Surrogacy Agreements: Why State Law Decides

Surrogacy can help people build a family when pregnancy is not possible or safe for them. It also raises legal questions that most families never face: who the legal parents are, what happens if plans change, and which state's law applies. In the United States, the answers come mainly from state law, and states treat surrogacy very differently. This guide explains the basics so you know what to ask a lawyer. It cannot tell you what the law is in your state or how a court would rule in your case.

What surrogacy means

In a surrogacy arrangement, a woman (often called the surrogate or gestational carrier) carries a pregnancy for another person or couple, who plan to be the child's parents. Those people are usually called the intended parents.

There are two broad types:

• Gestational surrogacy. The carrier is not genetically related to the child. The embryo is created through in vitro fertilization using eggs and sperm from the intended parents or from donors.
• Traditional surrogacy. The carrier's own egg is used, so she is genetically related to the child.

Many states treat these two types differently. Some recognize gestational agreements but not traditional ones, and some have no specific statute at all. That is one reason the type of arrangement matters before anyone signs anything.

Why state law decides

Family law, including the question of who a child's legal parents are, is generally a matter of state law and state courts. The USAGov courts page lists family court among the state and territory courts, and links to courts that serve your area.

Across states, the differences can include:

• Whether surrogacy agreements are enforceable at all.
• Whether compensated surrogacy is allowed, or only arrangements where the carrier is reimbursed for expenses.
• Who may be an intended parent, and whether marriage or a genetic link is required.
• Whether a court can name the intended parents as legal parents before birth, only after birth, or through a separate adoption.
• What the agreement must include, such as independent legal advice or medical and mental health screening.

Because the carrier, the intended parents, the clinic, and the hospital may be in different states, more than one state's law can be involved. A lawyer can explain which state's rules are likely to apply and how that affects the plan.

What a surrogacy agreement usually covers

A surrogacy agreement is a written contract between the carrier (and often her spouse, if she has one) and the intended parents. Exact contents depend on state law and the people involved, but agreements often address:

• The intention that the intended parents will be the child's legal parents.
• Medical decisions during the pregnancy, and who makes which choices.
• Payment of medical bills, insurance, and other costs.
• Compensation, if state law allows it, and how it is paid.
• Steps after birth, including hospital arrangements and parentage paperwork.
• What happens if the pregnancy does not go as planned.
• Confidentiality and future contact.

Some of these terms may not be enforceable in every state, especially terms that try to control the carrier's personal medical choices. Ask a lawyer which parts are likely to hold up where you are.

Setting legal parentage

Signing an agreement is not the same as being a legal parent. In many states, intended parents also go through a court process to confirm parentage. Depending on the state, this may be a pre-birth order, a post-birth order, or an adoption. The goal is generally a court order and an accurate birth certificate that name the intended parents.

Without that step, intended parents may face problems later, for example with medical decisions, school records, inheritance, or travel. Getting parentage settled is a central reason families work with lawyers in surrogacy.

Why each side often has its own lawyer

The carrier and the intended parents have different interests. For that reason, it is common for each side to have its own independent lawyer, and some states require it. A lawyer for the intended parents works for them. A lawyer for the carrier works for her. One lawyer generally cannot fairly represent both sides of the same agreement.

Agencies and clinics may recommend lawyers, but you are free to choose your own. Check any lawyer's license with the state bar or licensing body in the state where they practice.

Questions to ask a family lawyer

• Is surrogacy allowed in my state, and which type?
• Which state's law is likely to govern our agreement?
• How will legal parentage be established, and when?
• What must the agreement include to be valid here?
• What happens if someone wants to change the plan during the pregnancy?
• What are your fees, and what costs are separate?

To find lawyers who handle this type of work, browse family law attorneys and read more of our guides on legal topics. The USAGov legal aid page also lists free and low-cost legal help programs, though services vary by location and income.

Frequently asked questions

Is surrogacy legal in every state?

Rules vary widely. Some states have detailed surrogacy laws, some restrict certain arrangements, and some have no specific statute. A lawyer licensed in your state can explain the current rules.

Are intended parents automatically the legal parents?

Not always. Many states require a court order or another legal step to confirm parentage, even when the intended parents are genetically related to the child.

Does the carrier need her own lawyer?

It is common for the carrier to have independent legal counsel, and some states require it.

Can we use an agreement template from the internet?

A template may not meet your state's requirements. Have a lawyer in the relevant state review or draft the agreement.

This page is general information, not legal advice. Laws change and every case is different — talk to a licensed attorney about your situation.