Intended Parents

The Legal Surrogacy Process

There are three main legal processes in surrogacy: the surrogacy contract, the pre-birth order, and, in some cases, adoption or other post-birth legal procedures.

Surrogacy is an exciting process, and once a surrogate and intended parents have found each other, both parties are usually eager to start the embryo transfer and pregnancy. But before jumping into medical procedures, there are some very important legal factors to take into consideration.

When it comes to surrogacy laws, there are three main legal processes to be aware of: the surrogacy contract, the pre-birth order, and, in some cases, adoption or other post-birth legal procedures. Below, find an outline of these and other legal issues with surrogacy.

Surrogacy Contracts

Prior to the embryo transfer, every surrogate and intended parent needs to work with their own attorney to draft and negotiate a surrogacy contract.

Every surrogacy contract outlines two major legal issues:

  • Finances: The parties’ attorneys will negotiate the surrogate’s base compensation as well as additional payments for items such as maternity clothes. The contract should also determine added compensation in the case of any complications or other possible circumstances, like carrying multiples or going on bed rest.
  • Social Requirements: The contract will also outline the surrogate’s basic responsibilities throughout the pregnancy — abstaining from tobacco, alcohol and other drugs, for example. Most contracts also include certain social agreements between the intended parents and the surrogate, such as who will be present at key prenatal appointments and at birth.

There are many variables that can impact the course of a pregnancy and a surrogacy arrangement. It is vital to work with an experienced surrogacy attorney to draft a comprehensive contract that covers every possible outcome.

If you are working with a surrogacy agency, your specialist can likely coordinate legal representation for you. However, if you are looking for an independent attorney to assist you in drafting your surrogacy agreement, the American Academy of Assisted Reproductive Technology Attorneys (AAARTA) offers a directory of legal surrogacy experts.

The Pre-Birth Order

The next step in the surrogacy legal process is to officially establish the intended parents as the baby’s legal parents. This process looks different depending on state surrogacy laws.

In most surrogacy-friendly states, the intended parents can work with their attorney to file a pre-birth order. The pre-birth order essentially expedites the post-birth legal process and allows the baby to be discharged from the hospital to the intended parents.

The requirements to file a pre-birth order vary by state. In general, the intended parents will need to compile the following paperwork:

  • An affidavit from the physician saying that the embryos were in fact transferred to the surrogate
  • Any social documents prepared for the surrogacy, including evaluations of the intended parents and the surrogate
  • Paperwork signed by the surrogate family saying that they intended to relinquish any legal rights they have to the child once he or she is born

Attorneys generally begin working on the pre-birth order about seven months into the surrogate’s pregnancy. If a pre-birth order is filed, the only paperwork needed to finalize the surrogacy after birth is a document signed by the surrogate and her partner recognizing that they are not the legal parents of the child, as well as documentation from the intended parents stating that they will accept custody of the child.

Adoption and Other Post-Birth Legal Processes

In some cases, additional legal steps need to be taken after a baby is born via surrogate. This is true in any surrogacy arrangement in which one or both of the intended parents is not genetically related to the baby.

A stepparent adoption is required when one parent’s genetic material was combined with donor eggs or sperm to create the embryo. A husband may adopt his wife’s genetic child, or a wife may adopt her husband’s genetic child. Depending on state laws, unmarried same-sex couples may need to complete a second-parent adoption rather than a stepparent adoption.

If the intended parents completed an embryo adoption and neither of them is biologically related to the child, a full adoption is required by both parties.

Whenever an adoption is required in surrogacy, the intended parents must comply with their state’s adoption laws. Your attorney can help guide you through the legal adoption process based on your state’s laws.

Final Thoughts

The legal surrogacy process varies greatly depending on a number of factors. Gestational surrogacy laws differ from traditional surrogacy laws, state regulations affect the steps necessary to legally complete a surrogacy, and even the circumstances of each individual pregnancy can guide the legal process.

The best thing intended parents and surrogates can do to legally protect themselves throughout the surrogacy process is to work closely with an experienced surrogacy professional and a local attorney who is experienced in assisted reproduction.

Are you interested in learning more about surrogacy or starting the process? Complete our form to request free surrogacy information now.