Overseas Surrogacy Contract Review: 12 Clauses to Check Before Signing

1. Why must surrogacy contracts be reviewed “item by item” instead of just looking at the total price?

The ASRM Practice Committee document on gestational carrier arrangements clearly states that surrogacy arrangements involve medical, psychological, legal and ethical issues and that independent legal consultation, informed consent and a written agreement should be completed before signing. ACOG also cautions that gestational surrogacy affects both the surrogate mother, the intended parents, and the birth child, and that the legal status varies by jurisdiction.

This illustrates a core fact: a surrogacy contract is not an ordinary service contract. It connects assisted reproductive medicine, pregnancy care, paternity confirmation, birth registration, cross-border document recognition and financial security. If the contract only states "Guarantee of success", "Guarantee of return to the country" and "Full responsibility for the whole process", but does not clearly spell out the boundaries of responsibility, it will be difficult to hold the person accountable when subsequent failures, miscarriages, document delays or cost disputes occur.

2. 12 key terms that must be confirmed before signing a contract

1Contract subject and signing authority

First confirm who signed the contract.委托方、医疗机构、服务机构、代孕母亲、律师、公证人或文件代理方，各自身份不能混在一起。

The entrusting party should check the business license or registration documents, medical institution qualifications, identity of the authorized signatory, list of contract attachments, and whether there is any inconsistency between the "actual service party" and the "payee". If the contract only contains the name of the agency but does not specify the actual medical institution or the responsible party in the legal documents, subsequent disputes will increase significantly.

2Governing Law, Place of Signing and Dispute Resolution

Cross-border contracts must specify which local law applies, where they are signed, and where disputes are handled. You can’t just write “resolved through negotiation between the two parties.”

It should be noted that different countries, states, provinces or regions have different attitudes towards surrogacy contracts, confirmation of paternity and recognition of birth documents. HCCH’s paternity/surrogacy project has long been concerned with the issue of legal paternity confirmation and cross-border recognition in international surrogacy arrangements. Therefore, the client cannot directly apply the successful cases of a certain country to its own family identity, marital status and path back to the country.

3Medical Service Scope and Exclusions

The contract must specify what medical services include: ovulation induction, egg retrieval, sperm retrieval, embryo culture, blastocyst culture, PGT-A, cryopreservation, thawing transplantation, prenatal check-up, delivery, newborn care, etc. Which ones are included and which ones are charged separately.

CDC 对辅助生殖技术数据的统计也提醒我们，ART 结果需要用可核验数据表达，而不是只看营销口径。 If there are absolute statements such as "guaranteed success rate" or "first-time success" in the contract, the client should request that it be changed to specific and verifiable medical nodes and failure handling methods.

4Embryo ownership, storage and disposal rights

The ownership of the embryos should be clearly stated: who owns the embryos and who has the right to decide to continue to store, transfer, use, destroy or stop storage. If donor eggs, sperm or embryos are used, the source of gametes, informed consent, anonymity or non-anonymity rules, and whether relevant documents can be used legally at the destination must also be confirmed.

The remaining embryo provisions are particularly important. Many disputes do not occur before the child is born, but after the project is over: who will bear the cost of the remaining embryos, how long they will be kept, and how to deal with divorce or one party loses contact, all should be agreed in advance.

5Surrogate mother screening and replacement mechanism

ASRM recommends that gestational carriers receive medical evaluation, infectious disease testing, psychosocial evaluation, evaluation of uterine conditions, and legal counseling. The contract should spell out the screening program, exclusion criteria, how reports will be provided, and the replacement process if the surrogate mother is not suitable to continue with the program.

Clients should not just accept a general statement of “screened and qualified”. A more prudent approach would be to ask to see a de-identified or legally discloseable summary of the screening and confirm who is responsible for the authenticity of the screening.

6Pregnancy management, report delivery and abnormality notification

The pregnancy management terms should include the frequency of prenatal examinations, examination items, report language, report delivery time, abnormal notification time limit, whether to provide original hospital records, and whether the client can communicate with the medical team as necessary.

"Update once a month" does not equal adequate management. The contract should distinguish between different scenarios such as routine prenatal check-ups, emergencies, hospitalization, risk of premature birth, fetal abnormality prompts, etc., and specify who is responsible for organizing medical opinions and translation instructions.

7Payment nodes, refunds and fund security

Payment nodes should not be set only by date, but should be tied to actual delivery. Such as contract signing, notarization, medical initiation, embryo formation, transplantation, fetal heart rate confirmation, second trimester check-up, delivery, birth certificate and certified document delivery.

If the contract requires a one-time payment of a large proportion of the payment without clear rules for failure, cancellation, replacement, refund and force majeure, the client's financial risk will increase. For projects with higher amounts, it is recommended to use clear installments, recipients and voucher retention mechanisms.

8Failure, miscarriage, fetal arrest and re-transplantation arrangements

There are uncertainties about both assisted reproduction and pregnancy.合同应分别约定移植失败、未见胎心、早期流产、中晚期流产、胎停、宫外孕、早产和新生儿医疗异常的处理。

The key is not to promise that "it won't happen", but how to deal with it after it happens: whether to re-match, whether to re-transplant, which expenses will be recalculated, which expenses will not be refunded, how to judge medical liability, and what reports are needed as a basis.

9Multiple pregnancy, fetal reduction, prenatal diagnosis and medical decision-making

The ASRM document emphasizes that issues such as the number of embryos to be transferred, multiple gestations, fetal reduction, prenatal diagnosis, and pregnancy termination should be discussed in gestational carrier arrangements. Contracts can stipulate communication and decision-making procedures, but commercial terms cannot replace legal and medical ethical boundaries.

In practice, the client, surrogate mother, and doctor may have different risk tolerances. The contract should spell out in advance: who will organize the consultation when medical advice arises, who will obtain the report, who will bear the costs, and how all parties will respect local laws and the physical autonomy of the surrogate mother.

10Privacy, data protection and case authorization

Surrogacy projects will generate sensitive information such as passports, marriage certificates, medical reports, embryo records, pregnancy information, birth documents, and parent-child relationship materials. The contract should stipulate the data retention period, accessible personnel, cross-border transmission methods, deletion mechanism and leakage liability.

In particular, confirm whether the institution can use the case for publicity. The identity information, photos, medical information and document images of the entrusting family, surrogate mother or child should not be disclosed without written authorization.

11Birth certificate, paternity documents and return route

The contract should state who will be responsible after the birth for hospital birth records, birth certificates, paternity documents, notarization, Apostille or consular legalization, translations, travel document or passport application support, and when documents will be delivered.

This part must be confirmed one by one in conjunction with the entrusting family’s nationality, marital status, place of residence, whether they hold Hong Kong or other identities, the laws of the country where the child was born, and the requirements of the embassy or consulate at the destination. Any statement that "all families are handled the same" is not rigorous.

12Liability for breach of contract, evidence retention and exit mechanism

The contract should ultimately answer three questions: What happens if the agency doesn’t deliver on its promise? What if the medical or documentation process is delayed? What if the principal needs to pause or exit?

It is recommended that the evidence form be clearly written, including payment vouchers, medical reports, chat records, emails, signed documents, translations and document handover lists. Without the right to a chain of evidence, it is difficult to implement in cross-border disputes.

3. Be alert when seeing these statements before signing a contract.

4. List of documents that the client can request for verification

Requirements will vary between countries and projects, but a verification checklist should be established around at least the following documents before signing:

5. 8 questions you can directly ask the agency before signing a contract

6. Conclusion: A good contract is not about “well-written”, but about being able to put risks on paper

The risks of overseas surrogacy programs cannot be completely eliminated, but they can be identified, allocated and managed. A rigorous contract will acknowledge medical uncertainties, legal differences, and document complexities and write these issues into clear terms.

Before signing a contract, the client should not just ask "how much, how long, and what is the success rate", but should also ask: How does the contract protect me if it doesn't go well? If a dispute arises, where is the evidence? If a child is born, is the file link already planned?

This is the true value of contract review.