Gestational surrogacy requirements fall into three layers: state law, which decides whether a surrogacy contract is enforceable and who the child’s legal parents are; medical guidelines from the American Society for Reproductive Medicine, which set the baseline for who can serve as a carrier; and the individual rules of the agency and fertility clinic handling the match. A candidate has to clear all three before an embryo transfer can happen.
What Gestational Surrogacy Means
In a gestational arrangement, the embryo is created through IVF using the eggs and sperm of the intended parents, donors, or some combination. The carrier contributes no genetic material. That single fact is what makes gestational surrogacy legally cleaner than traditional surrogacy, where the carrier’s own egg is used and she is the genetic mother. Most agencies, clinics, and attorneys only work with gestational arrangements, and many states that enforce gestational surrogacy contracts will not enforce traditional ones.
Under a gestational surrogacy contract, the carrier is providing a service. She is not a parent to the child, and the contract, the parentage order, and (in states following the Uniform Parentage Act) the statute itself all confirm that before the baby is born.
Who Qualifies as a Gestational Carrier
ASRM guidelines are not law, but reputable clinics and agencies follow them closely, and a program that waves them off without a clear reason exposes itself to liability.
Age and Pregnancy History
Carriers should be between 21 and 45. Below 21, applicants lack the legal capacity the Uniform Parentage Act requires; above 45, pregnancies carry elevated risks of hypertension, gestational diabetes, and chromosomal complications.1American Society for Reproductive Medicine. Recommendations for Practices Using Gestational Carriers: A Committee Opinion (2022)
A candidate must have completed at least one full-term, uncomplicated pregnancy of her own before applying. This proves her fertility and gives her firsthand knowledge of what she is signing up for. A history of preeclampsia, preterm labor, or gestational diabetes in any prior pregnancy is typically disqualifying.
Delivery Limits
The ASRM recommends a ceiling of five total prior deliveries or three prior cesarean sections.1American Society for Reproductive Medicine. Recommendations for Practices Using Gestational Carriers: A Committee Opinion (2022) Each additional delivery increases the risk of uterine complications, and repeated cesareans raise the odds of placenta accreta and surgical problems in a future pregnancy.
Health and Infectious Disease Screening
Before any embryo transfer, the candidate and her partner undergo lab work covering HIV (types 1 and 2), hepatitis B and C, syphilis, gonorrhea, and chlamydia, among other infections. A confirmed HIV or hepatitis result generally disqualifies the candidate. Treatable infections such as syphilis or chlamydia must be successfully treated and documented before the process moves forward.1American Society for Reproductive Medicine. Recommendations for Practices Using Gestational Carriers: A Committee Opinion (2022)
A urine drug screen is part of the standard panel. Smoking and recreational drug use are non-negotiable disqualifiers during screening and throughout the pregnancy. Agencies and clinics also set physical benchmarks for body mass index and cardiovascular health, with specific BMI cutoffs varying by program.
Psychological Evaluation and Lifestyle Checks
ASRM requires every carrier candidate to complete a psychological evaluation performed by a licensed mental health professional who has experience with surrogacy. The carrier’s partner or primary support person has to participate too. The evaluation is repeated for each new surrogacy contract, and anything older than a year has to be redone.1American Society for Reproductive Medicine. Recommendations for Practices Using Gestational Carriers: A Committee Opinion (2022)
The assessment covers more ground than most applicants expect. It includes a full clinical interview on psychiatric history (depression, anxiety, bipolar disorder, eating disorders, perinatal mood disorders), substance use, sexual and reproductive trauma, prior custody disputes or child welfare involvement, and the candidate’s motivation. Standardized psychological testing runs alongside the interview. The evaluator is looking for emotional stability, strong support systems, and the maturity to carry a pregnancy that builds another family.
Most agencies also run a criminal background check on the carrier and any adults in her household, and many require evidence of financial stability. Programs want to see that the household can function without the surrogacy payment, so money is not the primary driver. These lifestyle screens are not legally required in most states, but they are standard at reputable agencies and are often written into the contract.
Contract Requirements and Independent Legal Counsel
A gestational surrogacy contract is the backbone of the arrangement. The Uniform Parentage Act requires that both the intended parents and the carrier have independent legal counsel throughout the process, and that the intended parents pay for the carrier’s attorney.2FactCheck.org. Uniform Parentage Act (2017) Several states that have not adopted the UPA impose their own independent-counsel rules. The carrier’s attorney reviews every term with her, explains the consequences, and negotiates changes before she signs.
Contracts typically define compensation, reimbursable expenses, health insurance arrangements, behavioral expectations during pregnancy, and what happens if the pregnancy involves medical complications. They also address sensitive scenarios: selective reduction in a multiples pregnancy, termination for fetal abnormality, and what happens if either side wants out. These clauses appear in nearly every surrogacy contract, but enforceability varies by state, and a pregnant woman keeps her constitutional right to make her own medical decisions even when the contract says otherwise.
The agreement should also spell out what counts as a material breach, the notice-and-cure process, and the remedies available to the non-breaching party. Misrepresenting medical history or a criminal record during screening can be a breach that ends the arrangement and triggers damages. The financial consequences depend entirely on the contract language, which is why the independent-counsel rule exists.
State Law and Who Becomes the Legal Parent
Surrogacy law in the United States is entirely state-driven, and the differences are dramatic. In the most supportive states, courts issue pre-birth orders that put the intended parents on the birth certificate before delivery. In a handful of states, surrogacy contracts are void by statute and a court will not enforce them. Most states sit in between, with parentage outcomes shaped by marital status, genetic connection, or the county where the case is filed.
The Uniform Parentage Act, published by the Uniform Law Commission and most recently updated in 2017, provides the clearest statutory framework. Under Section 809, each intended parent becomes a legal parent “by operation of law” the moment the child is born, and neither the carrier nor her spouse is considered a parent.2FactCheck.org. Uniform Parentage Act (2017) No separate court proceeding after birth is required. Not every state has adopted the 2017 version, so families should confirm how both their home state and the birth state handle parentage before signing anything.
Where pre-birth orders are not available, families may need a post-birth court proceeding or, in some cases, a second-parent or stepparent adoption to lock in both parents’ rights. The added time and expense of post-birth proceedings is one reason attorneys pay close attention to which state the carrier will deliver in.
Cost and Carrier Compensation
A full gestational surrogacy journey in the United States runs roughly $140,000 to $170,000, and in high-demand states can exceed $200,000. That figure covers the agency match through delivery. The main line items are carrier compensation ($60,000 to $75,000 or more for a first-time carrier), IVF and medical care ($15,000 to $30,000), agency fees ($20,000 to $35,000), legal work and escrow ($8,000 to $15,000), and insurance ($10,000 to $25,000). Many states require or strongly encourage intended parents to deposit funds into an escrow account or attorney trust before the embryo transfer, so the carrier is paid regardless of what happens during the pregnancy.
First-time carriers typically start with base compensation around $60,000, with total packages of $75,000 to $80,000 once monthly allowances, maternity clothing stipends, embryo transfer fees, and other structured payments are included. Experienced carriers and those carrying multiples command higher pay. Every dollar amount, payment schedule, and reimbursable expense category is defined in the contract.
Tax treatment of carrier compensation is unsettled. The IRS has never issued a formal ruling on surrogacy pay, and how a payment is characterized in the contract affects whether it is treated as taxable income under the general gross-income rule.3Office of the Law Revision Counsel. 26 U.S. Code 61 – Gross Income Defined A tax professional with surrogacy experience is worth the fee.
Insurance Before the Embryo Transfer
Health insurance is one of the most overlooked and expensive variables in a surrogacy journey. ACA-compliant plans must include maternity coverage, but maternity coverage does not automatically mean surrogacy coverage. Many group health plans explicitly carve out pregnancy charges when the member is acting as a surrogate. Even plans without an explicit exclusion may deny claims on the grounds that the pregnancy benefits a non-member.
Before any medical procedures begin, the carrier’s existing policy should be reviewed by a specialist who understands surrogacy exclusions. If the policy does not cover surrogacy or has significant gaps, the intended parents typically buy a supplemental surrogacy policy, which runs roughly $400 to $700 per month depending on the state and provider. The cost sits inside the intended parents’ overall budget and is paid through escrow. Resolving insurance after the transfer, instead of before, can leave the intended parents liable for six-figure hospital bills at delivery.
Documents to Have Ready
Screening moves faster when a candidate shows up with her paperwork already assembled. The most important records are complete medical files from every prior delivery, including prenatal charts, lab results, and hospital discharge summaries. Agencies and clinics verify these directly with the treating providers, so having contact information for prior obstetricians ready saves weeks.
Candidates should also pull their current health insurance policy documents for the specialist review described above. That analysis needs to happen early, because discovering a surrogacy exclusion after the match is finalized creates delays and adds cost. Most hospital systems allow electronic record requests through patient portals, though some offices still require a signed release form.