The Surrogacy Legal Process [From Start to Finish]

A Guide for Intended Parents

Starting a family through surrogacy is an exciting and emotional experience, but the legal process can feel intimidating. You might be wondering what happens next, especially if you live in a state with complex surrogacy laws.

It’s normal to feel unsure at this stage. In this guide, we'll help you understand the surrogacy legal process — from hiring a lawyer to securing a pre-birth order. We want to help you feel confident enough to move forward with your family-building journey.

Do you have specific questions about your situation? Fill out our online form, and one of our surrogacy specialists will reach out with personalized guidance.

What Is the Surrogacy Legal Process? [5 Steps]

Whether you're already working with an agency or exploring this process on your own to start, having a clear legal roadmap can make all the difference.

Step 1: Contact Your Attorney

The first step is to find a qualified surrogacy attorney. An attorney will help you understand your state’s unique surrogacy laws, relevant case precedents and how parentage is established.

American Surrogacy has a network of attorneys we partner with across the U.S. We can help connect you with reputable legal professionals in surrogacy-friendly states.

Step 2: Draft a Surrogacy Contract

Once you're matched with a surrogate, you can create your surrogacy contract. This legal document is where everything gets laid out clearly: expectations, rights, protections and agreements for the journey ahead.

The people involved in this stage include:

You (and your partner, if applicable)
Your surrogate (and her partner, if applicable)
Independent legal counsel for both of you

The surrogate's partner may be asked to agree to certain terms, like participating in screenings and confirming they won’t seek parental rights.

Step 3: Negotiate (If Needed)

After the first draft, both parties review the contract and can propose changes. These negotiations are where you ensure your priorities are addressed, from financial terms to communication expectations.

Some contracts are finalized quickly, while others may take a few rounds. That’s OK. A well-written contract builds a strong foundation for your surrogacy journey.

Step 4: Sign a Contract

Once you and your surrogate agree on the terms, you’ll both sign the final contract. Depending on your state, this may need to be notarized or signed in a specific location.

Finalizing this agreement isn’t just a legal formality — no fertility procedures can begin until the contract is signed. After this step, your agency or clinic can start coordinating the medical phase of your journey.

Step 5: Complete a Pre-Birth Order (If Possible)

If available in your state, your attorney will file for a pre-birth order around four to seven months into the pregnancy. This document confirms that you’re the legal parent and allows you to take your baby home from the hospital.

To obtain a pre-birth order, you may need to submit:

A physician affidavit confirming embryo transfer
Social and psychological evaluations completed during the surrogacy process
Sworn statements from the surrogate and her family

Not every state permits pre-birth orders. But if yours does, this legal step makes parenthood much simpler.

How Long Does the Surrogacy Legal Process Take?

The legal stage of your journey — particularly the contract phase — typically takes one to two months. When you work with American Surrogacy, we coordinate legal services so you can focus on what matters most: becoming a parent.

Why Legal Contracts Are Essential in Surrogacy

The surrogacy contract is more than paperwork — it’s your roadmap. This agreement outlines:

Financial responsibilities

Surrogate compensation

Medical decisions (like selective reduction or termination)

Communication plans

Insurance details

And more

The contract is legally enforceable in most states and helps protect both parties. Because the contract serves as the foundation of your family-building journey, it's important to ensure it fully reflects your expectations and values.

Pre-Birth vs. Post-Birth Orders Explained

Establishing parentage in surrogacy usually happens through a pre-birth or post-birth order.

A pre-birth order is a legal document issued before the baby is born. Married couples with a genetic link to the child are most commonly granted pre-birth orders, but some states also allow them for single parents, unmarried couples and non-genetic intended parents.

A post-birth order is issued after delivery. You may need one if your state doesn’t permit pre-birth orders or your circumstances don’t meet specific legal criteria.

The Role of Surrogacy Attorneys

Your surrogacy attorney plays a critical role throughout the process. They will:

Draft and negotiate your legal contract

Ensure compliance with state laws

File court documents like pre- or post-birth orders

Protect your parental rights every step of the way

Both you and your surrogate will have your own legal representation to avoid conflicts of interest and ensure fairness.

How Much Does a Surrogacy Lawyer Cost?

Surrogacy attorneys typically cost between $5,000 and $15,000. This amount usually includes legal services for you as the intended parent and separate representation for your surrogate

Costs may vary depending on your state and your attorney’s experience. Your agency can help you budget accordingly.

State-by-State Differences in Surrogacy Laws

Surrogacy laws in the U.S. vary widely. Some states — like California, Illinois and Nevada — are considered surrogacy-friendly states with well-defined legal paths. Others, like Louisiana and Arizona, have strict regulations or may even prohibit certain forms of surrogacy.

That’s why it’s so important to work with an agency and attorney that understands the legal aspects of surrogacy in your state. If local laws are unclear, they can help you find alternative solutions that protect your parentage.

To learn more about laws where you or your surrogate live, check out our guides to state surrogacy laws.

How Surrogacy Agencies Support the Legal Process

At American Surrogacy, we simplify the legal process of surrogacy from day one. We partner with experienced attorneys, oversee the contract stage and help coordinate any required court filings. Our goal is to protect your path to parenthood so you can focus on building your family.

You don’t have to figure this out on your own. Fill out our form today to get connected with a surrogacy specialist and take the next step.