Gestational surrogacy has grown into a booming industry in the United States over the past two decades. Yet, statutory guidance and regulation have often lagged behind, struggling to keep pace with the rapid increase in surrogacy arrangements. For years, only a handful of states had comprehensive surrogacy laws, offering limited guidance on key issues such as contract requirements and the process of establishing parentage. These early laws focused primarily on determining legal parentage and rarely addressed matters of consent and bodily autonomy — issues essential to ensuring ethical surrogacy practices.
In recent years, legislatures have begun to catch up. Recognizing the popularity of commercial surrogacy, several states have passed laws that not only legalize the practice but also provide clear protections for surrogates. These statutes often affirm the surrogate’s right to make medical decisions affecting her health and body throughout the pregnancy.
Including contract provisions that allow the surrogate the final say on medical procedures has long been considered best practice. Still, surrogacy arrangements present a unique challenge: the patient (the surrogate) is agreeing to undergo medical procedures for the benefit of a third party (the intended parents), and those decisions can significantly impact the child the intended parents hope to raise. Intended parents must understand that a surrogate’s bodily autonomy cannot be contracted away — neither as a constitutional principle nor within the doctor–patient relationship that must remain intact.
Sensitive issues arise throughout surrogacy contracts, including provisions on vaccinations, prenatal testing, and pregnancy termination. While all parties have a vested interest in these decisions, it is ultimately the surrogate’s consent that must control. Courts in the United States will not compel a pregnant woman to undergo a termination simply because she agreed to do so in a contract, just as no physician would perform an embryo transfer without her current, informed consent.
For many intended parents, relinquishing control over such significant decisions can be difficult to grasp. This is why statutes affirming the surrogate’s authority over medical decision-making are so critical: they create clear, enforceable boundaries. Michigan — which until recently banned commercial surrogacy — now has one of the most comprehensive surrogacy statutes in the country. The law requires that any valid surrogacy agreement “must permit the surrogate to make all health and welfare decisions regarding the surrogate and the pregnancy, including, but not limited to, whether to consent to a cesarean section or multiple embryo transfer,” and explicitly declares contrary provisions unenforceable. Under such a framework, many provisions in a surrogacy agreement function more as statements of intent than binding promises.
It is also important to recognize that many medical decisions contemplated in a contract are made before the surrogate has been fully educated by her healthcare providers. She may initially agree to prenatal testing or other procedures requested by the intended parents, but when the time comes, her informed consent must still be obtained. Physicians have an independent duty to act in their patient’s best interests, which may result in decisions that conflict with the contract’s original terms.
Most state statutes also require that the parties be allowed to terminate the contract before an embryo transfer, without liability to the surrogate. This ensures that the decision to become pregnant is voluntary and uncoerced. Together with the informed consent process, this safeguard protects the surrogate’s autonomy and reinforces that participation in surrogacy must remain a choice at every stage.
For intended parents, this framework can feel counterintuitive: they are entering into a contract knowing that some of its most sensitive provisions — such as those concerning abortion or fetal reduction — may not ultimately be enforceable. This is precisely why attorneys must educate clients about the central role of the surrogate’s consent. Intended parents must understand that they assume the risk of changes in the surrogate’s decision-making during pregnancy, yet remain responsible for taking custody of the child regardless of the pregnancy outcome.
While this legal landscape may appear to favor the surrogate, there are many ways to mitigate risk. Early and open conversations about potentially polarizing issues, such as termination and selective reduction, can help ensure that the surrogate and intended parents share compatible views. Surrogates should also have access to discussions with the IVF physician to fully understand the medical risks they are assuming.
Ultimately, a woman’s right to control her own body cannot be signed away — not morally, not ethically, and not legally. Education and transparency at the outset of the surrogacy process are the strongest tools for reducing conflict and uncertainty later. By aligning expectations early and respecting the surrogate’s autonomy, all parties can move forward with a shared understanding, creating a more ethical and stable surrogacy journey for everyone involved.