One of the more surprising aspects of surrogacy for many people is this: The surrogacy agreement is not enforceable in the usual legal sense.
At first glance, that can feel confusing.
If the agreement cannot be enforced, what is its purpose?
Why spend time preparing it?
Why is legal advice required at all?
These are reasonable questions.
And the answer sits not in what the agreement does, but in what it represents.
Understanding what “not enforceable” actually means
In most areas of law, an agreement creates rights that can be enforced if something goes wrong. Surrogacy is different.
The law recognises that this is not a commercial arrangement. It is a deeply personal one, involving autonomy, relationships, and the wellbeing of a child. For that reason, the agreement does not compel a person to act in a particular way. It does not force outcomes.
But that does not mean it lacks value.
The agreement as a reflection, not a rulebook
A well-prepared surrogacy agreement is not about enforcement. It is about clarity.
It reflects:
- what has been discussed
- what has been agreed
- how the parties understand the arrangement will operate
In that sense, it is less a rulebook, and more a record of shared understanding.
When the underlying conversations have been thorough, the agreement tends to be straightforward. It captures what is already clear between the parties.
When those conversations have not occurred, the agreement becomes more difficult, not because of the document itself, but because it is trying to resolve issues that have not yet been worked through.
Where the real value sits
The real value of a surrogacy agreement is in the process of preparing it. It creates a structured opportunity to work through matters that might otherwise be left unspoken.
These often include:
- how decisions will be approached during pregnancy
- how communication will be managed
- how expenses will be handled in practice
- what each party expects from the relationship, both during and after the process
These are not abstract concepts. They are practical, day-to-day aspects of how the arrangement will operate.
The agreement brings those into focus.
Why this matters later in the process
The agreement also plays an important role after the child is born. When applying for a parentage order, the Court will consider whether:
- the arrangement was entered into before conception
- the required steps were followed
- there is evidence of a genuine, informed agreement between the parties
The surrogacy agreement forms part of that picture. It helps demonstrate that the process has been approached properly, with the required level of understanding and preparation.
The link between agreement and communication
What often becomes clear in practice is that the strength of the agreement reflects the strength of the communication that sits behind it.
Where there has been:
- open discussion
- willingness to explore difficult topics
- clarity around expectations
The agreement tends to support the process. Where those elements are missing, the agreement cannot compensate for that. It cannot create alignment where it does not already exist.
Moving away from the idea of “protection”
It is common for people to approach legal documents with the idea that they are there to “protect” them. In surrogacy, the concept of protection looks different.
It is less about enforcing rights, and more about ensuring that:
- everyone understands what they are entering into
- expectations are aligned
- the process has been approached thoughtfully
The agreement contributes to that, but it is not the sole mechanism. It sits alongside communication, counselling, and the relationship itself.
A practical way to approach the agreement
The most effective way to approach a surrogacy agreement is not as something to complete, but as something to work through. That means:
- allowing time for the discussions that sit behind it
- being open about areas of uncertainty
- using the process to clarify, rather than confirm assumptions
When approached in this way, the agreement becomes far more valuable. Not because it can be enforced, but because it reflects a process that has been done well.
Final thoughts
Surrogacy agreements matter. Not because they control the outcome, but because they shape the process.
They provide structure.
They encourage clarity.
They bring important conversations into the open.
And when those conversations have been had properly, the agreement becomes what it is intended to be: A clear reflection of a shared understanding.
next steps
If you are considering surrogacy, a good place to start is understanding what is required before conception.
Watch our webinar on the whole surrogacy process from start to finish, from a legal view.
Or contact us to discuss your situation
