With surrogacy often featured in pop culture and media, it may seem like the practice is widely understood and legally straightforward. In reality, surrogacy laws in the United States remain complex and vary significantly by state. In some jurisdictions, surrogacy agreements are enforceable, while in others the practice is restricted – or even prohibited.
Because surrogacy involves medical, emotional and legal considerations, it’s important for intended parents and surrogates to understand how the process works and where legal issues may arise before moving forward.
What is surrogacy?
Surrogacy is an agreement between two parties in which a woman agrees to carry and give birth to a child for the other party, whether a single individual or couple. It’s important to know the two types of surrogacy and the difference between them from a legal standpoint.
Types of surrogacy
- Traditional or ‘straight’ surrogacy is when the surrogate mother is also the biological mother.
- Gestational surrogacy is when the surrogate is implanted with a donor embryo created through in vitro fertilization (IVF) and shares no genetic connection with the child.
Today, gestational surrogacy is far more common than traditional surrogacy. The technology to freeze embryos has been around since the 1980s, when assistive reproductive technology became mainstream. While the medical process may be well established, legal questions can still arise throughout the surrogacy journey.
Why legal planning matters in surrogacy
The surrogacy process should not be looked at lightly. Establishing clear legal agreements helps protect everyone involved and allows parents and surrogates to focus on preparing for the child’s arrival.
A surrogacy agreement or contract is a document put together to ensure that the surrogate and the legal parents are treated fairly and all expectations for the process are being met.
This form can cover everything from compensation to medical decision-making and ensures that the surrogate and intended parent(s) are treated fairly – and that key decisions are made in advance.
What a surrogacy agreement may include
A well-drafted surrogacy agreement can address issues such as:
- Compensation and expense reimbursement
- Medical decision-making during pregnancy
- Health and lifestyle expectations
- Who may be present during labor and delivery
- Parental rights and responsibilities after birth
Though the medical facility or fertility clinic you work with may have templates or formatting ideas for these documents, these may not be viewed as enforceable surrogacy contracts by the law. Putting documents together before the child’s birth ensures that no issues arise with questions on birth certificates or legal custody of the child.
The role of an attorney in the surrogacy process
A family law attorney – or one who specializes in surrogacy – will be able to help you draft an agreement and a pre-birth order. Legal representation can also provide advice before you sign a contract drafted by another party. As with all legal matters, remember to seek your own legal counsel – instead of relying on someone who may not have your best interests in mind.
Laws from state to state
Surrogacy laws are not uniform across the United States. Each state has the authority to regulate – or restrict – surrogacy arrangements within its borders.
Some states explicitly allow and enforce surrogacy contracts, while others impose limits such as:
- Restrictions on surrogate compensation
- Requirements that agreements mirror adoption laws
- The ability to void contracts during or shortly after pregnancy
In some states, surrogacy may be illegal altogether. Because the U.S. Supreme Court has not issued a definitive ruling on surrogacy agreements, state courts ultimately determine enforceability.
Before entering into any surrogacy arrangement – or making or accepting payment – it’s essential to understand the laws in your state. Doing so early can help reduce legal risk, emotional stress and unexpected financial consequences.