If a surrogate has a miscarriage, the surrogacy contract signed before the pregnancy controls almost everything that follows: what the surrogate is paid, who covers the medical bills, who decides on treatment, and whether the parties attempt another transfer. The emotional weight falls on everyone, but the legal and financial framework is already in place by the time the loss occurs.
The Contract Is Already Doing the Work
A well-drafted surrogacy agreement contains specific miscarriage provisions, separate from clauses about elective termination, that activate when a loss is confirmed. Those provisions address compensation, expense reimbursement, insurance obligations, medical decision-making, and the process for a subsequent transfer attempt.
One contractual concept drives much of what happens: “clinical pregnancy,” typically defined as ultrasound confirmation of a fetal heartbeat. Many financial and procedural obligations only turn on after a clinical pregnancy is established. A failed embryo transfer or a very early chemical pregnancy usually triggers a simpler set of terms than a loss at eight or twelve weeks.
The Uniform Parentage Act, the model law many states have adopted in some form, requires surrogacy agreements to disclose how the intended parents will cover surrogacy-related expenses and the child’s medical costs, and to include each party’s right to terminate.1Uniform Law Commission. Uniform Parentage Act 2017 – Final Act If a transfer doesn’t result in a pregnancy, either party can terminate before another attempt, but the intended parents remain responsible for every expense the surrogate has incurred up to that point.
What the Surrogate Is Paid After a Loss
Base compensation payments usually begin only after a clinical pregnancy is confirmed, so a very early loss before that milestone may not activate base compensation at all.
Once compensation has started, agreements generally take one of two approaches to a miscarriage. Some provide prorated compensation based on how far along the pregnancy was. Others include a flat miscarriage fee that acknowledges the surrogate’s physical and emotional commitment. Either way, the surrogate does not walk away empty-handed for a loss that was outside her control.
Smaller ongoing payments are handled separately. Monthly allowances for maternity clothing, housekeeping, or other pregnancy-related needs typically stop once the pregnancy ends. Lost wages, childcare during appointments, and travel reimbursements for medical visits are covered through the date of the loss. The intended parents bear these costs as a contractual obligation, not as a courtesy.
Who Pays the Medical Bills
The agreement assigns all miscarriage-related medical bills to the intended parents. Hospital visits, emergency procedures, follow-up appointments, and prescribed medications fall under their responsibility. The obligation does not end the day the loss is confirmed. Well-structured agreements cover postnatal medical expenses for a defined period, often up to 12 months after the pregnancy ends, to account for follow-up care the surrogate may need.2University of Rochester Medical Center. Gestational Surrogates Bill of Rights
Insurance is where things get complicated. Standard health insurance plans often exclude pregnancy-related expenses when the member is acting as a surrogate, and some self-funded employer plans have explicitly carved out surrogacy-related coverage. The surrogate’s own health plan may deny claims tied to the pregnancy and any resulting miscarriage, leaving a potentially large bill for the intended parents to cover directly.
That gap is why most arrangements involve supplemental insurance. Intended parents typically purchase a policy covering complications from the fertility treatment and transfer process. Once a pregnancy is confirmed, the surrogate’s care transitions to coverage under a maternity plan, but if that plan has a surrogacy exclusion, the intended parents need a backup. Contracts also commonly require the intended parents to buy a term life insurance policy for the surrogate during the pregnancy, protecting her family in case of catastrophic complications.
Who Decides on Medical Care
Once a miscarriage is confirmed, the surrogate’s medical team determines the course of treatment. In many early miscarriages, the body completes the process on its own. When it doesn’t, a dilation and curettage procedure may be needed to remove remaining tissue and prevent infection. The surrogate’s physician makes that call based on gestational age, the completeness of the miscarriage, and the surrogate’s overall health.
The Uniform Parentage Act is clear that the surrogate makes all health and welfare decisions regarding herself and her pregnancy.1Uniform Law Commission. Uniform Parentage Act 2017 – Final Act The intended parents are kept informed and consulted as the contract requires, but final authority over medical decisions rests with the surrogate. That applies to decisions about treatment after a miscarriage just as it does during an ongoing pregnancy.
Recovery timelines vary. A first-trimester loss may require a few weeks of physical recovery. A later loss can mean a longer period before the surrogate is medically cleared for daily activities, let alone another embryo transfer.
Testing the Pregnancy Tissue
The medical team may recommend genetic testing of the fetal tissue to determine whether chromosomal abnormalities caused the loss. In the surrogacy context, those results directly influence decisions about future transfer attempts. If the loss stemmed from a chromosomal issue with that specific embryo, the remaining embryos may still be viable. If testing reveals a pattern, the intended parents and their fertility specialist can adjust their approach for future embryos. The agreement should specify who pays, and in practice the intended parents cover it as part of pregnancy-related medical expenses.
Trying Again, or Not
Most agreements specify a maximum number of embryo transfer attempts, commonly up to three, before either party can walk away without financial penalties. The cap is set before the journey begins so no one is negotiating “how many times do we try” while processing a loss.
Before any subsequent transfer, the surrogate needs medical clearance from her physician. The clearance process typically includes a physical exam, blood and urine testing, and a saline infusion sonohysterography to examine the uterine lining for scarring or other issues that could affect the next transfer. A first-trimester loss may allow a return to transfer readiness within a few months; a later loss takes longer.
When the surrogate is cleared and both parties agree to continue, the contract’s financial terms generally reset for the new cycle. Compensation, expense coverage, and allowances begin fresh as if it were a new pregnancy.
Either party can terminate the agreement before a subsequent transfer is attempted.1Uniform Law Commission. Uniform Parentage Act 2017 – Final Act The intended parents remain responsible for all expenses the surrogate incurred through the termination date, regardless of who initiates the decision to stop. The surrogate is not left covering costs for a journey she entered on someone else’s behalf.
Counseling and Support
Good surrogacy agreements include provisions for mental health support, typically covering counseling for the surrogate. The Uniform Parentage Act requires both surrogates and intended parents to complete a mental health consultation before the agreement is signed, which means both parties should already have a relationship with a counselor who understands the surrogacy context.1Uniform Law Commission. Uniform Parentage Act 2017 – Final Act That pre-existing relationship becomes especially valuable after a loss. Intended parents should seek their own support as well, though the contract is less likely to cover their counseling costs directly.
When the Loss Happens Later in the Pregnancy
Federal health agencies draw a sharp line at 20 weeks of gestation. A loss before 20 weeks is classified as a miscarriage. A loss at 20 weeks or later is a stillbirth.3Centers for Disease Control and Prevention. About Stillbirth The distinction is not just terminology; it triggers different legal requirements.
Most states require formal reporting of fetal deaths at 20 weeks or beyond, and many issue a fetal death certificate. A few states require reporting of all products of conception regardless of gestational age, and others use a weight threshold of 350 grams as an alternative trigger. In a surrogacy context, this raises practical questions about who is listed on the fetal death certificate and how parentage documentation is handled. Many agreements focus primarily on early miscarriage and treat later losses as an afterthought, which is a drafting gap worth catching before signing.
Stillbirths also tend to involve more intensive medical care, longer hospital stays, and a more complex recovery. The financial obligations for intended parents are correspondingly larger.
When the Contract May Not Be Enforceable
Everything above assumes the surrogacy contract is enforceable, and in most states it is. A small number of states declare surrogacy contracts void and unenforceable by statute, and at least one state restricts compensated surrogacy to the point where it is effectively prohibited. In those jurisdictions, the miscarriage provisions, financial protections, and termination rights may have no legal teeth if either party refuses to honor them.
Surrogacy still happens in those states, but the protections rest on good faith rather than enforceable terms. Confirm the state’s legal framework before signing, and work with a reproductive attorney licensed in that state. That step matters most where the legal environment is uncertain, and it is the single clearest way to protect both the surrogate and the intended parents if a pregnancy is lost.