Intended Parents

How Do You Protect Your Parental Rights in LGBT Surrogacy?

Whether it’s through a pre- or post-birth order or a stepparent or second parent adoption, you will need to take legal steps to protect your parental rights.

In many ways, the same-sex surrogacy process will be no different for you than it is for any heterosexual intended parents pursuing surrogacy. However, there are some important differences to be aware of — one of them being parental rights.

In same-sex surrogacy, an embryo is created with a donated egg or sperm, whether it is from an anonymous or identified donor or someone you know personally, like a friend or family member. Because same-sex couples pursuing surrogacy will only have one parent genetically related to their child, additional steps must be taken to establish parental rights for the non-genetically related parent. This can usually be accomplished through a pre- or post-birth order, a stepparent adoption or a second-parent adoption.

Which method you use to establish parentage will depend upon several factors, including your surrogate’s marital status, your marital status and the inherent rights of any gamete donor. The best thing you can do before you even start your surrogacy process is speak to an experienced local surrogacy attorney, as they will be able to evaluate your situation and determine what steps are needed to establish proper parental rights for both of you. The legal steps you can take to protect your rights to your child born via surrogacy will depend upon your state’s surrogacy laws.

Generally, there are a couple of paths you might take, which we’ve described below.

Pre- or Post-Birth Order

One of the most common ways that same-sex couples protect their parental rights to their child is through a pre- or post-birth parentage order. This is a legal process completed by your surrogacy attorney (usually during the surrogate’s second trimester) that may go into effect before or after your child is born. The difference between a pre-birth and post-birth order is just what it sounds like; the former can be submitted to a local court before the baby’s birth, while the latter must wait to be submitted until after the baby is born. When this order can be submitted will depend upon your state’s surrogacy laws.

Where allowable, pre-birth orders are immensely helpful, as they give same-sex couples parental rights before the baby is even born. This means that the hospital experience can logistically be much smoother, because intended parents will:

  • Be able to make medical decisions for their child
  • Be listed on the child’s original birth certificate
  • Have the child discharged from the hospital directly to them
  • And more

A pre-birth order can also be helpful in resolving insurance coverage issues.

A parentage order will establish both the genetically related and the non-genetically related parent’s rights to their child from as early on as possible. Your surrogacy attorney will also take the necessary steps to terminate any rights a gamete donor or the surrogate may have during this process, eliminating the need for any post-birth legal actions to establish parentage.

Stepparent and Second-Parent Adoption

In some cases, a pre- or post-birth parentage order cannot be completed due to the surrogacy situation and the state’s surrogacy laws. In these cases, same-sex couples must establish their parental rights to their child through an adoption process. Which adoption process you use will depend on your marital status.

The most common legal method of establishing parental rights for children of same-sex couples is through a stepparent adoption. Since the Supreme Court case of Obergefell v. Hodges ruled that same-sex marriage is legal throughout the U.S., same-sex couples have the ability to get married and, therefore, complete a stepparent adoption (where they may have been restricted to second-parent adoptions before). If you cannot complete a parentage order, you can easily complete a stepparent adoption after your child is born to protect the rights of the non-genetically related parent.

You may have heard that a second-parent adoption is an option for you and your spouse if you are unmarried and pursuing the surrogacy process. And, while this may be true in certain states, the legal availability of this adoption process is decreasing. Because same-sex couples can now legally get married, some judges will not allow second-parent adoptions for unmarried couples. If you’re thinking this kind of adoption is needed in your surrogacy process, your surrogacy attorney can inform you of the states that allow second-parent adoption and if it’s an option for you. If it’s not, you may need to postpone your family-building process until you and your partner are married.

It’s encouraged that you speak to your lawyer about what legal options are available for you as early as possible in your surrogacy process to make sure you can protect your rights to your child. Both of these adoption processes will terminate the rights of any gamete donor you use (if they haven’t already been terminated by the gamete bank) and the surrogate, if she has any inherent rights by giving birth to your child.

Why is a Birth Certificate Not Enough?

In many states today, same-sex couples who add a child to their family through surrogacy can have both of their names placed on their baby’s birth certificate at the hospital. While this may seem like a legally binding document that protects your parental rights, that may not always be the case.

Because parentage laws vary by state, what protects your rights in one state may not necessarily protect your rights in another. To make sure that your parental rights are protected throughout the United States, it’s important that you work with your local attorney to obtain the highest possible protection for your rights, even if it includes a more lengthy legal process than you may have first anticipated. Once your rights are protected, you can feel secure in knowing that you are recognized legally as the family you’ve always known yourself to be.

Talk to your surrogacy agency and surrogacy attorney today to learn more about how you can protect your parental rights in an LGBT surrogacy.

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