What Makes a Gestational Agreement Enforceable
States that permit gestational agreements impose a checklist rather than a general standard of fairness. Each item on the list has a purpose, and an agreement that misses one of them can fall outside the framework entirely, losing the protection the statute was written to provide.
The rule in short
Enabling statutes require a written agreement signed by the person acting as surrogate, that person's spouse if any, and each intended parent, with signatures notarized or witnessed. Independent legal representation is required for each side and is paid for by the intended parents. Eligibility conditions commonly include a minimum age, a prior birth, and completed medical and mental health evaluations. The agreement must be executed before any medical procedure under it begins.
States that permit surrogacy do not ask whether an agreement is fair in some general sense. They ask whether a list of conditions was met. The list is short, the items are objective, and an agreement that satisfies them is enforceable while one that does not may fall outside the framework altogether.
The writing and the signatures
Every enabling statute requires a record. The agreement must be in writing and signed by each intended parent, by the person acting as surrogate, and by that person's spouse if there is one. The spouse's signature is not a formality: it addresses the presumption of parentage that would otherwise attach to a child born to a married person.
Signatures must be attested. Statutes require notarization, or witnessing by an equivalent method recognized where the agreement is executed. Each party must acknowledge in a record having received a copy of the agreement.
A nexus requirement is common. In the uniform model, at least one party must reside in the state, or if none does, at least one medical evaluation, procedure or mental health consultation under the agreement must occur there. That provision determines which state's law the parties can actually rely on.
Independent counsel
The requirement that each side be separately represented is the item most often treated casually and most often decisive. Statutes require the person acting as surrogate and the intended parents to have independent legal representation throughout the arrangement, concerning the terms of the agreement and its potential legal consequences, with each lawyer identified in the agreement itself.
Statutes also allocate the cost. The intended parents pay for the surrogate's independent representation. That allocation exists because the requirement would be illusory if the party with fewer resources had to fund it.
Shared representation does not satisfy the requirement, and neither does a lawyer selected and paid by the intended parents who also represents them. California states the point directly by requiring the surrogate and the intended parents to be represented by separate independent licensed attorneys of their choosing before the agreement is executed.
| Requirement | Typical content | Purpose it serves |
|---|---|---|
| Signed record with attested signatures | Writing signed by all parties, notarized or witnessed | Fixes terms and identifies who is bound |
| Independent counsel for each side | Separate lawyers, named in the agreement, paid by intended parents | Ensures the surrogate is separately advised |
| Minimum age and prior birth | Commonly at least twenty-one and at least one previous live birth | Informed consent grounded in experience |
| Medical evaluation | Completed before the agreement is signed | Assessment of physical suitability |
| Mental health consultation | Completed before the agreement is signed | Assessment of understanding and expectations |
| Execution before any procedure | Signed before transfer or medication begins | Prevents terms being settled after a pregnancy |
Statutes require the agreement to be executed before any medical procedure under it takes place, other than the evaluations the statute itself requires. California adds that the parties may not undergo an embryo transfer, or begin injectable medication in preparation for one, until the agreement is fully executed. Clinics that begin a cycle while the contract is being negotiated put the arrangement outside the statute, and the problem cannot be cured by dating the document earlier.
Eligibility of the parties
Statutes set conditions on who may enter these agreements. In the uniform model a person acting as surrogate must have attained a minimum age, must have previously given birth to at least one child, must have completed a medical evaluation relating to the arrangement, and must have completed a mental health consultation. Intended parents must satisfy the corresponding age and evaluation conditions.
Other states use different gates. Florida conditions a gestational surrogacy contract on the intended mother's inability to gestate a pregnancy to term, or on the risk that gestation would pose to her or to the fetus, as determined by a physician, and sets a minimum age for the parties.
These conditions are checked when a parentage order is sought, so they are not merely contractual. A court asked to enter an order under the framework will look for the evaluations and the eligibility findings in the record.
Gestational and genetic arrangements
The uniform model separates two kinds of agreement. In a gestational arrangement the person carrying the pregnancy has no genetic connection to the child. In a genetic arrangement that person's own gamete was used.
Gestational agreements that comply with the eligibility and process requirements are enforceable without any prior court involvement. Genetic agreements are treated differently: they require validation by a court before an assisted reproduction procedure occurs, and an unvalidated genetic agreement is governed by a separate provision that gives the person who gave birth a window in which to withdraw consent.
The distinction reflects the difference in what the arrangement asks. States that have adopted the framework accept intent as the basis for parentage where there is no genetic link, and require judicial oversight where there is one.
What a compliant agreement produces
Compliance makes the agreement enforceable and opens the route to a parentage order. Statutes provide that a party may commence a proceeding, before or after birth, for an order declaring each intended parent to be a parent, declaring that the person who gave birth and that person's spouse are not parents, and directing the vital statistics registrar accordingly. That procedure is set out in obtaining an order in advance of the birth.
It also limits what remains negotiable. Provisions purporting to control the pregnant person's medical decisions, or to require or forbid a particular medical outcome, are unenforceable in the states that address them, and the termination provisions run only until a defined point in the process.
Two terms deserve attention when the agreement is drafted, because statutes leave them to the parties. The first is what happens if an intended parent dies, divorces or withdraws before the birth. Several statutes address the death of an intended parent expressly and provide that the parentage provisions still apply, but only where the agreement so states, so silence produces a different result from an express clause.
The second is health coverage and cost allocation. Statutes require the agreement to describe how the surrogate's medical expenses and the newborn's will be paid, and to review whether any policy relied on actually covers a surrogate pregnancy. Policies frequently exclude it or assert a lien against the intended parents, and the disclosure requirement exists because the parties discover this at the hospital otherwise.
Where the arrangement uses donated gametes, a separate set of rules determines whether the donor has any parental status, addressed in the conditions attached to the donor exclusion. Where a state has no enabling statute at all, the parties may end up relying on an adoption to establish the non-birthing parent's status, and the requirements described in the home study and its automatic bars then apply.
Points to carry away
- The agreement must be in a signed record, with each signature notarized or witnessed.
- The person acting as surrogate and the intended parents must each have independent counsel, identified in the agreement.
- Intended parents are generally required to pay for the surrogate's independent representation.
- Eligibility conditions commonly include a minimum age, at least one prior birth, and medical and mental health evaluations.
- The agreement must be executed before any medical procedure under it, other than the required evaluations.
- A genetic surrogacy agreement requires court validation before it is enforceable in states following the uniform model.
Questions readers ask
What happens if a required step was skipped?
The consequence is usually loss of the statute's protection rather than criminal exposure. Where an agreement does not meet the requirements, some statutes provide that it is unenforceable as an agreement while directing the court to determine parentage under the general parentage provisions, taking into account the parties' intent. Others treat the parties as being outside the enabling framework entirely, which can mean an adoption is needed to establish the non-birthing parent's status. The outcome differs enough by state that the checklist is worth following literally.
Are compensation terms permitted?
In states that have enacted a comprehensive framework, yes, subject to conditions. Statutes typically permit reimbursement of medical and related expenses and reasonable compensation, and require the agreement to specify how expenses will be paid and how health coverage will operate. Some states permit only reimbursement. A minority of states decline to enforce compensated arrangements at all, and a few treat them as unlawful, so the compensation question is the first one to resolve when the parties are in different states.
Can the agreement be terminated once it is signed?
Statutes generally allow any party to terminate before an embryo transfer or, in a genetic arrangement, before insemination, by giving notice in the manner the agreement or the statute specifies. After a pregnancy is established the termination provisions narrow considerably, and the parentage consequences are fixed by the framework rather than by the parties' later agreement. Provisions purporting to control the surrogate's medical decisions during pregnancy are treated as unenforceable in the states that address the question.
Sources
- Revised Code of Washington § 26.26A.710, Requirements of gestational or genetic surrogacy agreement — ProcessSets the signature, notarization, independent counsel and timing requirements.
- Revised Code of Washington § 26.26A.705, Eligibility to enter gestational or genetic surrogacy agreementStates the age, prior birth, medical evaluation and mental health consultation conditions.
- Revised Code of Washington § 26.26A.755, Gestational surrogacy agreement — EffectMakes an agreement enforceable where it complies with the eligibility and process provisions.
- Revised Code of Washington § 26.26A.760, Genetic surrogacy agreement — Requirements for validationRequires court validation before a genetic surrogacy agreement is enforceable.
- California Family Code § 7962, Assisted reproduction agreement for gestational carriersRequires separate independent counsel, notarized signatures and execution before any transfer procedure.
- Florida Statutes § 742.15, Gestational surrogacy contractSets a different state model, with eligibility conditions tied to medical necessity.
- Uniform Law Commission, Parentage ActThe uniform act supplying the gestational and genetic surrogacy structure adopted in several states.
Metro Law Advisors is a publication, not a law firm. This article states general rules and cites its sources; it is not advice about any particular case, and the law differs by state and changes over time.
More in Adoption & Reproduction
Getting a Parentage Order Entered Before Birth
In states with an enabling framework, a party to a surrogacy agreement may seek an order declaring each intended parent to be a parent, declaring the person who gave birth and any spouse not to be parents, and directing the registrar to record the intended parents on the birth record. The court may issue the order before birth and stay enforcement until delivery. Other states enter an order only after birth, sometimes on an expedited timetable measured in days.
The Revocation Window After Consent Is Signed
Consent statutes set a minimum interval after birth before a birth parent may sign, then a revocation period measured either in days or by reference to court approval. Some states make consent binding on execution for a newborn and allow only fraud or duress as a later challenge. Others allow a fixed number of days, or a waiver of the right to revoke signed with counsel. Federal law adds a separate rule where the child is an Indian child.
The Putative Father Registry and the Deadline Running Against It
Most states maintain a registry where a man who believes he may have fathered a child files identifying information to preserve a right to notice of an adoption or termination proceeding. Registration does not establish paternity and confers no custody. Deadlines are short, commonly measured from the child's birth or from the filing of a petition. A certificate that a search found no filing lets a court proceed without notice to any unregistered man.