🕒 Last updated: December 16, 2025
Surrogacy can potentially involve multiple stakeholders. These may include the intended parent (IP), the surrogate mother and potentially her partner, the IVF clinic, the agency, and the gamete donor. Any of these persons could potentially be a party to a surrogacy contract.
In this article, we focus on the main actor: the surrogate mother. The discussion analyses the surrogate’s obligations under the contract and concludes that since the surrogate assumes multiple obligations and risks, she must receive free, informed, and mandatory legal counselling before committing to a surrogacy contract.
Intended parents engaging with a surrogate will be required to enter into a written legal agreement, no matter which jurisdiction is involved. Both parties will have their attorney review the draft agreement and make necessary changes. The contract typically specifies the surrogate’s obligations, details of which are discussed below:
1. Obligation regarding submission to medical and psychological screening
The surrogate is required to submit to medical and psychological screening. This is to test the surrogate’s suitability and eligibility to commit to the arrangement. The surrogate must satisfy a biological aptitude necessary to successfully carry a pregnancy to term.
Medical screening may include bloodwork to check infectious diseases like HIV or Hepatitis, and to determine blood type and RH factor, hysteroscopy, saline sonogram, hepatitis testing, STD testing, urine drug scan, and a couple of other tests depending on the proposed IVF procedure and the age of the surrogate.
Psychological screening may focus on discussions of potential risks involved in the exercise, including risks of complications, incapacitation, or even death. Others may include the emotional and psychological challenges that the surrogate may encounter with post-birth separation regarding her obligation to surrender immediate custody of the child to the IP upon birth.
2. The obligation to submit to embryo transfer
Surrogacy typically involves the use of IVF procedures on the surrogate. Therefore, the surrogate undertakes to be present on a specified agreed date to undergo the procedure of embryo transfer. This is a simple procedure, rarely requiring anaesthesia or sedation. A long, thin catheter containing the embryo, along with a small amount of fluid, is passed through the cervix into the uterus, where the embryo is released. Some IVF clinics require bed rest for 48 to 72 hours. Others do not.
Though the surrogate undertakes to submit to medical and psychological screening and embryo transfer, she may pull out of the arrangement at any time before conception without any liability under the contract. This is consistent with the principle that the contract is revocable at any time before confirmation of pregnancy.
3. Obligations to refrain from conduct that may potentially harm the integrity of the unborn child.
Under a surrogacy contract, the expectation of the IP is to have the surrogate deliver a healthy living child. The surrogate is therefore obliged to act in a moderately diligent manner in order not to expose herself or the fetus to any potential risk of harm. Accordingly, the parties may elect to include provisions that have a limited moderate impact on the surrogate’s autonomy. Examples include abstaining from alcohol, drugs, and smoking. Others include that the surrogate takes pregnancy vitamins or other medication as prescribed, eats a healthy and balanced diet, undertakes regular recommended exercise, and undergoes certain prenatal or screening procedures.
The contract, however, may not deny the surrogate the right to make decisions to safeguard her health or the health of the fetus she is carrying. Therefore, an IP is not permitted to influence the surrogate’s preference for giving birth or significantly restrain or manipulate her other lifestyle choices before, during, or after the pregnancy. One writer noted as follows:
“When the surrogate signs the contract, she agrees to perform certain specific duties, but the couple cannot use the surrogate’s body in any way they please; they can only expect that she carries out the specific expectations set out in the contract.”
4. The obligation to receive independent legal counselling
It is obligatory for the surrogate to receive independent legal counselling before signing the contract. This is rooted in sound social policy. Legal counselling allows the surrogate to make informed decisions regarding the legal obligations and the risks involved under the surrogacy contract. Risks include the agreement not proceeding as intended, where the intended parent refuses to take the child, or requests her to abort the child. The surrogate’s attorney must be separate and independent from the intended parent.
To ensure that she makes an informed decision, the legal counselling must include verbal and written advice regarding the nature and effect of the agreement, the legal consequences of agreeing, the nature of payments permitted by the agreement, the calculation of amounts payable and the timing of amounts payable, the parties’ rights regarding termination of the agreement before and after birth of the child, and the legal presumption regarding parental care and the transfer of parental rights.
The surrogate must document her receipt of independent legal counselling. The attorney may issue a certificate of Independent Legal Advice certifying that the attorney has advised the surrogate about her legal obligations and the risks involved in the contract. A Certificate of Independent Legal Advice is rebuttable evidence to any allegation that the surrogate did not understand the terms of the contract before signing.
To ensure that the surrogate’s access to legal advice is not impeded by financial constraints, the must IP bear the cost for the advice. The fee must be stated as a reimbursable expense, with a clear fixed amount stated in the contract. The fee must clearly be captured as an expense and accordingly be separate and distinct from the surrogate’s compensation.
5. The obligation is not to terminate the pregnancy unless a medical opinion certifies the termination.
With the substantial financial and emotional commitments involved in surrogacy, few IPs would want to contemplate the possibility of having the surrogate terminate the pregnancy of their unborn child. Nonetheless, it is important to include provisions addressing the issue.
The contract must include provisions specifying the circumstances under which the pregnancy may be terminated. Under surrogacy, the decision to terminate the pregnancy resides with the IP. Since the contract is based on the premise that the surrogate will carry the pregnancy to term, it would undermine this very basic premise if the surrogate were allowed to make the primary decision regarding termination of the pregnancy.
However, the surrogate may terminate the pregnancy if it is necessary to save her life as advised by the medical practitioner. In the case of the IPs, they can request termination where scans reveal that the fetus is suffering from some serious malformation or severe birth defect. If the surrogate refuses to abort, the IP is absolved of their obligation to pay any expense, fee, or compensation. The surrogate then assumes all risks and expenses associated with the gestation and future custody of the child.
6. Obligations to surrender custody of the child and to transfer legal and parental rights to the IP.
The main theme of a surrogacy contract is to have the surrogate carry a fetus to term for the IP and to relinquish custody of the child to the IP. This obligation must be sufficiently captured in the contract. The contract will oblige the surrogate to provide her consent to all legal processes required to truncate her parental rights to the child. This may include an obligation to sign paperwork, affidavits, consents, and potentially make a personal appearance in court to testify.
The obligation to relinquish custody is basically in two parts. One, to yield physical custody of the child to the parents; and two, to consent to the transfer of legal and parental rights to the IP.
The latter obligation consists of all legal processes that are required to effectively transfer parentage to the IP. There may be provisions requiring the surrogate to surrender immediate custody of the child to the IP. However, custody of the child is no proof of parentage. Therefore, there must be a corresponding legal process to confer legal parentage on the IP.
In jurisdictions where prebirth orders are allowed, parental rights may be transferred before the child is born. In Ghana, an application to transfer parental rights by prebirth order must be brought within 12 weeks from the date of the introduction of the gamete or embryo into the surrogate.
Where there are no options for prebirth orders, the process for the transfer of parentage begins after the child is born. In Ghana, an application for a post-birth order must be brought within six months from the date the child is born. The application, however, cannot be lodged until the child attains 28 days.
Conclusion
The surrogate, being the main actor in a surrogacy arrangement, assumes many obligations under a surrogacy contract. She also assumes many risks. For these reasons, she must be informed in clear detail of the extent of her obligations and the risks she is expected to assume under the contract. Therefore, her receipt of independent legal counselling must be a prerequisite to making any firm commitment to sign a surrogacy contract. Legal counselling will adequately inform the surrogate of all her obligations and the risks to guide her in her decision-making.
Founded in 2015, Acheampong & Associates is a Ghana-based law firm specializing in Immigration, Corporate, Family, Real Estate, and Surrogacy Law. For over half a decade, we have delivered client-focused legal solutions, with a strong niche in world-class immigration, corporate and family services for individuals and organizations. Our team has the expertise and resources to help clients navigate complex legal requirements with confidence and ease.
