Surrogacy Contracts in California: What’s Included and Why it Matters

Your surrogacy contract is not just a private agreement; it is a document that must meet specific legal standards to be valid in court.

If your contract does not adhere to the exact statutes—such as being signed before the start of injectable medications—it may be deemed invalid. A comprehensive Gestational Carrier Agreement ensures that your rights are secured and that the intended parents are established as the legal parents.

If you want to verify your process is legally compliant, contact a surrogacy specialist to learn more about our agency protocols.

Below, we break down exactly what goes into a California surrogacy contract, the specific enforceability statutes you need to know, and how your rights are protected.

What Should Be Included in a Surrogacy Contract?

Your surrogacy contract guides the interaction between you and the intended parents. In California, this document serves as the legal mechanism that allows the courts to issue pre-birth orders.

This document must be drafted, negotiated, notarized, and signed before you begin any medical procedures or injectable medications for the embryo transfer. The contract generally covers several key areas:

• Intent and Parentage: This section explicitly states that you intend to carry the child for the intended parents and that you do not intend to be the legal parent. It confirms that the intended parents will accept full legal and physical custody immediately upon birth.
• Financial Terms: Your contract provides a detailed breakdown of compensation. This includes your base pay, monthly expense allowances, and specific reimbursements for maternity needs. It also establishes escrow account requirements to ensure money is available when needed.
• Medical Expectations: This chapter outlines the medical protocols you agree to follow, including IVF medications and prenatal care schedules. It establishes how medical decisions will be made and confirms that you have provided informed consent.
• Liability and Risk: The agreement clarifies that you are not financially liable for the costs of the pregnancy or any medical complications. It shifts the financial risk of medical bills entirely to the intended parents.
• Conduct and Lifestyle: To support a healthy pregnancy, the contract sets boundaries regarding travel, diet, and high-risk activities.

Are Surrogacy Contracts Enforceable in California?

Yes. California is one of the few states with explicit statutes that make gestational surrogacy contracts valid and enforceable. Family Code § 7962 outlines the specific criteria that must be met for a contract to be legally binding.

For your contract to be valid under California law, three specific criteria must be met:

1. Independent Counsel: You and the intended parents must be represented by separate, independent legal counsel.
2. Notarization: The agreement must be notarized.
3. Timing: The agreement must be executed before the administration of medication used in assisted reproduction (specifically injectable medications for the transfer cycle).

If these steps are followed, the courts will uphold the contract, allowing for a seamless legal process where the intended parents are recognized as the legal parents before the child is born.

What Happens If a Surrogacy Contract Is Breached?

Breach of contract provisions ensure everyone fulfills their promises. A breach occurs when either you or the intended parents fail to meet a significant obligation listed in the signed agreement.

Examples of breaches could include:

• Surrogate: Engaging in high-risk behaviors forbidden by the contract, such as smoking or drug use, or failing to take prescribed IVF medications which causes a cycle cancellation.
• Intended Parents: Failing to fund the escrow account on time or refusing to attend the birth or take custody of the child.

If a breach occurs, the contract will detail specific remedies. Financial consequences are the most common outcome. For example, if a surrogate violates a safety protocol, she may lose specific payments or be required to reimburse the intended parents for lost cycle costs.

If the intended parents breach the agreement by failing to pay, you would have the right to halt medical procedures until the financial issue is corrected.

Most well-drafted contracts include a dispute resolution clause. This requires the parties to engage in mediation or psychological counseling to resolve disagreements before pursuing legal action.

Understanding Surrogate Compensation in California

California does not place a legal cap on surrogate compensation, allowing you and the intended parents to agree on a fair amount. Your contract will explicitly state the total compensation package and the timeline for every payment, providing you with financial predictability.

Your payments are generally divided into three distinct categories:

• Base Compensation: This is your primary fee for the service of surrogacy. It is typically paid in monthly installments starting after the confirmation of a fetal heartbeat.
• Allowances and Start Fees: You will receive payments to cover the incidental costs of pregnancy. This includes a medication start fee when you begin injections and a transfer fee for the embryo transfer procedure. You will also receive a monthly allowance for minor expenses like vitamins, mileage, and postage.
• Event-Based Payments: The contract will outline one-time payments for specific milestones, such as a maternity clothing allowance released in the second trimester, or fees for invasive procedures like amniocentesis if they become necessary.

To ensure these payments are secure, your contract will mandate that the intended parents deposit the funds into a licensed and bonded escrow account prior to the start of medical treatment. This is a standard requirement in California to ensure your compensation is never dependent on the intended parents’ personal bank account.

Medical Rights in a Surrogacy Contract

Although you are carrying a child for another family, you never lose your constitutional rights to bodily autonomy. Your contract creates a framework for collaboration, ensuring that you and the intended parents share the same medical philosophy while respecting your rights as a patient.

Key medical provisions typically include:

• Provider Selection: The agreement will confirm your right to choose your obstetrical care provider.
• Treatment Compliance: You agree to follow the medical advice and protocols prescribed by the fertility clinic and your OB-GYN.
• Information Sharing: You will sign HIPAA releases that allow the intended parents to speak with your medical providers and view medical records. This transparency builds trust.

Pregnancy Termination & Reduction Clauses

Termination and selective reduction are sensitive topics. California law is highly protective of a woman’s right to reproductive privacy. Your contract cannot override your constitutional rights.

The contract will outline the specific circumstances under which the intended parents would request a termination, such as a severe genetic defect.

• No Specific Performance: While the contract can specify financial consequences for refusing a termination request (such as a loss of future payments), the court cannot legally compel you to undergo a termination procedure or a selective reduction against your will.
• Bodily Autonomy: Conversely, the intended parents cannot force you to carry a pregnancy to term if your health is in immediate danger.

Because this area of law is complex and highly personal, independent legal counsel is essential. We advocate for matching you with intended parents who share your views on termination before legal drafting begins to avoid conflicts.

Lifestyle and Travel Restrictions

To protect the investment of the intended parents and the health of the baby, your contract will place reasonable limitations on your lifestyle.

Common lifestyle clauses include:

• Dietary and Substance Limitations: You will agree to avoid high-risk foods and completely abstain from alcohol, nicotine, and illegal drugs. The contract may also include a provision for random drug testing.
• Activity Levels: The contract may restrict certain high-impact activities or contact sports.
• Travel Restrictions: You may be restricted from traveling to areas with Zika risk or outside the state after 24-28 weeks gestation. This ensures you are close to your delivery hospital and the intended parents when labor begins.

What the Contract Says About Labor and Delivery

The birth plan is a central part of your contract. This section serves as a script for the hospital experience, reducing stress for you and the intended parents.

• Delivery Logistics: Specifies the hospital where you intend to deliver.
• Delivery Room Presence: States that the intended parents are permitted to be in the delivery room, provided hospital policy allows it.
• Postpartum Decisions: Confirms that the intended parents have the authority to make all medical decisions for the baby immediately after birth.
• Pumping Agreement: If you agree to provide breast milk, the contract sets a weekly compensation rate for this service and requires the intended parents to cover supplies and shipping.

Insurance Requirements in a California Surrogacy Contract

Your financial security is a top priority. Your contract will require a thorough review of your health insurance policy to determine if it can be used for a surrogacy pregnancy.

If your policy excludes surrogacy, the intended parents are contractually obligated to purchase a separate surrogate-friendly insurance policy for you.

The contract will also require the intended parents to purchase a life insurance policy for you. This policy typically carries a benefit of $250,000 or more to protect your family’s financial future.

Agency vs. Independent Contracts

Choosing between an agency-assisted process and an independent surrogacy process significantly impacts your contract experience.

In an independent process, you are responsible for ensuring your contract meets the strict compliance standards of California Family Code § 7962. If you miss a step—like failing to notarize the document or signing it after starting medication—the contract could be invalid, jeopardizing the pre-birth order.

Working with an agency provides comprehensive support:

• Screening: We protect you by pre-screening intended parents to ensure they are financially capable.
• Legal Coordination: We manage the legal clearance process, ensuring you have a qualified California attorney representing your interests.
• Conflict Resolution: If a disagreement arises, your agency specialist acts as a mediator to resolve the issue professionally.

Start Your Surrogacy Process

Your surrogacy contract is the foundation of a successful process, providing you with the clarity and security you need to focus on the gift you are creating. It protects your finances, respects your body, and ensures that you and the intended parents are united in your goals.

We are here to handle the details so you can focus on a healthy pregnancy. If you are ready to begin a process where your rights are protected every step of the way, contact us online to speak with a specialist today.