After more than two decades representing intended parents, surrogates, and donors across the United States, and after living the surrogacy journey personally as a mother whose twins were carried by a gestational carrier, I can tell you with certainty that the surrogacy contract is the single most important document you will sign on the path to parenthood.
It is not boilerplate.
It is not a formality.
It is the legally binding instrument that converts a deeply personal arrangement into an enforceable, court-recognized framework, and it is the document that protects everyone – the intended parents, the gestational carrier, her spouse, and ultimately the child.
In the U.S., surrogacy is governed at the state level. The legal landscape varies dramatically, from states like California, which have long enforced gestational surrogacy contracts, to newer-frontier jurisdictions like Michigan, where compensated surrogacy only became statutorily permitted on April 1, 2025, and Massachusetts, whose Parentage Act took effect January 1, 2025. A contract that works flawlessly in one state may be partly or wholly unenforceable in another.
That is precisely why every clause matters.
A typical gestational carrier agreement (GCA) in the United States runs 30 to 40 pages. Below are the 15 clauses I believe no intended parent or surrogate should never sign without, and what each one is actually doing for you.
1. Parties, Recitals & Definitions
The opening pages of any U.S. surrogacy contract identify the parties:
- the intended parent(s)
- the gestational carrier
- her spouse or partner (if she has one)
- and any third parties such as the agency or escrow company
In the opening pages, the technical terms will be defined and used throughout the agreement. Example: “embryo,” “gestational carrier,” “intended parents,” “pregnancy,” “child,” “assisted reproduction,” and so on.
This may sound mechanical, but it does real legal work. Recitals establish the parties’ intent, and clear definitions prevent the kind of interpretive disputes that have driven litigation in surrogacy cases.
The surrogate’s spouse must be named and bound by the agreement so that he or she cannot later assert parental rights under marital presumption statutes, and this is a foundational protection in every state where surrogacy is practiced.
2. Establishment of Legal Parentage & Pre-Birth Order
This is the heart of the contract. The agreement must spell out exactly how the intended parents will be legally recognized as the child’s parents – through a pre-birth parentage order, a post-birth order, a confirmatory adoption, or some combination, depending on the state.
In states with strong statutory frameworks, like California, Colorado, Washington, Nevada, New Jersey, Massachusetts (effective January 1, 2025), or Michigan (effective April 1, 2025), pre-birth orders are generally available and routinely issued.
In other states, additional post-birth filings or amendments to the birth certificate are required. Some states still prohibit compensated surrogacy contracts outright or render them void by statute, which is why a knowledgeable attorney evaluates the surrogate’s state of residence, the intended parents’ state of residence, and the state of birth before a contract is drafted.
The parentage clause should detail who files the petition, when it is filed, who pays for it, and what happens if the order is delayed or denied. As the Massachusetts Parentage Act provision spells out, a surrogacy agreement is only enforceable if it explicitly states that the surrogate has no claim to parentage and acknowledges the intended parents’ exclusive parentage of any resulting child.
3. Governing Law, Venue & Choice of Forum
Because U.S. surrogacy law is state-specific and varies enormously, the contract must clearly identify which state’s law governs the agreement and which courts will have jurisdiction over any disputes. This is more than a formality. Choice-of-law and venue provisions determine whether your agreement is enforceable at all, and where you will have to litigate if something goes wrong.
When the intended parents live in one state and the surrogate lives in another (a very common scenario), the governing law clause prevents confusion about which statutory framework applies. It also gives the fertility clinic, escrow company, and hospital a clear roadmap. A well-drafted clause names the governing state, designates the courts of that state for any litigation, and includes an enforceability provision confirming the parties’ intent that the agreement be honored as written.
4. Embryo Transfer Protocol: SET, Attempt Limits & the Sunset Clause
The medical-procedure clause specifies how the embryos will be transferred, how many transfers the surrogate has agreed to undergo, and, critically, how many embryos can be transferred per cycle.
Today, modern U.S. agreements overwhelmingly prioritize Single Embryo Transfer (SET) as the medical standard. Multiple-embryo transfers significantly increase the risk of high-order multiples, pre-eclampsia, prematurity, and NICU stays, risks that fall disproportionately on the surrogate. The agreement must also address what happens if a transferred embryo spontaneously splits, resulting in identical twins, and how compensation adjusts in that scenario.
Equally important is the “sunset clause”, defined as a firm time limit on how long the parties are obligated to keep trying. Without it, surrogates can be left in indefinite emotional and medical limbo, and intended parents can be locked into open-ended commitments.
5. Surrogate Compensation & Payment Schedule
This is where money meets emotion, and where ambiguity creates the most disputes. The compensation clause must specify:
- The base compensation: the agreed fee for carrying the pregnancy
- The payment schedule: whether monthly installments after a confirmed heartbeat, milestone payments, or a combination
- Multiples adjustments: additional compensation if the pregnancy results in twins or higher-order multiples
- Specific procedure payments: for invasive procedures like amniocentesis, cervical cerclage, or cesarean delivery
- Bed-rest compensation: what the surrogate receives if she is medically ordered to stop working
- What happens if the pregnancy ends early: through miscarriage, failed transfer, or termination
Compensation must also comply with state-specific rules. Some states limit what can be paid and how the payment is characterized, while others have no such restrictions. A well-drafted contract reflects exactly what the applicable state permits.
6. Escrow/Trust Account Administration
Every legitimate U.S. surrogacy arrangement uses a licensed escrow company or trust holder to hold and disburse funds. The contract must require the intended parents to fund the escrow/trust account in full, typically before the first embryo transfer, and must name the escrow/trust agent, set the disbursement schedule, and define what triggers each payment.
This protects the surrogate from late or missed payments, and it protects the intended parents from disputes about whether money was actually delivered. Funds for compensation, medical costs, and reimbursable expenses are typically all routed through escrow, so the surrogate is never put in the position of chasing payment directly from the intended parents during her pregnancy.
7. Reimbursable Expenses
Beyond base compensation, the contract must specify which out-of-pocket expenses the intended parents will cover and how the surrogate submits them. Standard reimbursable expenses include:
- Travel costs (mileage, airfare, lodging) for appointments and the embryo transfer
- Maternity clothing allowance
- Lost wages for both the surrogate and, in many contracts, her spouse, for time off due to medical appointments, bed rest, or recovery
- Childcare costs when she is at appointments or on bed rest
- Housekeeping assistance if medically needed
- Medication co-pays
- Telecommunication/cell phone allowance
- Cycle and transfer allowances for each medication and transfer cycle
Every line item should specify the amount or the cap, the documentation required, and the payment timeline. Vague reimbursement clauses are one of the most common sources of mid-pregnancy conflict.
8. Health Insurance & Medical Cost Allocation
Insurance is the single most under-appreciated risk in a U.S. surrogacy contract, and it is non-negotiable that the intended parents bear all medical costs related to the pregnancy.
Before a contract is finalized, the surrogate’s existing health insurance policy must be reviewed by an experienced insurance specialist to confirm whether it has a surrogacy exclusion (language stating the plan does not cover “third-party reproduction”) or lien rights (clauses that let the insurer recover from the surrogate’s compensation). Many employer-sponsored plans contain exclusions that only surface when the first prenatal claim is denied.
The contract must:
- Confirm that the intended parents pay all premiums, deductibles, co-pays, and co-insurance related to the pregnancy
- Require the intended parents to purchase a backup policy if the surrogate’s plan has an exclusion
- Address how out-of-network providers and emergency care will be handled
- Specify newborn coverage, when the baby is added to the intended parents’ policy
9. Life Insurance & Disability Insurance for the Surrogate
This is one of the clauses most often misunderstood by first-time intended parents. The industry standard in U.S. surrogacy contracts is a term life insurance policy, purchased by the intended parents on the surrogate, with beneficiaries she designates (typically her spouse or her children). The policy must be in effect before she begins any medications for embryo transfer.
In addition, many contracts now also require a short-term disability policy in case the surrogate experiences a complication that prevents her from working after the pregnancy. New York’s statutory Gestational Surrogates’ Bill of Rights specifically mandates that intended parents provide the surrogate with a life insurance policy that takes effect before any medication or treatment for embryo transfer begins.
This is a non-negotiable protection. Pregnancy carries real risks, and the surrogate’s family must be protected financially.
10. Termination of Pregnancy, Selective Reduction & Reproductive Autonomy
This is the most emotionally and legally complex clause in any surrogacy contract, and it must be handled with extreme care.
The clause typically addresses three scenarios:
(1) termination because the surrogate’s life or health is at risk
(2) termination because prenatal testing reveals severe fetal abnormality
(3) selective reduction in the case of a multiple pregnancy.
The parties must reach genuine alignment on each scenario before signing, and the contract must memorialize those agreements with specificity, never vague language like “abnormalities that significantly impair the child’s quality of life,” which courts and surrogates alike find unworkable.
Here is the critical legal reality every intended parent must understand: under U.S. constitutional law, a pregnant woman cannot be compelled to undergo or refuse an abortion regardless of what the contract says. A surrogacy contract can specify financial consequences for non-compliance, and many do, but it cannot force a medical procedure on a surrogate’s body. That is why mental health alignment before signing matters as much as the contract language itself. A well-drafted clause typically includes a “discretion of the attending physician” provision for imminent-harm scenarios and specifies what the financial consequences are if the parties’ wishes diverge.
The post-Dobbs legal environment makes the surrogate’s state of residence even more important. State abortion laws vary widely, and the contract must reflect what is actually permissible where the surrogate will deliver.
11. Lifestyle, Prenatal Conduct & Travel Restrictions
The contract sets out the lifestyle commitments the surrogate is making during the pregnancy: prenatal care attendance, dietary restrictions (no alcohol, no smoking, limits on caffeine, avoidance of certain foods like raw fish or unpasteurized cheese), abstaining from high-risk activities, and following medical orders.
It also addresses travel restrictions, typically requiring that the surrogate notify the intended parents of any travel beyond a defined radius, prohibiting international travel after a certain gestational week, and restricting travel by air after roughly 32–36 weeks depending on the agreement. Domestic travel restrictions become especially important when the surrogate and intended parents live in different states with different abortion or parentage laws, where crossing a state line during pregnancy could have legal consequences.
A note on enforceability: U.S. courts have consistently held they will not order specific performance of personal-behavior clauses. These provisions exist primarily to establish shared expectations and to provide a basis for damages in the rare event of a material breach.
12. Birth Plan, Hospital Authority & NICU Decisions
The hospital is where everything the contract has built either holds together or falls apart. The agreement must therefore include a detailed birth plan covering:
- Who is present in the delivery room
- Who holds and feeds the baby first
- Whether the surrogate will pump or provide breast milk (and if so, the compensation and logistics)
- How the baby is identified at the hospital and on the birth certificate
- Who has authority to make medical decisions for the newborn if the intended parents are delayed or unavailable
- NICU authority – who consents to NICU treatment, transfers, and discharge if the baby is born premature or with complications
- A power of attorney from the surrogate to the intended parents authorizing them to make decisions for the baby in the hospital
In real-world practice, NICU authority disputes are among the most fraught situations I see. A surrogate from out of state and intended parents traveling in for the birth need a clearly executed legal packet that the hospital will accept — and that packet must be prepared before delivery, not after.
13. Death, Disability, or Divorce of Intended Parents
What happens if the intended parents die, become disabled, or divorce during the pregnancy? This contingency clause is essential and frequently overlooked.
The contract should require the intended parents to have current estate planning documents, wills, guardianship designations, trusts – that name who will take legal custody of the child and who will be responsible for fulfilling the financial obligations of the surrogacy agreement (including the surrogate’s remaining compensation, medical costs, and post-birth expenses). The clause should also address what happens if the intended parents separate or divorce mid-pregnancy: who remains a legal parent, who pays, and how parentage is established for the child.
Without this clause, a tragic event can leave the surrogate without compensation and the child without legally recognized parents, a worst-case scenario that careful drafting prevents.
14. Confidentiality, Communication & Social Media
Privacy in modern surrogacy is no longer simply about who knows what — it is about who posts what. The confidentiality clause should address:
- Whether the parties may share the journey publicly and under what conditions
- Use of names, photos, and identifying information on social media
- What the surrogate can share with her own family, friends, and employer
- How the relationship will be handled after the birth, whether there will be ongoing contact, photo updates, or eventual disclosure to the child
- HIPAA authorizations for sharing medical information between the surrogate and the intended parents
Many contracts now include explicit social media provisions because what once felt like a private journey now plays out in real time on platforms with global reach. A good clause respects the surrogate’s autonomy to share her own story while protecting the privacy of the intended parents and the child.
The communication clause sets expectations for the frequency and format of updates: weekly text check-ins, photos after ultrasounds, calls after major appointments, and the surrogate’s role at the delivery. Mismatched communication expectations are the single most common source of relational friction, and writing them down up front prevents most of it.
15. Breach, Remedies & Dispute Resolution
Even the best contracts can encounter conflict. The breach clause should define what constitutes a material breach versus a non-material breach, list the available remedies, and include notice-and-cure provisions, meaning the party in alleged breach must be notified and given a defined period to fix the problem before remedies are triggered.
Most U.S. surrogacy agreements now require mediation as a first step before any party can file in court, with arbitration as a backup. Litigation is expensive, slow, and destructive to relationships during what is supposed to be a hopeful time. Mediation, conducted by a neutral with surrogacy-specific experience, resolves the vast majority of disputes that arise.
The clause should also address attorneys’ fees (typically the breaching party pays), and should make clear that the intended parents remain financially responsible for the child regardless of any breach. Illinois law, for example, provides that intended parents who breach a gestational surrogacy agreement remain responsible for the child’s financial support.
Final Thoughts From My Practice
Every clause I have described here exists because, somewhere, something went wrong in a case that came before. Surrogacy contracts have evolved through real disputes, real heartbreak, and real legal innovation over the past three decades. They are now sophisticated, protective documents, but only when drafted by attorneys who do this work every day.
A few rules I share with every intended parent who comes to me:
The surrogate and the intended parents must have separate, independent attorneys. This is required in most U.S. states and is best practice in all of them. The intended parents typically pay for both sides’ legal fees.
The contract must be fully signed before any medication or embryo transfer. No reputable fertility clinic will proceed otherwise, and for good reason, the legal foundation must be in place before the medical journey begins.
State law selection drives everything else. Where the intended parents live, where the surrogate lives, and where the baby will be born together determine which legal framework applies. Get this wrong, and the strongest contract in the world may be unenforceable.
Mental health alignment is as important as legal alignment. A contract memorializes what the parties have already agreed to. Counseling and joint sessions before contract drafting are not optional — they are how parties discover whether they actually share the values that will be tested if a hard decision arises.
A surrogacy contract cannot prevent every difficult situation. But a thoughtful, comprehensive, state-appropriate contract, one that contains all 15 of the clauses above, protects every person at the table and gives the child the most secure possible legal foundation from the moment of birth.
That, more than anything else, is what this work is about.
Author
Related Articles:
What to Expect When You’re Expecting via Surrogacy: An Emotional Guide for Intended Parents
Navigating Post-Birth Time With Your Surrogate: A Timeline Guide for Intended Parents
Related courses:
Online Course: Surrogacy & The Law: Navigating the Legal Maze of International Surrogacy
