Surrogacy Laws and Legal Considerations

Filed under: Parenting

The laws governing surrogacy agreements vary from state to state. They can also differ with regard to traditional and gestational surrogacy, as well as a state’s view on LGBTQ parents.

Legal Considerations

For those who decide that surrogacy is the right option for building a family, it is important to obtain legal services throughout the surrogacy process.

An attorney needs to be retained to create a contract between the intended parents and the surrogate, often referred to as the surrogacy agreement. IVF (in vitro fertilization) clinics require a surrogacy agreement to be in place prior to beginning any medical procedures. The purpose of the contract is to answer many of the questions that may arise during pregnancy such as who will have custody of the child if something were to happen to the intended parents prior to the birth. The contract is not only in place in the event of a dispute, but can also prevent disputes from occurring by laying out all of the intricacies of the process beforehand.

Subsequently, legal service will be needed to obtain a court order declaring that the intended parents are the sole legal parent(s) and that the surrogate has no parental or legal rights or obligations. The court order will also direct the department of Vital Records to issue a birth certificate placing the intended parents’ name(s) on the certificate. Depending on the state this can be done near the end of the second trimester so that it is in place before the birth.

Due to the complexity of surrogacy, it is advisable to seek out an attorney experienced in reproductive technology law. The surrogate should have her own counsel at the contract negotiation stage.

Do-It-Yourself surrogacy contracts pose many risks and are not advisable.

Acknowledgements: This information was provided by Diane S. Hinson, Esq. and Linda C. ReVeal, Esq. of Creative Family Connections LLC.

Disclaimer: This document is provided for information purposes only and is not intended as legal advice. If you need legal advice regarding your specific situation, we strongly recommend that you consult a competent, licensed family law attorney who is familiar with these issues. It is also important that you understand that the information provided here in no way constitute, and should not be relied upon, as legal advice.