Important: Surrogacy law varies by state and can depend on delivery location, family structure, genetics and other facts. This page is educational only and should not replace advice from qualified reproductive counsel licensed in the relevant jurisdiction.

1. Separate legal counsel

ASRM recommends independent legal counsel for the gestational carrier and for the intended parent or parents. Each attorney should advise their own client on the agreement, applicable law, legal risks and the parentage plan.

2. The gestational-carrier agreement

The agreement should address the central legal and practical issues of the journey, including:

  • Compensation, reimbursements and escrow arrangements.
  • Medical expenses and insurance responsibilities.
  • Expectations concerning prenatal testing, pregnancy management and delivery.
  • Medical decision-making and the gestational carrier's autonomy over her own care.
  • Communication expectations and journey logistics.
  • Allocation of foreseeable risks and responsibilities.
  • The intended parentage process.
  • What happens if circumstances change before transfer or during pregnancy.

For a more detailed review of provisions to discuss with counsel, use the surrogacy contract checklist for intended parents.

3. Legal clearance before treatment

ASRM recommends that a fully executed legal agreement and legal-clearance documentation be in place before treatment begins. Fertility-clinic procedures and sequencing can vary, so the clinic and attorneys should confirm when legal clearance is required for the specific journey.

4. Parentage procedure

There is no single nationwide parentage route. Some states expressly regulate gestational surrogacy and provide statutory procedures. In other jurisdictions, parentage may depend more heavily on court orders, case law or different statutory mechanisms.

Depending on the jurisdiction and circumstances, legal steps may be available before birth, may be required after birth, or may involve both pre-birth and post-birth actions. Read the pre-birth vs. post-birth parentage order guide for the distinction.

5. Hospital and vital-record planning

The legal team should coordinate the expected parentage documents with the hospital and explain how state vital-record procedures are expected to apply. It is not safe to assume that every state issues the initial birth record in the same way or that a pre-birth order automatically produces the same result everywhere. See the surrogacy birth certificate and parentage guide and the hospital birth-plan checklist.

Questions to ask your attorney

  1. Which jurisdiction's law applies to this arrangement?
  2. What requirements must be satisfied for the agreement to be enforceable?
  3. What parentage procedure is expected in the delivery state?
  4. What legal documents should the hospital receive before delivery?
  5. How are insurance, escrow and compensation obligations documented?
  6. What additional steps could be required after birth?

Related guides

Surrogacy contract checklist · Surrogacy legal fees · Parentage orders · Birth certificate & parentage · Surrogacy by state · Medical process