When the Agreement Unravels: Legal Protections for Surrogates and Intended Parents in Disputed Arrangements

Few legal arrangements carry as much emotional complexity as surrogacy. The process begins with shared hope — a surrogate willing to carry a child for a family who cannot do so on their own, and intended parents placing extraordinary trust in another person's body and commitment. When that arrangement fractures, however, the legal fallout can be as complicated as it is painful.

Surrogacy disputes are not hypothetical edge cases. They occur with enough regularity that family law attorneys across the country are increasingly called upon to untangle competing rights, ambiguous contracts, and the deeply human consequences of plans that did not unfold as expected. Whether you are a surrogate or an intended parent, understanding the legal landscape before you sign — and knowing your options if things go wrong — may be the most important step you take.

The Patchwork of State Surrogacy Law

One of the most significant challenges in surrogacy law is the absence of a uniform national standard. The United States has no federal statute governing surrogacy agreements. Instead, enforceability, parental rights determinations, and contractual obligations are governed entirely at the state level — and the variation is striking.

Some states, such as California and Nevada, have well-developed statutory frameworks that recognize gestational surrogacy contracts and provide clear pathways for pre-birth orders establishing parental rights. Others, including Michigan and Louisiana, prohibit compensated surrogacy arrangements outright or render such contracts unenforceable. Many states fall somewhere in between, relying on case law rather than codified statute, leaving parties in a legally ambiguous position.

This patchwork creates real risk. A contract that appears airtight may carry little legal weight in the state where the birth occurs, or where one of the parties resides. For families navigating this process without experienced legal counsel, the gaps can be catastrophic.

What Happens When Intended Parents Walk Away

Perhaps the most distressing scenario a surrogate can face is the withdrawal of the intended parents — particularly after conception or well into the pregnancy. The reasons vary: a relationship breakdown between the intended parents, a change in financial circumstances, a prenatal diagnosis, or simply a change of heart.

In states with enforceable surrogacy contracts, the intended parents' obligations — including financial support, medical coverage, and the assumption of parental rights upon birth — may be legally compelled. However, the practical reality of enforcing those obligations against unwilling parties is far more complicated. Courts must balance the terms of the contract against the best interests of the child who will ultimately be born.

If intended parents abandon the arrangement, a surrogate may find herself holding a child she did not intend to parent and facing medical bills she did not expect to carry. A well-drafted surrogacy agreement should include provisions addressing this precise scenario: defined financial obligations that survive the intended parents' withdrawal, escrow arrangements for medical and compensation funds, and clarity around what parental rights — if any — the surrogate retains or assumes in such circumstances.

Without those provisions, a surrogate's remedies may be limited to breach of contract claims, which are costly to litigate and uncertain in outcome.

When the Surrogate Changes Course

The inverse situation — a surrogate who wishes to retain the child she has carried — is rarer in gestational surrogacy arrangements, where the surrogate has no genetic connection to the child, but it is not unheard of. In traditional surrogacy, where the surrogate's own egg is used, the legal and emotional stakes are considerably higher.

Courts in most jurisdictions are reluctant to terminate the parental rights of a birth mother without compelling cause, even when a contract exists. The landmark 1988 Baby M case in New Jersey — in which a traditional surrogate sought to keep the child she had agreed to relinquish — remains a foundational reference point in American surrogacy law. The New Jersey Supreme Court ultimately voided the surrogacy contract but awarded custody to the intended father based on the child's best interests.

For intended parents, this underscores why gestational surrogacy — using a donor egg or the intended mother's egg — is now the far more common and legally preferred approach. It also reinforces the importance of securing a pre-birth parentage order wherever state law permits, establishing legal parental rights before the child is born rather than relying solely on contract language.

The Role of the Surrogacy Agreement Itself

A comprehensive, properly drafted surrogacy agreement is the single most important protective instrument available to both parties. It should address, at minimum:

• Compensation structure and payment schedule, including what happens if the pregnancy results in a miscarriage, multiples, or a premature birth
• Medical decision-making authority, including the surrogate's autonomy over her own body and health decisions during the pregnancy
• Selective reduction and termination clauses, which are among the most contested provisions and must reflect the genuine, informed agreement of all parties
• Insurance and liability coverage, including who bears responsibility for medical costs not covered by existing insurance
• Dispute resolution mechanisms, such as mediation requirements before litigation
• Contingency provisions for scenarios involving the death or incapacitation of the intended parents, dissolution of their relationship, or the birth of a child with significant medical needs

Both the surrogate and the intended parents should retain independent legal counsel before executing any agreement. This is not merely a formality — many states require it as a condition for the contract to be enforceable at all. An attorney who represents both parties simultaneously creates an inherent conflict of interest that can invalidate the entire arrangement.

Parental Rights Disputes After Birth

Even with a signed agreement and a pre-birth order in place, disputes can emerge after a child is born. Questions may arise about whether the intended parents are fulfilling their obligations, whether the surrogate is being compensated as agreed, or whether the legal parentage order obtained in one state will be recognized in another — a concern particularly relevant for families who relocate or who live in different states than their surrogate.

Full faith and credit principles under the U.S. Constitution generally require states to recognize valid court orders from other states, but the application of this doctrine to parentage orders is not uniformly settled. Families who operate across state lines should work with counsel familiar with both jurisdictions.

Protecting Yourself Before You Begin

The time to address legal risk in a surrogacy arrangement is before the embryo transfer — not after complications arise. Both surrogates and intended parents benefit from a clear-eyed review of their state's laws, a carefully negotiated contract, and independent legal representation throughout the process.

At Sarah Kin Law, we understand that surrogacy is not merely a legal transaction. It is a deeply personal undertaking built on trust, hope, and vulnerability. When that trust is tested, having a knowledgeable family law advocate in your corner can mean the difference between a painful chapter and an irreversible loss.

If you are considering a surrogacy arrangement, or if you are already in one that has taken an unexpected turn, we encourage you to seek counsel before circumstances force your hand. The law in this area is evolving, and the stakes — for every person involved, including the child at the center of it all — could not be higher.