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

Because the law does not automatically protect you in Arizona, your surrogacy contract guides your entire process. A comprehensive Gestational Carrier Agreement allows you to navigate this unique landscape with confidence.

If you want to verify your process is protected from day one, contact a surrogacy specialist to learn more about our agency protocols and how we safeguard your interests.

Below, we break down exactly what goes into an Arizona surrogacy contract, how the “unenforceable” rule actually works, and how your rights are protected in a statute-prohibitive state.

What Should Be Included in a Surrogacy Contract?

In many states, the surrogacy contract is the final word. In Arizona, because of the legal complexities, the contract serves a dual purpose: it guides the relationship between you and the intended parents, and it serves as proof of intent for the judge who will eventually grant the parentage order.

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

• Intent and Parentage: This is the most vital section for Arizona courts. It 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. This language is the foundation for the “Pre-Birth Order” (PBO).
• 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 Arizona?

This is the most common question for surrogates in Arizona. The honest answer is: Technically, no. Here is why.

Arizona Revised Statute § 25-218 states that “surrogate parentage contracts” are void and unenforceable and that the surrogate is the legal mother of the child.

If you only read the statute, surrogacy seems impossible, but this is not the case. Intended parents are able to match with surrogates from other states, to ensure they are protected by more favorable laws.

What Happens If a Surrogacy Contract Is Breached?

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 usually defaults to financial consequences. 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.

Understanding Surrogate Compensation in Arizona

Surrogate compensation is 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.

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. Learn more about surrogate lost wages and financial protections.

Medical Rights in a Surrogacy Contract

Although you are carrying a child for another family, you never lose your constitutional rights. 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 (OB doctor). This is vital if you live in rural Arizona and need to plan for delivery at a major hospital in Phoenix or Tucson.
• 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 is vital for building trust.

Pregnancy Termination & Reduction Clauses

Termination and selective reduction are sensitive topics in any surrogacy agreement. Arizona has seen shifting laws regarding abortion access. Your contract must reflect the current legal reality of the state.

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

• No Forced Procedures: The contract cannot legally compel you to undergo a termination procedure if you object.
• No Forced Term: Conversely, it 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: Given Arizona’s summer heat and geography, travel clauses are specific. 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 an Arizona Surrogacy Contract

Your financial security is a top priority. In Arizona, many standard health insurance policies contain exclusions for surrogacy pregnancies. Your contract will require a thorough review of your policy to determine if it can be used.

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. You can read more about how we handle complications and emergencies.

Agency vs. Independent Contracts

In an independent journey, you are often responsible for vetting the intended parents, finding your own attorney, and managing the escrow payments yourself. In Arizona, this is dangerous because if the contract is challenged, you do not have the institutional support of an agency to mediate or manage the funds.

Because of the complex surrogacy laws in Arizona, working with an agency is crucial towards the overall success of your journey.

Working with an agency provides comprehensive support:

• Matching: Agencies will help find an out-of-state match so everyone is better legally protected
• 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 Arizona 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 Journey

Your surrogacy contract is the foundation of a successful process, providing you with the clarity and security you need to focus on the incredible 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 journey where your rights are protected every step of the way, contact us online to speak with a specialist today.