Surrogates

Are Surrogacy Contracts Enforceable?

A gestational carrier agreement (GCA) is a legally binding contract that defines the rights and obligations of both the surrogate and the intended parents before any medical procedures begin. By having this agreement in place, you protect your physical health, your family’s financial security, and your legal standing throughout the entire process.

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This guide explains how state laws impact the enforceability of your contract, what happens if a party fails to meet their obligations, and why having your own attorney is the best way to stay protected.

Are Surrogacy Contracts Enforceable?

The question of whether surrogacy contracts can be enforced depends almost entirely on the state where the surrogacy occurs and the child is born. Since there is no federal law for surrogacy in the U.S., each state sets its own rules.

In “surrogacy-friendly” states like California, Colorado or Michigan, there are specific laws that say these contracts are legal and must be followed. In these states, a judge will uphold the terms of your GCA as long as it was created correctly.

In states without specific surrogacy statutes, the court relies on previous legal cases (case law) to make decisions. While most professional contracts are still respected in these areas, the lack of a clear law can make the process feel less certain.

This is why it is so important to work with an agency and a lawyer who know the specific legal environment of the state where your journey is taking place.

They will make sure your contract follows local requirements so it remains legally sound from start to finish.

What makes a surrogacy contract unenforceable?

Even in states with great laws, a contract can be thrown out if it includes unenforceable contract terms. A court will not uphold a clause that violates a person’s basic rights or state public policy.

For example, a contract cannot legally force you to have an abortion or undergo a specific medical procedure against your will. Your bodily autonomy is protected by law, and any term that tries to sign away those basic rights is usually considered void.

Other common reasons a contract might fail include:

Missing Signatures or Notarization: If the document isn’t signed and witnessed exactly how the state requires, it isn’t valid.
Shared Legal Counsel: If you and the intended parents used the same lawyer, the contract is likely unenforceable. You must have your own independent attorney.
Vague Financial Language: If the contract doesn’t clearly state how much you are being paid or who pays for medical bills, a judge may rule that the agreement is too unclear to enforce.

Does a Surrogacy Contract Protect Me as a Surrogate?

Some women worry that a contract doesn’t protect them and only looks out for the intended parents. However, the GCA is actually your primary source of protection. It turns the promises made during your match into legal requirements. Without a signed contract, you would have no legal way to make sure your medical bills are covered or that your monthly allowance is paid on time.

A professional contract protects you by:

It lists exactly when you get paid and what happens if there are complications, like a C-section or carrying twins.

The contract states that the intended parents are responsible for every pregnancy-related bill, so you never pay out of pocket.

It establishes that your life and health always come first in a medical emergency.

It requires the intended parents to take full legal and financial responsibility for the baby the moment they are born.

Working with an experienced lawyer ensures these protections are written clearly into your agreement.

What Happens If a Surrogacy Contract Is Breached?

A breach of contract occurs when one party fails to follow through with their commitments and specific legal obligations as outlined in the surrogacy agreement.

If you are asking what happens if contract breached, the answer could be found in a section with a title similar to “Breach of Gestational Agreement.”

This part of the agreement explains the breach of surrogacy contract consequences and the steps to resolve those breaches so everyone knows the stakes before the journey begins.

If a breach happens, the most common result is a financial penalty. For example, if the intended parents stop paying your allowance, they may have to pay interest or legal fees.

If a surrogate intentionally violates a major rule—like missing required medical tests—the intended parents might not have to pay certain non-medical expenses anymore.

While a contract breach lawsuit is very rare, having contract violation penalties in writing is important. It creates clear boundaries and makes sure everyone stays committed to the plan you all agreed on at the start.

Can I Back Out After Signing a Surrogacy Contract?

The rules for backing out after contract signing change depending on where you are in the medical process.

Before an embryo is transferred into your uterus, most contracts have a “pre-transfer” window where you can change your mind. If you decide surrogacy isn’t right for you during this time, you can usually stop the process by giving written notice, though you might have to pay back certain costs the intended parents already covered for your travel or screening.

Everything changes once the embryo transfer is complete.

If you become pregnant, you are legally committed to the terms of the GCA. You cannot change your mind about giving the baby to the intended parents after the birth.

Because the parents have a legal claim to the child and have spent a lot of time and money on the process, you are obligated to finish the journey and follow the parentage laws in your state.

This is why you should be 100% sure about your decision before the medical stage begins. If you have any doubts, talk to your agency coordinator or your lawyer immediately.

How Surrogacy Contract Disputes Are Typically Resolved: Mediation vs. Litigation

If you and the intended parents have a disagreement that you can’t solve on your own, your contract will have a plan for contract disputes resolution.

To keep things private and less expensive than a trial, most agreements include a mandatory mediation clause. This means both sides must meet with a neutral person (a mediator) who helps everyone find a middle ground.

Contract disputes mediation is better than going to court because:

It\'s Private
Court records are public, but mediation stays confidential.
It\'s Faster
You can usually schedule mediation in a few weeks, while a lawsuit can take years.
It\'s Cheaper
You won\'t have to pay for a full contract breach lawsuit, which can cost tens of thousands of dollars.

If mediation doesn’t work, some contracts have contract arbitration requirements. An arbitrator acts like a private judge and makes a final decision that everyone must follow

Going to an actual courtroom (litigation) is the very last resort and is usually only for serious issues like parentage disputes.

Do surrogacy contracts always include mediation or arbitration requirements?

Most professional agencies and lawyers include a contract conflict resolution plan as a standard part of their agreements. These clauses provide a safety net so that if a problem comes up, there is a fair and quiet way to fix it.

When you review your contract, make sure to check who pays for the mediator and where the meetings will happen.

The Role of Your Own Attorney in Reviewing Surrogacy Contracts

You should never sign a surrogacy contract without your own independent lawyer. The intended parents will have their own attorney, and you need someone whose only job is to protect you.

Your lawyer will look for “red flags” like unclear payment dates, unfair exit rules, or language that limits your medical freedom.

A surrogacy attorney will make sure you understand every page of the agreement before you sign. They can help you negotiate for things that matter to you, like your travel allowance or how often you have to talk to the parents.

Having your own counsel is the only way to make sure the contract is fair and that your rights are fully protected.

Ready to Talk to an Agency About What Should Be in Your Contract?

Understanding surrogacy contracts are enforceable is one of the most important parts of getting ready for your journey. A strong, clear contract isn’t just a legal requirement—it’s the foundation of the trust between you and the intended parents.

When the rules are clear from the beginning, you can focus on your pregnancy and the amazing gift you are giving, knowing that you and your family are legally and financially safe.

Starting a surrogacy journey is a big decision, and you deserve to have expert support every step of the way. Our team is here to help you find the right legal resources and guide you through the screening process.

Are you ready to start a surrogacy journey built on security and professional support? Contact us today to learn more about our process and start your application.

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