A surrogacy contract checklist should cover separate counsel, parentage, medical choices, transfer terms, pay and expenses, escrow, insurance, privacy, pregnancy events, delivery, and post-birth work. It should also address changes.
This checklist prepares intended parents for legal review. It is not a contract or legal advice. State law varies, and each side needs its own licensed attorney.
Build the fact file before reviewing clauses
Nia and Chris lived in Colorado. Their gestational surrogate, Lauren, lived in California, and the fertility clinic was in Nevada. A generic checklist could not tell them which state’s law controlled each issue.
Before the first contract call, they gave counsel a clear fact file:
- Full legal names, addresses, and marital status.
- The surrogate’s state and expected delivery state.
- The clinic and planned transfer location.
- The source of eggs, sperm, and embryos.
- Any donor agreements and clinic consents.
- The clinic’s embryo transfer plan.
- The surrogate’s insurance review.
- Agreed compensation and expense terms.
- Escrow provider details.
- International citizenship or travel concerns.
Use How to Choose a Surrogacy Lawyer when selecting counsel for the journey.
The core surrogacy contract checklist
1. Parties, intent, and parentage
The agreement should identify the intended parent or parents, the surrogate, and any spouse or partner whose legal status matters. It should state the parties’ intent about parentage and non-parentage.
Ask:
- Which state’s law is expected to apply?
- Where and when may a parentage case be filed?
- Does donor use or lack of a genetic link change any step?
- What if delivery occurs in another state or hospital?
- Are any post-birth or adoption steps expected?
The contract does not replace a court order. Track that work separately with Surrogacy Parentage Order.
2. Independent legal advice and clearance
The intended parents and surrogate should not share one lawyer. ASRM’s gestational-carrier guidance calls for each party or couple to have independent legal counsel licensed in the relevant state.
California Family Code section 7962 requires separate independent licensed attorneys of each side’s choosing before the agreement is signed. It also bars embryo transfer and the start of injectable transfer medication until the agreement has been fully executed under the statute.
Nia and Chris put “legal clearance received by clinic” on the shared timeline. They waited for formal clearance, not just signed PDFs.
3. Medical care and the surrogate’s choices
The agreement should record shared expectations about prenatal care, testing, pregnancy management, delivery, and urgent communication. It should not claim ownership over the surrogate’s body or promise that every medical event will follow a plan.
Discuss:
- Which clinic and obstetric providers are expected.
- Appointment and information-sharing expectations.
- Prenatal tests the parties have discussed.
- Travel or activity expectations and limits.
- Vaccination discussions.
- Fetal diagnosis and high-risk care.
- Labor, delivery, and hospital preferences.
- Who may receive medical information and under what release.
ASRM states that an agreement should not contradict the gestational carrier’s protected reproductive decision-making. Medical choices also require informed consent between Lauren and her treating clinicians.
4. Embryo transfer terms
The contract and legal-clearance letter may address the maximum number of embryos per transfer, the number of agreed attempts, and time limits. These terms should match the clinic’s medical recommendations and the surrogate’s consent.
Ask what happens if:
- The clinic changes its recommendation.
- An embryo does not survive thaw.
- A transfer is canceled.
- The parties want another attempt.
- Embryos are moved to another clinic.
- The agreement’s time period ends.
Nia, Chris, and Lauren agreed on a single-embryo approach based on the clinic plan. They also made the procedure for discussing a changed recommendation clear. The contract did not guarantee a transfer or pregnancy.
5. Compensation, expenses, and escrow
List each payment and reimbursement category. State when it starts, what proof is needed, who approves it, and what happens when an amount is disputed.
Common topics include base compensation, travel, mileage, lost wages, childcare, housekeeping, maternity clothing, invasive procedures, bed rest, canceled cycles, miscarriage, multiple pregnancy, pumping, and recovery needs.
The agreement should match the escrow instructions. Ask:
- When must escrow be fully funded?
- Who gives payment instructions?
- How often are statements issued?
- What reserve must remain?
- Who receives notice if funds run low?
- What happens to unused funds after all duties end?
6. Insurance and medical bills
Do not settle this section with “surrogate has insurance.” The agreement should state how pregnancy-related medical costs and newborn costs are expected to be funded, including deductibles, copays, premiums, uncovered care, liens, and backup coverage when relevant.
California section 7962 requires disclosure of how intended parents will cover medical expenses for the surrogate and newborn. When health coverage is used, the law calls for review of policy terms related to surrogate pregnancy, possible liability, liens, other coverage, and notice requirements.
Nia and Chris had the insurance findings reviewed before contract terms were final. They scheduled another check at renewal. Read When to Review Surrogacy Insurance for the timing points.
7. Pregnancy complications, loss, and changed plans
The contract should address the process for events no one wants, without pretending to predict them. These may include miscarriage, ectopic pregnancy, fetal diagnosis, extended hospital care, loss of reproductive organs, pregnancy termination discussions, stillbirth, or the death or incapacity of a party.
Focus on communication, decision authority, support, expenses, and legal steps. Do not use a checklist to pressure the surrogate about a medical choice.
8. Communication, privacy, and relationships
Set a workable rhythm for updates without demanding constant access. Address direct contact, agency contact, medical portals, emergencies, social media, photos, announcements, and information shared with relatives.
Nia wanted weekly updates. Lauren preferred a shared group message after appointments. They wrote a plan that gave Nia reliable contact and Lauren breathing room. They also agreed that no one would announce the pregnancy online without checking with the others.
9. Delivery and post-birth work
Cover the expected hospital, birth-plan coordination, parentage documents, medical decision-making for the baby, rooms and access when possible, discharge, breast-milk or pumping plans, travel, and final expense submissions.
Ask who contacts the hospital and when. Plan for an early birth or a different hospital. The hospital follows medical policy and legal documents; it does not rewrite the contract at the bedside.
Stress-test the agreement with three moments
Before signing, ask each lawyer to walk through:
- A canceled transfer: Who is told, which costs are paid, and how is another attempt approved?
- A policy change at renewal: Who orders a new review, and how are added costs handled?
- An early birth in another state: Which lawyer, hospital contact, and parentage steps activate?
If the answer is “we will figure it out later,” the contract may need clearer ownership of the task.
Final decision checklist for intended parents
- Each side has separate counsel and enough time to review.
- The relevant states and expected birth location were analyzed.
- Donor documents and clinic consents match the contract.
- Parentage work, timing, and responsible counsel are named.
- Medical expectations respect the surrogate’s consent and choices.
- Transfer limits match the current clinic plan.
- Every compensation and expense category has a payment process.
- Escrow funding, statements, reserves, and closeout are clear.
- Insurance findings and uncertainty are stated without a coverage promise.
- Difficult pregnancy events have a communication and support process.
- Privacy, contact, and social media rules are workable.
- Delivery, newborn, and post-birth duties have owners and deadlines.
- Change, dispute, breach, death, and incapacity terms were reviewed.
- The clinic receives formal legal clearance before treatment starts.
Keep related tools together at Legal and Insurance Protection Resources.
FAQs
Can intended parents and a surrogate use the same lawyer?
They should have separate independent counsel. California law expressly requires it for agreements under section 7962, and ASRM guidance supports independent counsel for each party or couple. Ask local counsel what the relevant state requires.
Does a signed contract guarantee parentage?
No. State law, statutory compliance, court filings, donor facts, birth location, and other details can affect the process. The attorney should explain the parentage steps that follow the agreement.
Can the contract force a medical procedure?
A contract can record expectations and duties, but the surrogate remains the person receiving medical care and giving consent. ASRM cautions against terms that contradict her protected reproductive decision-making.