First things first, I am not a lawyer. If you are considering surrogacy and want to understand the legal issues associated with the process, I recommend setting up a meeting with a local attorney who specializes in surrogacy. My thoughts and observations below are only my own, and came together through two surrogacy experiences across the years 2014-2016, and are from my perspective as an intended mother.

Legal is a very important part of the surrogacy process, and it bleeds into nearly every step of the journey. Meeting with a local attorney who is an expert in the surrogacy arena was the very first step we took to kick off our journey. She sat down with us and informed us of the basic legal picture, commented on a few agencies that she frequently worked with, outlined the next steps, and sent us home with a packet of more information.

I’ll be honest — there are so many details to consider and emotional and physical hurdles to pass with surrogacy that it feels like you are drinking from a fire hose in the beginning. Having an expert helping us build our understanding and point out areas for us to turn to for additional information was tremendously useful. I’m also happy that we met with our attorney in the beginning because she was able to direct us to reputable partners, and I think this is at least part of the reason we didn’t get scammed through any part of the process (another obvious part of that is simple luck).

Weeks later, once we decided for certain to proceed down the surrogacy path, our attorney helped us negotiate our contract with our chosen surrogacy agency. Most helpful was her perspective on what was typical or normal in such a contract since we had absolutely no idea. She also gave us a heads up on some things to consider, such as the risk in using an escrow account through the surrogacy agency. It was also her idea to negotiate a revised payment structure with our agency whereby we did not pay the full amount until we had been successfully matched with a surrogate and she passed medical clearance.

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(While I’m on the agency and matching topic, I should mention that some surrogacy lawyers even go so far as to act as a pseudo-agency and will match intended parents with potential surrogates. It is up to the parties involved to decide if they are comfortable with this structure, and I’ve heard mixed reviews on such arrangements.)

The period of time between officially signing with our agency and next needing legal advice was several months, with our attorney stepping in after we had been matched with a potential surrogate, developed an initial relationship with her, and she had successfully received medical and psychological clearance from our clinic.

After receiving the green light in those areas, everything came to a screeching halt until the legal contract was drafted and signed by all parties. The reason for this is that a clinic will not provide any treatment to prepare a surrogate for an embryo transfer or pregnancy until they receive proof from an attorney that the surrogacy contract has been finalized by both parties.

In my experience, clinics want nothing to do with the drafting of the contract and do not want to see the full contract. Instead, they require a letter from an attorney with a very basic outline of the agreement. By way of example, the letter that our attorney sent to our clinic included the names of all parties involved, confirmation that the legal agreement had been completed and signed, the number of embryos that we had agreed to transfer, the genetic material of the embryos that we had agreed on (my egg as intended mother, and my husband’s sperm as intended father), and when the contract agreement was set to expire.

Also part of the legal package was a medical affidavit provided by my doctor that I had a “medical need” for a surrogacy arrangement. In the state of Illinois, you cannot pursue surrogacy unless you have been deemed by a medical professional as having a reason to do so. Stated another way, you can’t decide to pursue surrogacy because you simply don’t want to carry a pregnancy yourself (again, this is an Illinois rule as far as I’m aware and does not apply to all states).

Taking a step back to the full contract, it took our attorney approximately six weeks to put together a first draft. Mr. Starfish and I then spent one week reviewing the contract, asking our attorney questions, and suggesting revisions. Our contract was 44 pages in length, and Mr. Starfish and I went over every paragraph very carefully. When we were satisfied with the contract, our attorney sent it over to our surrogate’s attorney for review. The surrogate and her husband then spent about one week reviewing the contract and making their own revisions. Luckily for us (and demonstrating that we were a good match), we had very little disagreement with our surrogate and her husband about the contents of the contract and we quickly accepted their revisions. We all officially signed and submitted our signatures only four days after the contract was finalized.

You may be wondering what is in a surrogacy contract. The answer is a LOT! If there is any interest, I can delve into further detail about what is contained in such a contract in a future post. But to provide a brief outline, our contract included the names of all of the doctors and clinics and hospitals that we intended to use, representations as to mental and physical health, the IVF transfer process, and basic restrictions for the surrogate throughout the pregnancy (alcohol, nicotine, etc). The most difficult part of the contract is thinking through some terrible possibilities of the pregnancy, including what to do if the surrogate’s health is at risk or the baby develops an extreme health condition such that it will not survive to delivery. In addition, the payment schedule is detailed along with any and all potential expenses that you can imagine.

Once the pregnancy has been established, we would have been able to mostly forget about the legal aspect of the surrogacy arrangement if both parties were based in Illinois (I say mostly because there are some final steps involved including a pre-birth order to ensure that the baby’s birth certificate reflects the intended parents’ names). However, our surrogate lived in a different state than us (Utah) and this complicated things in our situation. We had to involve a Utah-based attorney to assist us with navigating the legal issues and courts in that state. I’ll be honest with you that I became so overwhelmed and frustrated with this aspect of the surrogacy journey that I’ve now blocked most of that part out of my mind. Looking back at my records now, I’m astounded that we were still dealing with legal issues well into the first trimester of the pregnancy! I was lucky in that Mr. Starfish took the lead on these hairy and complicated issues and allowed me to focus on the more fun aspects of the pregnancy and our relationship with our surrogate.

My opinion is that if you’re doing surrogacy correctly, legal is naturally going to be a headache at some point. I remember feeling bitter that I had to define and consider nearly every aspect of the pregnancy in ways that “normally” expecting couples don’t have to do. The expense also was tough to swallow, and I cringe to think of the dollars that we spent on the five attorneys that we used throughout our two surrogacy journeys.

But it’s also so important to make sure that legal is done well in order to protect all of the parties in a situation that is overwhelming in nearly every aspect. It helps smooth a complicated process and eliminates potential speed bumps so that intended parents and surrogates can avoid disagreements throughout the pregnancy and instead focus on welcoming a special new life into the world.


Audrey was carried by our surrogate and delivered in June 2016. She was worth ALL the legal frustration!