By FindLaw Staff | Legally reviewed by Nicole Prebeck, Esq. | Last reviewed December 14, 2022
This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw’s team of legal writers and attorneys and in accordance with our editorial standards.
The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area.
Drafting a surrogacy contract is tricky business, and only experienced attorneys should attempt such a task. Your attorney needs your input, however, in drafting an agreement that reflects your wishes. Following is a checklist of items to help you think about what terms you want to include in your surrogacy agreement, whether you are the surrogate or the couple using the services of a surrogate. It is important to note that the couple and the surrogate need a separate and independent counsel to ensure that their best interests are protected and to avoid a potential conflict of interest.
Below is a checklist to be used for drafting your surrogacy contract.
| ____ | Date of the agreement |
| ____ | Names of the parties, including both prospective parents and the surrogate |
| ____ | Statement that all parties are of the age required by their state |
| ____ | Agreement by the surrogate to submit to requested physical and psychological exams |
| ____ | Details of the surrogate's health insurance coverage, and her agreement to keep existing coverage in full force and effect |
| ____ | Agreement of the prospective parents and surrogate to the assisted reproductive technology procedures involved and placement of fertilized embryo(s) in the uterus of the surrogate |
| ____ | Agreement as to the maximum number of attempts to achieve a pregnancy |
| ____ | Agreement that the surrogate will not engage in intercourse during the attempts to achieve a pregnancy |
| ____ | Agreement that the surrogate will not terminate the pregnancy unless her own life is at risk or unless otherwise agreed upon in writing (for instance, if the fetus has significant problems and may not be compatible with life) |
| ____ | Agreement by the surrogate to refrain from smoking, drinking, and using illicit drugs during the pregnancy |
| ____ | Agreement that the surrogate will obtain regular prenatal medical care, with/without the prospective parent(s) in attendance |
| ____ | Agreement that the surrogate will submit to any medical testing requested by the prospective parents or required by the medical professional |
| ____ | Agreement regarding the diet of the surrogate during the pregnancy |
| ____ | Agreement regarding any restrictions on the activities of the surrogate during the pregnancy |
| ____ | Agreement that the prospective parents will/will not be present for the birth of the child |
| ____ | Agreement that the surrogate and her husband, if any, will have no claim to physical or legal custody of the child born as a result of the surrogacy |
| ____ | Agreement by the surrogate to the termination of her parental rights upon the birth of the child |
| ____ | Agreement that it is in the child's best interests that s/he be raised by the prospective parents |
| ____ | Agreement that custody of the child will be relinquished to the father and mother as soon as possible after birth |
| ____ | Agreement regarding the financial terms of the arrangement (including reimbursement, payment for uninsured pregnancy-related medical expenses, provisions on how this will be covered if insurance doesn't cover the surrogate, payment for psychological counseling, payment for maternity wear, payment for lodging and other living expenses if the surrogate relocates to be near the mother and father, payment of travel expenses, etc.) |
| ____ | Agreement as to compensation should the pregnancy not proceed to term |
| ____ | Confidentiality agreement |
| ____ | Governing law |
| ____ | Statement that the contract constitutes entire agreement |
| ____ | Severability clause |
| ____ | Signatures |
For couples that struggle with infertility or other issues related to pregnancy, surrogacy offers the hope of parenthood. However, as with most arrangements in society, especially ones with such far-reaching implications, it's important for everyone to understand their legal and contractual obligations before moving forward.
Because so much can be at stake with a surrogacy contract, it's imperative to speak with an experienced family law attorney before signing the dotted line.
Contact a qualified family law attorney to make sure your rights are protected.
Get tailored family law advice and ask a lawyer questions. Many attorneys offer free consultations.