One of the biggest concerns intended parents may have before beginning surrogacy is:
Can a surrogate change her mind and decide to keep the baby?
For a properly structured gestational surrogacy journey, particularly in a state such as California, the situation is very different from what movies and headlines sometimes suggest.
A gestational surrogate does not provide the egg used to create the embryo. And in California, properly executed gestational surrogacy agreements provide a legal framework for establishing the intended parents as the child's legal parents.
However, there is another important distinction:
Parentage rights and medical decision-making rights are not the same thing.
Here's what intended parents should understand.
In California gestational surrogacy, a properly executed agreement identifies the intended parent or parents before the pregnancy.
California Family Code §7962 provides a process through which a court can establish the intended parents' parent-child relationship and establish that the surrogate—and her spouse or partner—is not a parent and has no parental rights or duties regarding the child.
This is one reason legal preparation happens before embryo transfer, not after the baby is born.
It is also why intended parents and surrogates should each work with qualified, independent attorneys experienced in assisted reproduction.
Yes—and this is where the issue is often misunderstood.
A surrogate may not be the intended legal parent, but she is still the pregnant patient.
According to the American Society for Reproductive Medicine (ASRM), gestational carriers retain decision-making authority over their own medical care. They are the source of consent regarding their treatment from embryo transfer through prenatal care, labor, delivery and aftercare.
That means intended parents cannot simply make medical decisions about the surrogate's body because the pregnancy involves their future child.
This distinction is crucial:
A well-structured surrogacy journey needs to respect both.
Before embryo transfer, the surrogate and intended parents enter into a detailed legal agreement.
The agreement may address issues such as:
ASRM recommends that potential areas of disagreement—including embryo transfer, prenatal testing, pregnancy termination and possible obstetric complications—be discussed before entering the journey.
The purpose isn't to predict every possible event.
It's to make sure both sides understand each other's expectations before pregnancy begins.
No.
Even when a contract addresses how the parties expect certain situations to be handled, a surrogate cannot be compelled to undergo or refuse a medical procedure.
ASRM states that gestational carriers retain ultimate authority over procedures performed on their bodies, regardless of contractual provisions or potential consequences of a disagreement.
For example, important topics such as:
Prenatal testing
Pregnancy termination
Multifetal pregnancy reduction
Delivery and other medical procedures
should be discussed extensively during matching, counseling and the legal process.
The goal is to identify major differences in expectations before embryo transfer, rather than discovering them during pregnancy.
Not every disagreement becomes a legal dispute.
Sometimes the issue may involve communication, appointment expectations or another practical concern that can be addressed with help from the agency or case manager.
More serious disagreements involving medical or contractual matters may require the parties to consult their independent attorneys.
ASRM specifically recommends separate independent legal counsel for gestational carriers and intended parents because both have significant interests in the arrangement.
This is also why choosing a compatible surrogate is about more than medical qualifications.
Values and expectations matter.
The intended parents and surrogate have different legal interests.
They therefore should not simply rely on one attorney representing everyone.
ASRM recommends that gestational carriers have separate independent legal counsel, and California law contains specific requirements governing gestational carrier agreements and their execution.
An experienced reproductive attorney can help each party understand:
What the contract requires
What rights they retain
How parentage will be established
What happens if circumstances change
How potential disputes are addressed
Legal clearance should occur before the medical team proceeds with embryo transfer under the planned arrangement.
The best protection isn't simply having a long contract.
It starts with a good match.
Before moving forward, intended parents and their surrogate should openly discuss major expectations, including:
Communication style
How often will everyone communicate?
Pregnancy expectations
What does each side expect during prenatal care?
Medical decisions
Are there major differences in views regarding prenatal testing, termination or pregnancy complications?
Delivery
What does everyone hope the hospital experience will look like?
Relationship after birth
Does either side expect ongoing contact?
If major values are incompatible, it may be better to recognize that before embryo transfer.
ASRM similarly advises against proceeding when there is significant misalignment or lack of respect between the parties.
California law provides a process for properly executed gestational surrogacy agreements under which a court can establish the intended parents as the child's legal parents and establish that the surrogate does not have parental rights or duties. Individual circumstances should always be reviewed by a California reproductive attorney.
A gestational surrogate does not provide the egg used to create the pregnancy and therefore does not have a genetic relationship to the child through the egg.
No. The surrogate remains the patient and retains authority over her own medical care.
This can become a serious issue if it conflicts with previously discussed expectations. However, the surrogate retains ultimate authority over procedures performed on her body. The parties may need to consult their attorneys and medical professionals regarding the specific situation.
Addressing parentage, responsibilities, financial arrangements and important pregnancy expectations before treatment helps everyone understand the arrangement before a pregnancy begins. California also imposes specific requirements on gestational carrier agreements.
So, can a surrogate change her mind?
The answer depends on what exactly "change her mind" means.
In a properly structured California gestational surrogacy arrangement, intended parentage is addressed through the agreement and legal process; California law provides a mechanism for establishing the intended parents' parentage and that the surrogate is not a legal parent.
At the same time, the surrogate does not give up control over her own body simply because she signed a surrogacy agreement. She remains the patient and retains medical decision-making authority throughout the pregnancy.
That's why successful surrogacy depends on more than a contract.
It depends on careful matching, honest conversations, independent legal representation and clear expectations before embryo transfer.
At New Grace, we help intended parents and prospective surrogates navigate the journey from matching and screening through legal coordination, embryo transfer, pregnancy and delivery.
Understanding each other's expectations early can help create a more transparent and supportive journey for everyone involved.
This article is for general informational purposes only and does not constitute legal or medical advice. Surrogacy laws vary significantly by state and jurisdiction, and individual circumstances may affect legal parentage and contractual rights. Intended parents and gestational carriers should obtain independent advice from qualified reproductive attorneys.
New Grace Fertility | Asian Family Surrogacy Inc.
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