A surrogacy arrangement asks two parties to enter a contract that conventional contract law was not built to handle. One party agrees to gestate a child for the other and to relinquish the child at birth. The other party agrees to assume parental rights and obligations and, in commercial arrangements, to pay. The contract is signed before pregnancy begins; it must be honored across the months of gestation, through birth, and into the establishment of legal parentage. American law has spent four decades trying to determine when and on what terms such contracts are enforceable, and the answer still varies dramatically by state.
Law 4 at the collective scale is the planning law. Surrogacy is one of the most ambitious planning instruments contemporary partnerships have available: it allows the formation of biological families where conventional reproduction is impossible or undesired, including for same-sex male couples, single intended parents, women without functional uteruses, and women for whom pregnancy would be medically dangerous. It also imposes a planning burden of unusual complexity, because the arrangement involves at least two parties whose interests must align across a long horizon and through events — the gestational experience, the bond that forms or does not form, the birth — that resist full pre-negotiation.
Susan Markens's foundational sociology of surrogacy traced the bifurcation of American law into states that recognize and enforce surrogacy contracts and states that do not. New York, until 2020, was among the latter; the state's reversal of position that year, allowing compensated gestational surrogacy under strict regulation, marked a notable shift. California has long been the most permissive jurisdiction, with case law dating to the 1990s establishing the gestational carrier's lack of parental rights when the embryo is not her genetic offspring. Michigan, by contrast, has historically treated surrogacy contracts as void and unenforceable. The map is a patchwork, and intended parents and gestational carriers can find themselves in contracts whose enforceability depends on which state's law applies — a question that is itself contested when the parties live in different states or when birth occurs in a different state than the one of contract execution.
The leading historical case is Baby M, decided by the New Jersey Supreme Court in 1988. Mary Beth Whitehead, the surrogate, had been inseminated with William Stern's sperm and carried the resulting pregnancy. She changed her mind about relinquishment after birth. The court declined to enforce the surrogacy contract on public-policy grounds but awarded custody to the Sterns on best-interests grounds. The case shaped the field for a generation. Subsequent cases involving gestational surrogacy — where the carrier has no genetic connection to the child — have produced more predictable outcomes for intended parents, and the field has largely shifted to gestational arrangements, with traditional surrogacy now rare.
Modern gestational surrogacy contracts typically run to fifty or more pages and address: compensation amounts and schedule; medical decision-making during pregnancy; behavior restrictions (diet, travel, sexual activity); selective reduction and termination provisions; insurance arrangements; coverage of expenses; psychological screening; legal parentage establishment, usually through a pre-birth order; the gestational carrier's spouse's consent if applicable; provisions for contingencies including the death or divorce of the intended parents; and post-birth contact arrangements if any. The contracts are negotiated with separate counsel for each party. They are enforceable in most permissive states only if the procedural requirements — counsel, psychological evaluation, medical screening, pre-birth or post-birth order — are met.
The romantic partnership enters this landscape as the unit that decides to pursue surrogacy and that bears the joint responsibility for the resulting child. The decision is consequential: emotionally, financially, ethically. Costs typically range from one hundred thousand to two hundred thousand dollars in the United States, more in some markets, less in international arrangements that raise their own legal and ethical questions. Partnerships choosing surrogacy must align on the medical, ethical, and relational dimensions of the arrangement before contracting, because mid-arrangement disagreements can be devastating to the gestational carrier and difficult to resolve.
The collective dimension is that surrogacy is becoming a more visible and accepted form of family formation, particularly among same-sex male couples for whom it is the primary route to biological parenthood. The number of arrangements per year has grown steadily. Public acceptance has shifted, though significant religious and feminist critiques remain. Catholic teaching opposes surrogacy. Some feminist scholars, including the strand represented in critical sociologies of reproduction, argue that commercial surrogacy commodifies women's reproductive labor in ways that disproportionately affect economically vulnerable women. Others argue that it provides meaningful work and family formation opportunities that should not be paternalistically restricted. Both critiques are sustained and serious; partnerships pursuing surrogacy do well to engage them honestly rather than to dismiss them.
What endures is that surrogacy is, at its core, a planning instrument that requires unusual trust across an unusual relationship. The contract supplies a structure; the relationship between intended parents and gestational carrier supplies the content. Partnerships that approach the arrangement as a joint commitment with a third party — rather than as a service transaction or as a private family matter — tend to produce outcomes that participants describe positively years later. Those that treat it as a market transaction or as an instrument over which they exert control tend to produce friction that the contract cannot fully resolve.