The Contracting Phase


Once you have confirmed the match with your surrogate, you will move into the contracting phase of your journey. During this time, you will be working with lawyers who are very well versed in fertility and reproductive law in the United States to draft and execute your surrogacy agreement.

Many states require a legal contract between the surrogate and the intended parents. This contract, commonly known as the surrogacy agreement, will be catered to suit the laws of the states/countries that are included as well as any specific requests you and your surrogate have agreed upon.

The main purpose of the contract is to specify and clarify the outcomes of any issues that may arise during the course of the pregnancy. Examples include:

  • What will happen to the child should something happen to the intended parents before the baby is born
  • What would happen if the baby were diagnosed with a genetic illness while in utero.
  • How many fetuses is the surrogate willing to carry

The contract is designed to protect all parties and prevent potential disputes.

Most IVF clinics will stipulate that a surrogacy agreement be in place before any medical procedures begin.

Later on in your journey, you will need to manage more legal paperwork to establish parental rights. Final parental establishment for the intended parents is acquired via a court order declaring the parental rights and obligations of the intended parents. At this point, you will be identified as the sole legal parents. The court order will also include directions for the department of Vital Records to issue a birth certificate for the child, upon which will be placed the names of the intended parents. This is usually done before the end of the third trimester, though this may vary from state to state.

Dr. Kim Bergman

Kim Bergman, PhD, a licensed psychologist of 26 years, has specialized in the area of gay and lesbian parenting, parenting by choice and third party assisted reproduction for over two decades. Dr. Bergman has created a comprehensive psychological screening, support and monitoring process for Intended Parents, Surrogates and Donors. She is the co-owner of Fertility Counseling Services and Growing Generations and is a member of the American Society for Reproductive Medicine, the American Psychological Association, the Los Angeles County Psychological Association, the Lesbian and Gay Psychotherapy Association, and the Gay and Lesbian Medical Association. She is on the national Emeritus board of the Family Equality Council. Dr. Bergman writes, teaches and speaks extensively on parenting by choice. Along with co-authors, she published “Gay Men Who Become Fathers via Surrogacy: The Transition to Parenthood” (Journal of GLBT Family Studies, April 2010). Dr. Bergman’s is the author of the upcoming book, Your Future Family: The Essential Guide to Assisted Reproduction (Conari Press 2019). Dr. Bergman created her own family using third party assisted reproduction and she lives with her wife of 35 years. Her two daughters are in college.