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You’re building a family in one of the most hopeful ways possible, and the people helping you deserve just as much protection as the people you’re building it for. That’s what the surrogacy agreement is for. It’s the document that turns intention into something enforceable, laying out compensation, medical decisions, and parentage before anyone takes a step toward an embryo transfer, and the terms that actually hold up depend on the law of the state where your surrogate lives and gives birth.
Getting it right takes care, and it should feel like part of the hope in this journey, not a hurdle standing in front of it. Here at The Family Law & Fertility Law Group, we’ve been part of surrogacy journeys since 1986, and we help families build theirs across Ohio, Kentucky, Illinois, and Michigan every year.
Reach out, and we’ll walk through what your surrogacy agreement should include, so you can stay focused on the family you’re building.
Understanding the Surrogacy Agreement
The first phase of the legal work in a surrogacy journey is the drafting and negotiation of the surrogacy agreement. The surrogacy agreement lays out the fundamental purpose and intent of the arrangement – that an embryo belonging to intended parent(s) will be transferred into the uterus of the gestational carrier, who will then gestate and deliver a child belonging to intended parent(s).
The surrogacy agreement provides a roadmap for the journey to come. And the surrogacy agreement clearly lays out the parties’ rights and obligations, including compensation and expenses. Whether representing intended parents or surrogates, our attorneys ensure each client has an agreement in place that is fair and protects their interests. Learn more about the necessity for legal counsel in surrogacy arrangements.
What a Surrogacy Agreement Should Cover?
A surrogacy agreement is a detailed contract that needs to address far more than the basic intent to build a family. A well-drafted agreement typically covers:
- Intent and embryo transfer terms, including who is genetically related to the child and when parentage is established
- Base compensation for the surrogate and the payment schedule, usually released in monthly installments once pregnancy is confirmed
- Reimbursed expenses, such as travel, maternity clothing, lost wages, childcare, and counseling
- Medical decision-making and lifestyle guidelines during the pregnancy
- What happens if an embryo transfer fails, a pregnancy ends early, or the surrogate is placed on bed rest
- Escrow management, so compensation and expense funds are held and released on a set schedule
- A requirement that the surrogate and the intended parents each have their own, separate attorney
The American Society for Reproductive Medicine’s Ethics Committee treats independent legal counsel for the surrogate, paid for by the intended parents, as a baseline protection rather than an optional extra, and most fertility clinics will not schedule an embryo transfer until a signed agreement is in place. Intended parents should also understand how health insurance works with surrogacy, since insurance coverage can affect the financial terms of the arrangement.
Why State Law Matters in a Surrogacy Agreement?
Surrogacy law is not uniform across the country, and a surrogacy agreement that works well in one state can be incomplete, or even unenforceable, in another. Some states have detailed surrogacy statutes that spell out exactly what an agreement must contain.
Illinois, for example, has its own Gestational Surrogacy Act, which sets specific requirements for eligibility, independent counsel, and medical and mental health evaluations before an agreement can be relied on.
Other states rely on court decisions and general contract law rather than a dedicated statute, which means enforceability can depend more heavily on how the agreement is written and on the practices of the specific county or court involved.
Michigan took a different path again: for decades, compensated surrogacy agreements were void and even criminalized there, until the state adopted the Assisted Reproduction and Surrogacy Parentage Act, which took effect in 2025 and now allows and regulates surrogacy arrangements. For more details, read about Michigan’s new surrogacy law.
Because the requirements, enforceability, and court procedures differ from state to state, a surrogacy agreement should be drafted, or at minimum reviewed, with the law of the state where the surrogate lives and where the birth will occur specifically in mind, not only the state where the intended parents live.
Our attorneys regularly handle surrogacy matters connected to Ohio, Kentucky, Illinois, and Michigan, and since 1986 our firm has been involved in this practice area as it has developed differently in each of those states. We tailor every surrogacy agreement to the law of the state where it will actually need to hold up.
Frequently Asked Questions
Is a written surrogacy agreement legally required?
Most fertility clinics will not begin an embryo transfer without a signed surrogacy agreement, and courts rely on the agreement to help establish parentage. Without one, compensation, medical decision-making, and parentage all remain undefined.
Can the intended parents and the surrogate use the same attorney?
No. Separate, independent legal counsel for the surrogate and the intended parents is standard practice, and it is a specific legal requirement in states with surrogacy statutes, including Illinois.
What does surrogate compensation typically include?
Base compensation for the surrogate’s time and effort, plus reimbursement for costs such as travel, maternity clothing, lost wages, and childcare. These funds are usually held in escrow and released on a set schedule.
What happens if the embryo transfer fails or the pregnancy ends early?
A well-drafted agreement addresses compensation, medical decisions, and next steps if a transfer fails, a miscarriage occurs, or the surrogate is placed on bed rest, so neither party is left without a plan. Understanding the surrogacy timeline can also help intended parents prepare for the stages involved.
Do surrogacy laws really differ from state to state?
Yes, significantly. Some states have detailed surrogacy statutes, others rely on court decisions and general contract law, and a few restrict certain arrangements outright. The agreement should reflect the law of the state where the birth will take place.
Who pays for the surrogate’s attorney?
Standard practice is for the intended parents to cover the surrogate’s independent legal fees as part of the overall arrangement, so cost is not a barrier to her having her own representation.
How long does it take to finalize a surrogacy agreement?
Timing depends on the parties’ schedules and the complexity of the arrangement, but the agreement needs to be fully signed before the surrogate begins any medical procedures related to the transfer, so it is typically negotiated well before a medication cycle starts.
Every surrogacy journey is different, and your agreement should reflect the law of the state involved, your clinic’s requirements, and your family’s specific circumstances. Contact The Family Law & Fertility Law Group to talk through what your surrogacy agreement should include.