The Surrogacy Contract [6 Reasons Why It’s the Most Important Part of Your Surrogacy Journey]

The surrogacy contract (sometimes called a surrogacy agreement) is a binding legal document that guides the entire surrogacy process for intended parents and surrogates. It’s one of the most important parts of the entire surrogacy journey. These formal contracts prevent miscommunication and disputes; set clear boundaries, timelines and expectations; and protect everyone involved — the surrogate, the intended parents and the baby.

Below, we’ll walk you through how to make a surrogacy contract, and why you need one:

Why You Need a Formal, Legal Surrogacy Contract

There are a lot of reasons why you need a properly executed surrogacy contract through a licensed attorney, but here are six:

1. It protects the surrogate.

A fully executed surrogacy contract protects the surrogate physically, legally, financially and emotionally. The contract clearly outlines the medical procedures that the surrogate agrees to and what medical aspects she would not be comfortable with. The surrogacy agreement legally absolves her of unwanted post-birth rights and responsibilities to the intended parents’ child. It protects her from unreasonable demands from intended parents and outlines her responsibilities. It also ensures that she will not end up paying for the costly medical process and that she receives fair compensation at clearly specified intervals.

2. It protects the intended parents.

Surrogate contracts identify the child’s true legal parents (regardless of whether or not they’re genetically related to the baby) and protect the rights and responsibilities that come with that role. It also protects the intended parents financially and emotionally.

Without these protections granted by a fully executed surrogacy agreement, the intended parents could end up spending much more time and money trying to establish their rights to their child in post-birth litigation proceedings.

3. It is specifically tailored to your situation and those involved.

Sometimes, intended parents and surrogates will try to cut costs by downloading a sample contract they find online, signing it and then having it notarized. In addition to being legally risky, a cut-and-paste contract will not appropriately address your needs.

It’s important to work with an experienced surrogacy attorney to draft a formal surrogacy contract that accurately reflects your situation and the people involved. Not all surrogates and intended parents will have the same needs or concerns! Your contract will be designed around you, to ensure that you’re fully protected.

4. When each party is individually represented by separate surrogacy attorneys, the contract ensures that all parties are equally advocated for.

Some intended parents and surrogates will try to save money and cut corners by working with the same attorney. But, how can you be sure that the two parties are being fairly and equally represented throughout the creation of your surrogacy arrangement? Working with one attorney for both parties means that your contract could be biased.

Individual representation of the two parties by separate surrogacy attorneys is the best way to ensure that your surrogacy contract is a fair and equal reflection of everyone’s needs. Each attorney will focus on their client’s needs and then come together to establish a contract that addresses both sides.

Don’t worry — if you don’t have a second attorney in mind, we’ll be able to refer you to local representation we trust.

5. It serves as a roadmap for your surrogacy journey and addresses all of the “what if” scenarios.

Most intended parents have not considered things like what they would want to do if their surrogate became pregnant with two of their embryos at once, or how compensation would need to be adjusted for the surrogate if the pregnancy required additional medical procedures. The surrogacy contract is the opportunity for the surrogate and intended parents to consider these types of questions and to collaboratively and decisively outline what their response would be. Jennifer will walk you through it all and will ask all the questions you never thought to consider.

All of the most important decisions and potential scenarios (along with potential responses) are documented in the contract. Throughout the surrogacy journey, everyone can refer to the contract as their personal roadmap.

6. It clearly states each person’s rights, responsibilities and roles throughout the process and beyond.

Clearly stating the expectations, responsibilities and roles of the intended parents, the surrogate and her spouse, if she’s married, is one of the best ways to ensure a healthy, positive and enjoyable relationship between the intended parents and surrogate. Even if you already know and trust one another, setting precise expectations and responsibilities will protect that important relationship and prevent miscommunication. These details will be included in formally executed surrogacy arrangements.


FAQ About Surrogacy Contracts

We know you may have some questions about contracts and how they protect the people involved in a surrogacy arrangement, like:

“What happens if the intended parent or surrogate breaks their surrogacy legal contract?”

Fortunately, this is a rare occurrence. But, having a fully executed surrogacy contract means that a party could take legal action if the other party violated the terms of the contract.

“Are informal or verbal surrogacy agreements legally binding?”

No. And, because these informal agreements are not legally binding, either party could go back on their word. This could result in disastrous financial, emotional, or physical consequences. You must work with a licensed surrogacy attorney for a fully executed surrogacy contract before you begin your surrogacy journey.

“Are there differences between gestational surrogacy contracts and traditional surrogacy contracts?”

A traditional surrogacy contract would be different (and far more extensive) than a gestational surrogacy agreement, yes. This is another reason why a copy-paste sample surrogacy contract found online will not work. Traditional surrogacies are rare, due to the increased legal and emotional risks involved. Many professionals will not complete a traditional surrogacy, and some states do not permit traditional surrogacy contracts. Gestational surrogacy contracts, however, are common, widely accepted and far more straightforward.

“Are there differences between paid surrogacy contracts and altruistic surrogate mother contracts?”

Yes. Most surrogacy journeys involve some amount of compensation to offset the physical, emotional and time commitments that gestational carriers offer the intended parent, and so the contract reflects this. Contracts will have clearly detailed compensation amounts for specified time periods, as well as compensation amounts for any additionally required medical procedures, carrying multiples, etc. It will also detail the terms and conditions under which the surrogate would receive compensation and reimbursement, and how these would be paid.

Altruistic surrogacy contracts typically only detail how the surrogate would be reimbursed for the surrogacy- and pregnancy-related medical costs.

“Are there separate surrogate agreement and intended parent agreement forms or contracts?”

No. However, surrogates and intended parents are represented by separate surrogacy attorneys. Each party’s attorney will consult with the client to discuss their wants, needs and comfort levels and will draft contract terms to reflect this. The two attorneys (along with the two parties) will come together to discuss any potential changes to the document, and once all parties are happy with the contract, it can be signed, finalized and distributed to any professional who requires a copy.

“Can I print out a sample surrogacy contract to avoid working with an attorney?”

Again, no. This may seem like a good way to save time and money, but this could lead to serious legal consequences. You must have a fully executed surrogacy contract under the guidance of a licensed surrogacy attorney. Many medical professionals will not work with surrogates or intended parents who do not have such a contract, and you will not be able to move forward with your surrogacy journey until you do.


Ready to create your surrogacy contract? Contact us now to schedule a consultation.

“I believe in working with each of my clients—in support of their family dynamic—to make the dreams of parenthood a reality. Whether you are single or married; or gay; a step-parent, a surrogate or intended parent or a child of adoption, it is my mission to serve as your advocate. With a dedication to the ethical and sensitive nature of each situation, I will help you understand the laws within Maryland or Washington, DC for adoption or surrogacy, and pledge to be your partner throughout the journey.” - Jennifer Fairfax