In every surrogacy arrangement, legal actions are required to officially establish the intended parents as the baby’s legal parents. The exact process varies based on the specific circumstances of the surrogacy as well as state surrogacy laws.
In this article, find some of the legal steps that may be necessary to establish the intended parents’ legal rights in surrogacy.
Understanding the Parentage Act
Under the Uniform Parentage Act, a woman who gives birth to a child is presumed to be the biological and legal mother of that child; if she is married, her husband is presumed to be the child’s legal father. However, this is obviously not true in gestational surrogacy.
Because of the Parentage Act, there needs to be an acknowledgement of parentage by the court in order to establish the intended parents as the child’s true legal parents.
This happens after the baby’s birth, when the surrogate and her husband, if applicable, sign documents stating that they are not the legal parents of the child and that they are relinquishing any rights they may have to the child. These documents are then given to the intended parents’ attorney, who submits it to the court along with other paperwork necessary to prove parentage.
In a traditional surrogacy, however, some additional legal steps are necessary because the surrogate is also the biological mother of the child. In these scenarios, the surrogate’s rights need to be terminated, and she and her husband (if applicable) will have to sign consent to relinquish their parental rights. Following termination of rights, the genetically unrelated intended parent will need to complete a stepparent or second-parent adoption.
Filing a Pre-Birth Order
In some cases, the documents prepared by the intended parents’ attorney and submitted to the court to prove parentage may be prepared ahead of the baby’s birth. This is known as a pre-birth order.
In states where pre-birth orders are legally recognized, this step benefits intended parents in the following ways:
- Declares that the intended parents are the child’s legal parents
- Requires the hospital to list the intended parents on the child’s birth certificate
- Allows the intended parents to make medical decisions for their baby
- Helps resolve insurance coverage issues
- Allows the child to be discharged from the hospital to the intended parents
- Provides peace of mind for the intended parents
The requirements to establish a pre-birth order vary by state. In general, the intended parents’ attorney will need to file a physician’s affidavit confirming the embryo transfer, as well as any social documents and evaluations prepared for the intended parents and surrogate during the surrogacy process.
In a pre-birth order, these documents may be filed during the surrogate’s pregnancy, often around the seventh month. When a pre-birth order is in place, the only remaining step necessary to finalize the surrogacy is the surrogate’s acknowledgement that she is not the legal mother of the baby, which must be signed after birth.
Not every state allows pre-birth orders, and the requirements for filing a pre-birth order can vary significantly, so it is important to have an experienced attorney who understands the process. In non-surrogacy friendly states where there are no pre-birth orders, all of the legal work has to be done after the baby is born, and a court hearing may be required.
Stepparent, Second-Parent and Embryo Adoption
If the intended parent(s) are not genetically related to the child, they may need to complete an adoption to establish legal custody of their child.
In traditional surrogacy and other cases where one intended parent is the biological parent and donor eggs or sperm is used, the genetically unrelated intended parent will have to complete a stepparent or second-parent adoption. While adoption can be a lengthy and complicated process, stepparent adoption is often simplified; state laws may waive certain adoption requirements, such as the home study and post-placement supervision.
Regardless of the type of adoption required, the process, home study and post-placement requirements vary based on each state’s adoption laws.
Can the surrogate keep the baby?
When surrogacy is completed legally and the correct process is followed, the surrogate has no parental rights or responsibilities to the child she carries.
Surrogates and intended parents enter into their surrogacy agreements with one very clear goal in mind: to add to the intended parents’ family. The surrogate is well aware going into the surrogacy process that she is carrying the baby for another family, and this is clearly outlined in the surrogacy contract.
Most surrogates agree that the prenatal bond they develop with their surrogate baby is simply not the same as the maternal bonds they formed with their own children during pregnancy. However, if a surrogate is struggling with any feelings of grief, loss, sadness or doubt, counseling is highly recommended to help prepare her for the emotional transfer of the baby to the intended parents.
With surrogacy, it is clear from the beginning who the child’s parents truly are — they are the people who have hoped and waited for years to add to their family. The above steps just make it official.
It is important for surrogates and intended parents alike to have a relatively solid understanding of the legal processes involved in surrogacy, as well as each party’s roles and responsibilities to the child. Each party should work closely with their surrogacy specialist and an experienced assisted reproduction attorney to ensure all steps are completed legally and all parties are protected throughout the process.
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