Surrogacy laws in the United States are set state by state, not by Congress, so whether a surrogacy agreement is enforceable, who ends up on the birth certificate, and what happens if something goes wrong all depend on where the surrogate gives birth. The Uniform Parentage Act of 2017 gives a model framework that a growing number of states have adopted, but others still rely on older case law or prohibit compensated surrogacy outright. Before signing anything, you need to understand the type of surrogacy you are pursuing, the eligibility and contract rules that make an agreement valid, how parental rights are actually established, and what the law of your chosen state will and will not do for you.
Gestational and Traditional Surrogacy Are Treated Differently
The threshold legal question is whether the surrogate shares DNA with the child. In gestational surrogacy, an embryo is created through in vitro fertilization using eggs and sperm from the intended parents or donors and then transferred to the surrogate, who carries the pregnancy but has no genetic tie to the child. This is the more common arrangement and the far simpler one legally, because the carrier has no biological claim to parentage.
Traditional surrogacy uses the surrogate’s own eggs, which makes her the genetic mother. That biological link complicates everything. Many jurisdictions trigger adoption-like procedures to transfer parental rights in traditional arrangements, and some states that readily enforce gestational contracts refuse to enforce traditional ones at all. Which category you are in determines which statutes apply to nearly every later step.
Eligibility Requirements
Both surrogates and intended parents must meet statutory criteria before an agreement is valid. Under the Uniform Parentage Act, a surrogate must be at least 21, must have previously given birth to at least one child, must complete a medical evaluation by a licensed physician, and must undergo a mental-health consultation with a licensed professional. Intended parents must also be at least 21, complete medical evaluations, and undergo mental-health consultations.1Uniform Law Commission. Uniform Parentage Act (2017)
Medical and psychological screenings for surrogates generally cost between $2,000 and $10,000 and are paid by the intended parents. If any participant fails to meet the statutory criteria, a court can refuse to enforce the agreement, which leaves everyone uncertain about who the child’s legal parents are.
Some jurisdictions add further requirements. A handful still require intended parents to be legally married, though that restriction has been declining. Others impose residency rules, meaning at least one party or one medical procedure must be located in the state. The Uniform Parentage Act takes the residency approach, requiring either a resident party or an in-state medical procedure.1Uniform Law Commission. Uniform Parentage Act (2017)
What the Surrogacy Contract Must Include
The written agreement is the legal backbone of the arrangement. It must be signed before any embryo transfer or medical procedure begins, and every signature must be notarized or witnessed. The contract states that the surrogate will not be a legal parent of the child and that the intended parents assume full parental responsibility at birth. It also sets out medical decision-making authority during the pregnancy, including how emergencies and complications will be handled.
Financial terms are a major component. Surrogate compensation typically ranges from $35,000 to $70,000 depending on experience and location, with additional allowances for maternity clothing, childcare, and lost wages. These funds are usually held in an independent escrow account managed by a third-party company. The contract should detail every category of payment, from medical expenses to monthly allowances, to prevent later disputes.
One requirement surprises many first-time intended parents: both sides must have their own independent attorneys. The Uniform Parentage Act requires the surrogate and the intended parents to maintain separate legal representation throughout the arrangement, and the intended parents must pay for the surrogate’s lawyer.1Uniform Law Commission. Uniform Parentage Act (2017) Legal fees for drafting and reviewing these contracts generally run $5,000 to $10,000. Skipping independent counsel is one of the fastest ways to render an agreement unenforceable.
The contract also serves as the primary evidence of each party’s original intent if a dispute arises. It sets expectations for communication, behavioral standards, and what happens if the relationship between the surrogate and intended parents breaks down.
How Parental Rights Are Established
A signed contract does not make you a legal parent. A court order does. In surrogacy-friendly jurisdictions, intended parents file a petition during the pregnancy asking for a pre-birth order. That order directs the hospital to list the intended parents on the child’s original birth certificate and authorizes the facility to release the infant directly to them after delivery. Where pre-birth orders are not available, intended parents file for a post-birth order shortly after delivery, which produces the same result on a slower timeline.
The petition typically requires the executed surrogacy agreement, affidavits from the fertility clinic, and proof of genetic connection if the jurisdiction demands it. A judge reviews the documents to confirm the arrangement complied with the applicable statutes and that issuing the order serves the child’s interests. Some jurisdictions hold a hearing; others process the petition administratively. Once signed, the order functions as a final judgment of parentage.
After the birth certificate issues with the intended parents’ names, the next step is a Social Security number for the child. Avoid the hospital’s automatic newborn number assignment program, which can mistakenly link the child’s record to the surrogate. Wait until you have the final birth certificate, then file a standard SS-5 application at a local Social Security office in person. There is no fee, and you will need original documents including the birth certificate, any court orders, and your own identification.
When a Surrogacy Agreement Breaks Down
Surrogacy agreements are contracts, and like any contract, they can be breached. Under the Uniform Parentage Act, a gestational surrogacy agreement that meets all statutory requirements is enforceable, and a non-breaching party can pursue the standard legal and equitable remedies available for any contract breach.1Uniform Law Commission. Uniform Parentage Act (2017)
There is one critical limit. Courts will not order a surrogate to become pregnant, to continue or end a pregnancy, or to undergo a medical procedure against her will. Specific performance, the remedy where a court forces someone to do what the contract says, is explicitly unavailable for those provisions. If a surrogate decides to terminate the pregnancy or refuses a recommended procedure, the intended parents’ recourse is financial damages, not a court order compelling her body.
On the other side, if a surrogate refuses to relinquish custody after birth, intended parents can seek specific performance to enforce their parental rights, provided the court has already determined them to be the legal parents. Courts in these disputes weigh the parties’ original intent and the child’s best interests. Where an agreement does not meet all statutory requirements, courts still consider intent at signing, but enforcement becomes far less certain. The gap between a meticulously executed agreement and a sloppy one can be the difference between a straightforward parentage order and years of custody litigation.
Health Insurance Pitfalls
Insurance is where many surrogacy arrangements run into unexpected costs. A surrogate’s existing health insurance policy may not cover a surrogacy pregnancy at all. Some policies carry explicit surrogacy exclusions. Others are what the industry calls “silent” policies, meaning they do not address surrogacy either way. A silent policy is not a safe policy, because the insurer keeps the ability to deny claims or seek reimbursement after the fact.
The most dangerous provision is a clawback clause, which lets the insurer demand repayment of all pregnancy-related medical costs once it discovers the policyholder received compensation for carrying the pregnancy. Prenatal care, delivery, and hospital stays can easily reach tens of thousands of dollars, and a triggered clawback shifts the full amount back onto the parties. ACA-compliant plans must include maternity coverage, but that guarantee does not extend to surrogacy pregnancies.
When the surrogate’s existing coverage will not work, intended parents are responsible for purchasing a replacement policy. Supplemental surrogacy insurance designed to cover gaps and complications typically costs $2,400 to $10,000 depending on scope. A professional review of the surrogate’s existing coverage should happen before matching, not after the pregnancy is underway. Intended parents should also expect to buy a life insurance policy for the surrogate of up to $1 million in the event of a fatal complication, which generally costs under $1,000.
Tax Treatment for Both Sides
For intended parents, the direct costs of surrogacy, including agency fees, surrogate compensation, and the surrogate’s medical care, are not tax-deductible. The IRS allows medical expense deductions only for care that affects the structure or function of the taxpayer’s own body, a spouse, or a dependent. Because a gestational carrier is a third party, her medical expenses do not qualify.
Intended parents can, however, deduct their own IVF-related costs. Fertility medications, lab fees, egg retrieval, embryo creation, and embryo storage tied to immediate medical necessity all qualify as deductible medical expenses when performed on the taxpayer or spouse. The deduction is only available for the portion of medical costs exceeding 7.5 percent of adjusted gross income.2Office of the Law Revision Counsel. 26 USC 213 – Medical, Dental, Etc., Expenses
For surrogates, the picture is murkier. The IRS has not issued definitive guidance on whether surrogate compensation is taxable income. In practice, if a surrogate receives a 1099-MISC with the amount in Box 3, the income is typically reported as “other income.” If she receives a 1099-NEC instead, the compensation may be treated as self-employment income, which carries self-employment tax on top of ordinary income tax. Some intended parents and agencies do not issue 1099 forms at all, but that does not make the income tax-free. A tax professional familiar with this specific area is worth the fee, because misreporting can produce penalties and back taxes.
Why the State You Choose Matters Most
The single biggest variable in any surrogacy arrangement is geography. Some states provide detailed statutory frameworks that spell out how to create an enforceable agreement, obtain a pre-birth parentage order, and protect everyone’s rights. These jurisdictions recognize both compensated surrogacy, where the surrogate receives a fee beyond medical expenses, and altruistic surrogacy, where payments are limited to direct costs.
At the other end, a small number of jurisdictions declare surrogacy contracts void as a matter of public policy. In those states, the agreement is unenforceable regardless of how carefully it was drafted. A few have gone further and imposed criminal penalties for facilitating compensated surrogacy, with fines reaching $10,000 or more and potential jail time. The map is also shifting: several formerly prohibitive states have reformed their laws recently, while others have introduced new restrictions.
The practical consequence is severe. If the contract is unenforceable in the state where the surrogate gives birth, she may be listed as the legal mother on the birth certificate, and the intended parents must then pursue a formal adoption to establish their rights. That process is slower, costlier, and less certain than a parentage order. Choosing where the surrogacy takes place is the decision that determines whether the rest of the legal framework protects you.
Surrogacy Abroad and the Child’s Citizenship
If you are considering surrogacy outside the United States, citizenship for the child is a separate hurdle on top of local law. Children born on U.S. soil receive citizenship automatically, but children born via surrogacy abroad must qualify through a parent’s citizenship. The State Department requires that at least one U.S. citizen parent have a genetic or gestational connection to the child, or be married to someone who does, to transmit citizenship at birth.3U.S. Department of State. Assisted Reproductive Technology (ART) and Surrogacy Abroad
Expect the State Department to request evidence of the child’s conception and birth, genetic or gestational connections, the parents’ identity and citizenship, physical presence in the United States before the birth, and legal parent status under local law. If neither intended parent has a genetic or gestational connection to the child, the child may not qualify for U.S. citizenship at birth, which can leave the parents unable to bring the child home.3U.S. Department of State. Assisted Reproductive Technology (ART) and Surrogacy Abroad
Anyone pursuing international surrogacy should consult legal counsel in both the United States and the country where the surrogacy will take place before the pregnancy begins. Citizenship rules in the surrogate’s country, immigration law, and the intended parents’ own country’s recognition of surrogacy all interact in ways that need specialized planning. Sorting these out after the child is born is far harder and more expensive than handling them in advance.