Surrogate Mother Contract: Key Provisions & Checklist (2025 Guide)
It is essential for anyone considering surrogacy to have a solid surrogate mother contract agreement.
Generally speaking, a surrogate agreement outlines the rights and obligations of the surrogate and the intended parents.
This legal document is the foundation of commercial surrogacy, ensuring that compensation terms are legally enforceable in surrogacy-friendly states.
What You Need to Know About Surrogacy Contracts
A surrogacy contract protects everyone involved—the intended parents, the surrogate, and even the baby. It sets clear expectations, responsibilities, and protection to prevent misunderstandings.
Key Provisions of a Surrogacy Contract
A comprehensive gestational surrogacy agreement (GSA) addresses every aspect of the process to minimize disputes. To protect both parties, the contract must explicitly address these clauses:
1. Financial Compensation & Insurance
This section details the base compensation and specific reimbursements.
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Base Pay & Allowances: Specific amounts for the base fee, plus allowances for maternity clothing, housekeeping, and travel expenses.
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Health Insurance: Specifies who pays the premiums and deductibles. It often requires a professional review to ensure the surrogate’s policy does not have “surrogacy exclusions.”
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Lost Wages: Compensation for the surrogate (and her partner) for time missed due to medical appointments or bed rest.
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Escrow: Requirement that a licensed, independent escrow company hold all funds.
2. Parental Rights & Custody
The most critical legal clause establishing that:
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The Intended Parents are the sole legal parents immediately upon birth.
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The Surrogate (and her spouse, if married) relinquishes all parental rights.
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Pre-Birth Order (PBO): Attorneys will file for a PBO around the 20th week to secure the birth certificate.
3. Medical Decisions & Contingencies
The contract must outline consent for medical procedures and “what if” scenarios.
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Selective Reduction: Explicit agreement on termination in cases of severe genetic defects or health risks.
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Death or Divorce: A plan for the child in the unlikely event the Intended Parents die or divorce during the pregnancy.
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Miscarriage: Compensation terms if the pregnancy ends early.
4. Conduct, Lifestyle & Privacy
Agreements regarding behavior during the pregnancy.
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Diet & Travel: Travel restrictions (e.g., no flying after 32 weeks) and dietary guidelines.
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Confidentiality: Rules regarding what can be shared on social media and keeping the arrangement private.
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Abstinence: Agreements regarding sexual abstinence during the transfer cycle.
Legal Requirements & Costs
To ensure the contract is enforceable in court, specific legal standards must be met:
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Independent Counsel: Both the Intended Parents and the Surrogate must have separate legal representation. This prevents a conflict of interest.
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Timing: The agreement must be signed and notarized before the surrogate begins injectable medications for the embryo transfer cycle.
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Cost: Legal fees for drafting and negotiating a surrogacy contract typically range from $8,000 to $15,000, depending on the state and complexity.
How a Surrogacy Contract Protects Both Parties
A surrogacy contract is designed to protect the interests of both the surrogate and the intended parents. By clearly outlining each party’s rights and responsibilities, the contract helps prevent misunderstandings and conflicts throughout the surrogacy journey.
The contract ensures the surrogate understands her rights, such as health care coverage, compensation, and the level of involvement the intended parents will have during the pregnancy. It also addresses her medical decisions and any support she may need during this experience.
For the intended parents, the contract provides reassurance that their wishes regarding the pregnancy and the child’s future will be respected. It outlines their financial responsibilities and establishes expectations for communication and involvement.
A well-drafted surrogacy contract can help both parties feel secure and supported, fostering a healthy relationship during a special time.
Important Questions to Ask About Your Surrogacy Agreement
When entering a surrogacy contract, asking the right questions is necessary. Having clear answers can help you feel more secure and informed. Here are some important questions to consider before finalizing your surrogacy contract:
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What are the specific roles and responsibilities of both the surrogate and intended parents?
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How will the financial aspects, such as compensation and expenses, be handled?
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What happens if there are medical complications during the pregnancy?
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How will communication be maintained throughout the pregnancy?
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What steps will be taken if either party wants to change or end the agreement?
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How are potential disagreements or issues going to be resolved?
Customizing a Contract to Reflect Your Family’s Needs
Every surrogacy journey is unique, whether you are using an agency or drafting a private surrogate contract for an independent journey. A customized contract ensures your family’s needs are fully addressed.
It allows you to outline specific preferences, such as how involved you wish to be during the pregnancy or particular lifestyle guidelines for the surrogate. This approach provides clarity and helps everyone feel confident moving forward.
Customization in surrogacy services also fosters open communication between you and the surrogate. The contract becomes a shared agreement built on trust and mutual understanding by addressing individual concerns and expectations.
With the guidance of an experienced surrogacy attorney, you can create a contract that reflects your values while protecting everyone involved.
Why You Need a Surrogacy Attorney
Working with a legal expert can strengthen the agreement. These professionals specialize in the legal aspects of surrogacy and understand what is required to protect the surrogate and the intended parents.
A legal expert can help you understand what should be included in your surrogacy contract. They know the laws and regulations specific to your area and can ensure that your agreement complies with all legal requirements. They can also guide you through the negotiation process.
When a legal expert reviews your contract, it can help identify any potential issues before they arise. They can spot unclear terms or sections that may lead to misunderstandings later on.
FAQs
What is the meaning of a surrogacy agreement?
A surrogacy agreement is a legal contract between the intended parents and the surrogate. It outlines both parties’ roles, responsibilities, and rights and covers aspects like parental rights, financial compensation, medical care, and handling unexpected situations.
Who owns the baby of a surrogate mother?
As outlined in the surrogacy agreement, the intended parents are legally considered the baby’s parents. The surrogate has no parental rights to the child.
Do surrogates get paid if they miscarry?
Yes, surrogates typically receive compensation even in the case of a miscarriage. The exact terms depend on the surrogacy agreement, but surrogates are usually compensated for their time, effort, and any pregnancy-related expenses incurred up to that point.
What are the steps involved in surrogacy?
The process typically follows four key steps: 1. Screening & Matching, 2. Legal Contracts, 3. Medical Procedures (IVF & Transfer), and 4. Pregnancy & Birth. The legal agreement must be finalized before step 3 begins.
Final Thoughts
Everyone can feel secure and supported when there is a clear outline of the roles, responsibilities, and expectations for the surrogate and intended parents.
Asking the right questions, seeking legal expertise, choosing the right surrogacy agency, and addressing your family’s unique needs will help create a strong contract.
This thoughtful approach fosters trust and communication, making the surrogacy process more positive and manageable for all parties involved.
Julianna Nikolic
Chief Strategy Officer Julianna Nikolic leads strategic initiatives, focusing on growth, innovation, and patient-centered solutions in the reproductive sciences sector. With 26+ years of management experience and a strong entrepreneurial background, she brings deep expertise to advancing reproductive healthcare.
