-making during pregnancy, and who is consulted about what.
• Selective reduction and termination. These are among the most sensitive provisions in the whole agreement and need careful negotiation.
• Life and disability insurance, including whether a policy is required, who pays and how long it runs.
• Contact and communication expectations during pregnancy and around the birth.
• Miscarriage, multiples and medical complications: what happens to payments and obligations if any of these occur. The guide to pregnancy complications and surrogacy covers the medical side.
• Parental rights and the pre-birth order process.

The contract governs the relationship and each side's responsibilities. It does not guarantee a pregnancy, a healthy birth or any other outcome.

State law decides how much of the agreement a court will enforce. California has a detailed statutory framework for gestational surrogacy. Other states range from comparable frameworks to restrictive or hostile ones, so where an agreement is based and where you live both matter.

Step 3: The Surrogate's Attorney Reviews and Negotiates

Your attorney reads the full draft and marks provisions that need clarifying, changing or adding. You then go through it together, in plain language, before anything goes back to the other side.

The compensation schedule. Agreements typically itemize base compensation, any monthly allowance, and specific reimbursements. Examples include maternity clothing, travel to appointments, lost wages if a physician orders bed rest, and childcare during appointments. Which items appear, at what amounts and on what schedule varies by programme and is negotiated line by line. No figure here is standard. The guide to comparing surrogate compensation explains why an advertised rate is rarely the full picture.

Selective reduction and termination. These are among the most frequently negotiated clauses. Your values and the intended parents' wishes have to be put into words both sides accept. Your attorney's job is to make sure the wording reflects what you actually agree to.

Life and disability insurance. Some agreements require the intended parents to obtain a life insurance policy on you for the pregnancy, and some address disability cover. These are negotiated terms, not automatic ones. Ask whether a policy is required, who pays for it and when it ends. Attorneys reviewing these agreements commonly verify that any required insurance policy is in place and active before the agreement is executed.

Your health insurance. Agreements often address whether your own health plan will be used for the pregnancy and who covers costs it excludes. This is a point for your attorney to review against your actual policy.

The review-and-negotiation phase is commonly estimated at two to six weeks, depending on how complex the agreement is and how quickly both sides respond. Several rounds of redlines, marked-up drafts passed back and forth, are normal. They do not mean the arrangement is failing.

Step 4: Both Parties Sign the Finalized Agreement

Once both attorneys agree the draft is final, everyone signs. That usually includes you, your spouse or partner if you have one, and the intended parents. Your partner's signature matters because, depending on state law, a spouse can otherwise have a presumed legal connection to a child born during the marriage.

The agreement is typically notarized. When every required party has signed, it is "fully executed."

The fertility clinic will not proceed with an embryo transfer until it has confirmation that a fully executed agreement is in place. This is a clinic requirement, not just a legal formality.

Signing does not mean a transfer happens next week. Medical preparation follows. That usually means a medication protocol to prepare your uterus, often including oral or patch estrogen and progesterone, frequently by daily injection, plus monitoring appointments with bloodwork and ultrasounds. The schedule is set by the clinic and can be demanding. The surrogacy process for surrogates describes those stages.

Keep a copy of the fully executed agreement for yourself, separate from anything the agency holds.

Step 5: The Pre-Birth Order Process Begins

A pre-birth order (PBO) is a court order issued before the baby is born that establishes the intended parents as the legal parents, so they are named on the birth certificate.

In California, PBOs are available for gestational surrogacy arrangements and are commonly granted. Parentage in assisted reproduction is governed by Cal. Fam. Code § 7960 et seq. The petition is typically filed in the second trimester, once a viable pregnancy is confirmed. Your attorney and the intended parents' attorney coordinate the filing. In California, both sides typically sign a stipulated judgment, an agreed court order, rather than contesting anything. The California Courts self-help resources at courts.ca.gov explain the state's parentage procedures in general terms.

The PBO protects you as well. Once the order is in place, you are not listed as the legal mother and you have no parental obligations for the child. This is often misunderstood as a document only for the intended parents.

Not every state offers pre-birth orders. Where they are not available, a post-birth parentage action or an adoption may be needed after delivery. This is one of the main reasons state law matters so much.

How Long the Entire Legal Contract Process Takes

Every timeline below is an estimate. Your attorneys can give you a more specific one.

• Attorney retention to fully executed agreement: commonly four to eight weeks for a straightforward gestational arrangement.
• Review and negotiation within that: commonly two to six weeks.
• Match to embryo transfer, including legal work: commonly three to six months.
• PBO: in California, typically filed in the second trimester and granted before birth in most cases. Timing varies by county court.

The legal work runs alongside medical preparation rather than strictly before it. Matching, medical screening and contracting often overlap, although the transfer itself waits for the signed agreement.

Delays most often come from:

• slow responses from either attorney
• unresolved disagreement on selective reduction or termination
• time to obtain required insurance
• one side not yet having counsel

What Could Pause the Contract Stage

It is better to know these in advance than to discover them partway through.

• A fundamental disagreement. If you and the intended parents cannot agree on termination or selective reduction, the match may not go ahead. That is not a failure on your part. It is the process doing its job before a pregnancy begins.
• Escrow not funded. Where escrow is used, it is common to wait until funds are deposited before signing or transfer.
• Insurance gaps. A required policy that has not been issued, or questions about your own health plan, can hold up signing.
• A change in your health. New medical information can mean the clinic reviews your clearance again. The physician decides what happens next.
• A move. Relocating to another state can change which law applies and may need your attorney's review.

What the Contract Cannot Do

A carefully drafted agreement still has limits. Knowing them is part of understanding what you are signing.

It cannot override your bodily autonomy. Courts generally will not force a pregnant woman to undergo or refuse a medical procedure because a contract says so. You keep the right to make decisions about your own body during the pregnancy, and how far a contract can attach consequences to those decisions depends on state law.

Termination and reduction clauses are not uniformly enforced by courts. These are among the most contested provisions in surrogacy law. Even in California, courts have not uniformly enforced them against a surrogate's wishes. The clauses document both sides' intentions and expectations, but enforcement is not assured. The ASRM Ethics Committee's guidance on third-party reproduction, published through connect.asrm.org, sets out an ethical framework for these arrangements, including respect for the gestational carrier's medical decision-making.

It cannot make sure the money is there. A contract can promise payment. It cannot produce funds if the intended parents become unable to pay. Escrow is the main tool used against this risk: compensation is deposited with a neutral third party before the transfer and paid out on schedule. Ask whether the programme uses independent escrow, who the escrow company is and when it is funded. Your attorney can confirm the account is funded before you sign.

It cannot override state law. A provision valid under California law may not be enforceable if you move to another state during the pregnancy.

How to Prepare for the Contract Stage

Most of the preparation is thinking and gathering, and you can start before any match exists.

• Know your own position on termination and selective reduction. Write down what you would and would not agree to, and in what circumstances. These conversations are easier before a draft arrives.
• Think about contact. How much communication with the intended parents feels right during pregnancy, at the birth and afterwards.
• Gather your insurance documents. Your health plan's policy wording helps your attorney spot exclusions early.
• Talk with your partner. If you are married or partnered, they will likely need to sign and may need to meet the attorney.
• List your questions for the agency. Who pays for your attorney, whether escrow is used, which insurance the programme arranges and who pays for it, and how the compensation schedule is structured. The guide to what surrogates should look for in an agency has a fuller list.

Your Next Step

If you want a clearer read on your own situation before you get anywhere near a contract, Surrogate Compass offers a free eligibility review with no obligation. The review looks at your age, pregnancy and delivery history, your general health, and the other criteria programmes commonly use, and it shows whether your situation looks likely to meet those common criteria. In some arrangements, compensation structures may include categories such as emotional harm, therapy, medical costs, and lost income, depending on applicable state law and the terms negotiated. A licensed reproductive attorney can describe which categories are recognized under the relevant jurisdiction's law. It is not approval. Agencies and clinics run their own screening, and a physician decides on medical clearance.

When you are ready, contact Surrogate Compass to request your free eligibility review. There is no deadline, and you can come back whenever it suits you.