The Surrogacy Legal Process: Contracts, Orders, and Parental Rights

Once intended parents and a surrogate have matched and are ready to move forward, the instinct is to get to the medical procedures as quickly as possible. That urgency makes sense — but the legal process has to come first, and skipping or rushing it creates risk for everyone involved.

The surrogacy legal process has three core phases: the surrogacy contract, the pre-birth parentage order, and any post-birth adoption or legal procedures required by your state.

At Physician’s Surrogacy, our coordinators guide both surrogates and intended parents through each stage — but the legal work itself is always handled by independent attorneys representing each party separately. Here’s what each phase covers and why it matters.

Creating and Negotiating the Surrogacy Contract

Before the embryo transfer, both parties work with their respective attorneys to create and negotiate the surrogacy contract. This is a collaborative process — the intended parents and their attorney typically draft the contract first, then send it to the surrogate and her attorney for review and revision.

The two legal teams continue working until both parties are satisfied with every term.

Independent legal representation for each party isn’t optional — it’s a requirement. One attorney cannot represent both the surrogate and the intended parents. Each attorney’s job is to protect their own client’s interests and make sure the final contract is balanced and fair.

Without separate counsel, both sides would have to negotiate directly with each other — a setup that creates stress and puts the relationship at risk before the journey even begins.

The contract must be fully signed by both parties before medical procedures start. Fertility clinics won’t proceed with the embryo transfer until the surrogacy contract is in place — that requirement protects everyone, including the clinic.

Legal fees for drafting and negotiating a surrogacy contract typically run between $8,000 and $15,000, depending on the state where the birth will occur and the complexity of the arrangement. At Physician’s Surrogacy, the surrogate’s legal fees are covered as part of the journey — not paid out of pocket.

What the Surrogacy Contract Covers

A well-drafted surrogacy agreement covers the following at minimum:

• Surrogate compensation and the full payment schedule. This includes the surrogate’s total compensation, any additional payments for invasive procedures, carrying more than one baby, bed rest, and other covered scenarios.
• Risks and liability. The contract defines which risks are assigned to which party and how liability is handled if complications arise.
• The surrogate’s health obligations. This includes commitments to prenatal care, restrictions on alcohol, tobacco, and recreational drugs, and other lifestyle requirements during the pregnancy.
• Agreements on sensitive decisions. Both parties must reach written agreement on topics like pregnancy termination and selective reduction before the journey begins — not after.
• Prenatal appointments and delivery access. The contract specifies who may be present at prenatal appointments and at delivery, and what notification is required.

These terms aren’t boilerplate — every one of them gets negotiated. What the contract says about each item is what governs the journey if something unexpected comes up.

The ASRM gestational carrier guidelines recommend that both the surrogate and intended parents receive independent legal counsel — a standard that reputable agencies treat as a requirement, not a suggestion.

Lifestyle and Conduct Provisions

Beyond finances and medical decisions, the contract governs how the surrogate lives during the pregnancy. These provisions protect both parties by setting expectations in writing before the journey begins.

Standard lifestyle clauses cover travel restrictions — typically no international travel and no flying after a certain gestational week. Dietary guidelines, agreements around alcohol and tobacco, and abstinence requirements during the embryo transfer cycle are also addressed.

Confidentiality provisions specify what either party may share on social media or disclose publicly about the arrangement. What happens in the rare event the intended parents divorce, relocate, or pass away during the pregnancy must also be documented — not left to assumption.

These clauses aren’t about distrust. They exist because a signed agreement is far easier to work through than an unresolved disagreement mid-journey.

Other Factors That Affect the Contract

No two surrogacy contracts are identical. State surrogacy laws, the specific circumstances of each party, and the details of the arrangement all shape what the contract needs to include.

A variable that one journey never encounters — a second embryo transfer, an unexpected bed rest period, a change in the intended parents’ marital status — can become the central issue in another.

An experienced surrogacy attorney knows what to look for. If you’re working with a surrogacy agency, they should be able to coordinate legal referrals. For those seeking an independent attorney, the AAARTA attorney directory lists attorneys with surrogacy experience.

Customizing the Contract for Your Situation

No two surrogacy agreements are identical — nor should they be. The contract should reflect the specific preferences and concerns of both the surrogate and the intended parents, not just the minimum legal requirements.

Intended parents may want to specify how involved they can be at prenatal appointments, how communication should happen throughout the pregnancy, and what level of ongoing contact — if any — they would like with the surrogate after delivery. Surrogates may have preferences around which lifestyle provisions are negotiable and which are firm.

An experienced reproductive law attorney will draft the contract to account for your actual situation, not a hypothetical one. That specificity is what makes the agreement protective when something unexpected comes up.

The Pre-Birth Order

The second phase of the surrogacy legal process is establishing the intended parents as the baby’s legal parents before the birth. In most surrogacy-friendly states, this happens through a pre-birth order — a court filing that allows the hospital to discharge the baby directly to the intended parents.

The criteria for filing a pre-birth order vary by state, but the paperwork typically includes:

• A physician’s affidavit confirming that the embryos were transferred to the surrogate.
• Social and psychological assessments of both the surrogate and the intended parents.
• A document signed by the surrogate and her spouse relinquishing any legal claim to the child after birth.

Attorneys typically begin working on the pre-birth order around the seventh month of pregnancy. In states where a pre-birth order is granted, the only post-delivery paperwork is a statement from the surrogate confirming she is not the legal parent and a corresponding acceptance document from the intended parents.

Post-Birth Legal Steps and Adoption

In some cases, additional legal steps are required after delivery. This most commonly applies when one or both intended parents have no genetic connection to the child.

A second-parent adoption is required when only one parent’s genetic material was used — for example, when donor eggs or donor sperm were involved. Depending on state law, unmarried same-sex couples may also need to complete a second-parent adoption rather than a step-parent adoption.

When neither intended parent shares a genetic tie to the child — as in embryo adoption — a full adoption is required.

The specific steps depend entirely on the laws of the state where the birth occurs. You can review our surrogacy laws by state guide for a breakdown of how each state handles parentage. Surrogacy-friendly states — some are highly surrogacy-friendly, others have restrictions that add steps. Your surrogacy attorney will guide you through the correct process for your situation.

The Risk of Using Generic Online Surrogacy Contracts

Some intended parents and surrogates consider downloading a template surrogacy contract from the internet — free, fast, and seemingly straightforward. This approach carries real legal risk.

Generic online contracts are written for a hypothetical surrogacy arrangement, not yours. They don’t account for your state’s surrogacy laws, the specific terms of your agreement, or the variables that can arise mid-journey.

A contract that doesn’t address what happens after a miscarriage, a failed transfer, or an unexpected medical complication leaves both parties unprotected. Disputes that arise without a clear contractual answer are far more damaging than the time spent drafting a thorough agreement upfront.

The ASRM ethics committee opinion on gestational carriers reinforces that independent legal counsel and a properly negotiated agreement are baseline protections — not optional extras.

Questions to Ask Before You Sign a Surrogacy Contract

A surrogacy contract can run 30–40 pages. Your attorney will review every clause — but you should walk into that review knowing what to ask about. Our guide for surrogate contracts covers what to expect from the surrogate’s side specifically. These questions apply to both surrogates and intended parents.

For Surrogates

• What is my total compensation, and how is it structured — monthly installments, milestone payments, or a combination?
• What happens to my compensation if the pregnancy ends early due to miscarriage or a failed transfer?
• Are travel expenses, lost wages, maternity clothing, and childcare reimbursements included — and how do I submit them?
• What are the specific lifestyle and medical restrictions I’m agreeing to during the pregnancy?
• Who makes medical decisions if a complication arises — and what does the contract say about bed rest compensation?
• How are disagreements between me and the intended parents handled once the contract is signed?

For Intended Parents

• What is the full payment schedule, and when are escrow deposits required?
• What costs am I responsible for if a transfer fails and a second cycle is needed?
• How does the contract handle a change in my marital status, relocation, or other life events during the pregnancy?
• What access do I have to prenatal appointments and delivery — and how is that defined in writing?
• What are the specific terms around selective reduction and pregnancy termination?
• How does the contract address insurance gaps — particularly if the surrogate’s existing policy has a surrogacy exclusion?

How the Three Legal Phases Fit Together

The surrogacy legal process isn’t a single event — it runs across the full length of the journey. Here’s how the three phases sequence:

Start the Legal Process on Solid Ground

The surrogacy legal process is one of the parts of the journey that most people underestimate — until something goes wrong with a contract that wasn’t specific enough, or a state law they didn’t know about creates a complication at delivery.

Getting the legal foundation right at the start protects everyone.

At Physician’s Surrogacy, we coordinate legal referrals for both surrogates and intended parents, work with your legal team throughout the journey, and make sure every phase is completed before the next one begins. Our coordinators are available around the clock if questions come up at any stage.

If you’re a surrogate exploring your options, learn about the journey and how our team supports you from application through post-delivery. If you’re an intended parent, schedule a consultation to talk through the process with our team.

Frequently Asked Questions About the Surrogacy Legal Process

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.