Surrogacy Laws Explained

Surrogacy law is multifaceted, as it depends on the individuals involved: the intended parents (IPs), the gestational carrier (GC), and any gamete donor(s). Surrogacy law varies according to the GC’s and IP’s home state and the place of delivery of the child. Because there is no federal surrogacy law in the United States, gestational surrogacy laws can differ greatly depending on the state and even counties within states. 

Surrogacy law has many complexities, making it imperative that all prospective parents and prospective gestational carriers work with a reputable agency, such as Reproductive Possibilities, which offers a more cultivated, compassionate, and personal approach to surrogacy. 

Location is Essential

In general, IPs can pursue gestational surrogacy from anywhere in the world but, when working with a U.S. carrier, they must work with one who lives in one of the states in which surrogacy is legal. Furthermore, gestational surrogacy must be legal in the state in which a surrogate will give birth, as state jurisdiction governs who is named as the parents in preparing the birth certificate. 

Same-sex Couples Pursuing Surrogacy

The law can be more complicated for same-sex couples pursuing surrogacy, as some states may not allow both parents’ names on a birth certificate without an additional legal process. In this case, the IPs may need to legally adopt the baby.

Reproductive Possibilities offers a wide range of fertility resources for growing LGBTQ+ couples and supporting LGBTQ+ family members. 

IPs Establishing Parentage 

All IPs must legally declare themselves the child’s parents. There are several ways in which parenting is established in surrogacy. Two of the more common ways are listed below:

  • Pre-birth order: This is a legal order issued by the courts that provides parentage before the baby is born by terminating the rights of the GC and her partner (if applicable) before the GC gives birth. Obtaining a pre-birth order is ideal because it makes it easier to direct the care of the baby in the hospital and to place the IP’s names on the original birth certificate. The pre-birth order is typically initiated by the IPs’ lawyer and is usually prepared on standard forms or what is often referred to as court pleadings. It’s recommended that the pre-birth order is started at the beginning of the second trimester once the pregnancy is viable. This also ensures that there is ample time for the paperwork to process, and that parentage is established before the birth should the GC go into early labor. This is especially important if she is carrying multiples as multiples tend to be delivered early.
  • Post-birth order: This is the alternative to a pre-birth order, where legal parentage is established after birth. A post-birth order is used:
    • if a state or a judge does not allow a pre-birth order to be signed;
    • if a child was born before the pre-birth order was signed.

In almost all surrogacy situations, a court order is also required to establish parentage, which is essentially the final judgment of parental rights. Typically, court orders are issued after signed affidavits are filed with the court. Affidavits are notarized documents, and in this case, establish the facts of the surrogacy arrangement. In a surrogacy arrangement, they are typically signed by the IVF physician, the attorneys, the IPs, the GC, and her partner (if applicable). The order, when issued, declares the IPs as the legal parents of the child.

Working With a Surrogacy Agency

This article is not intended as legal advice. It is imperative that both the IPs and the GC and her husband/partner, if any, work with a reputable and experienced agency like Reproductive Possibilities to explain the general surrogacy laws, set the parties up with lawyers in the appropriate states and/or countries, and help ensure the surrogacy process is as seamless as possible. 
If you’re interested in finding out about the surrogacy process for intended parents, applying to become a surrogate, or want to learn more about RP, give us a call at (201) 505-0078, fill out our Contact Us form and follow Reproductive Possibilities on social media: we’re on Facebook, Instagram, Twitter, and Pinterest

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