What You Should Know About Surrogacy Laws Before You Start The Journey?

Ayaan DxBby:


Surrogacy is an exciting journey for both intended parents and surrogates. After going through a stringent screening process and other medical formalities, when the intended parents finally find the ideal surrogate, their level of happiness is beyond imaginable. After finding the surrogate, all they can think of is embryo transfer and pregnancy. But here’s when they should take a pause and consider the legal formalities related to surrogacy. 

If you are reading this right now, you’re probably in pursuit of surrogacy and want to find out about surrogacy laws in the US, international surrogacy laws, and whether you live in a surrogacy friendly state or not. 

The legal process of surrogacy is quite complicated. Mainly because there is no federal surrogacy law governing the US surrogates and intended parents. Surrogacy law varies from state to state. So, chances are you might end up living in a state within the US where surrogacy is banned. As a result, surrogacy law can impact your surrogacy journey. 

Hence, it is integral to understand the various laws related to surrogacy in the US. By the end of this blog, you will have an understanding of the following. 

  • What are the legal processes related to surrogacy? 
  • US surrogacy laws in a state 

Legal processes of surrogacy

Before jumping into the medical procedures of surrogacy, you must understand the legal factors that can affect your journey. 

When it comes to the surrogacy law, you must be aware of the three basic legal processes related to this form of assistive reproduction – the surrogacy contract, pre-birth order, and post-birth legal procedures (adoption)

While the first two are very common in all surrogacy cases, the third i.e. the adoption (legal process) is seen in few cases only, like gay surrogacy. 

Surrogacy Contracts: Before the embryo transfer, the intended parents as well as the surrogate need to work with their attorneys to draft a surrogacy contract. A contract mostly covers the legal issues related to finances and social requirements. The financial issues talk about the base compensation of the surrogate mother as well as the additional compensation for other surrogacy medical expenses. 

The contract also outlines the basic responsibilities of both the surrogate and the intended parents towards each other. The surrogate has to be extra careful to adhere to the social duties like abstaining from alcohol consumption, tobacco, and other harmful drugs. 

Pre-birth order: The pre-birth order contains the order that establishes intended parents as the legal parents of the baby. It kind of expedites the post-birth order. To get the pre-birth order ready, the attorney may require the signed affidavit by the physician confirming the transfer of the embryo into the surrogate mother’s uterus. It also requires documents signed by the surrogate’s family indicating that they will have no legal rights on the child once he or she is born. 

The pre-birth order process is different from state to state depending upon their respective surrogacy laws. The pre-birth order can be prepared once the surrogate pregnancy is about seven months or more. 

Adoption and post-birth legal formalities: In some cases, additional legal documents and formalities are required apart from the basic ones. 

Both the parents have no biological link with the child; a full adoption is required to have a legal claim on the baby. Same-sex parents such as the gay or lesbian parents need a stepparent adoption document. In some states, unmarried same-sex couples pursuing surrogacy need to file a second parent adoption instead of stepparent adoption. Again, these documents and their relevance depend upon the surrogacy law of that particular country. 

Outline of US surrogacy laws by state 

As there is no federal surrogacy law governing the United States, each state has its framework for surrogacy. You may find some states that allow surrogacy, while some may not fully allow it. For example, in some states, surrogacy for gay couples or same-sex parents is not allowed. 

Before you start your surrogacy journey or choose to work with a surrogacy professional, you must inquire about the surrogacy law of that particular state – to know whether it is favorable for you or not. 

The surrogacy friendly states are usually liberal towards intended parents’ marital status and sexual orientation. They allow compensated as well as uncompensated surrogacy contracts. Again, traditional surrogacy laws vary from state to state. In the same state, gestational surrogacy may be allowed while traditional surrogacy could be banned. 

The surrogacy agency you choose to work with may inform you about the surrogacy law of the state. They may also refer surrogacy attorneys who will be able to better guide you through the legal formalities of surrogacy. 

The US is considered to be one of the most surrogacy friendly countries with surrogacy being legal in most parts of it. States like California, Connecticut, Nevada, District of Columbia, New Hampshire, Oregon, Delaware, Washington, Rhode Island, Maine, etc. are considered to be surrogacy friendly states. So, if you are a resident of any of these states or are looking for international surrogacy, you may choose an agency from these states. 

States like Michigan and New York are not surrogacy-friendly areas. You might face difficulty in getting a pre-birth order in these states. Traditional surrogacy is also discouraged. 

Between the surrogacy friendly and non-surrogacy friendly states, some states fall somewhere in between. Their surrogacy laws and clauses might differ from the states where surrogacy is allowed. This does not mean that you can’t pursue surrogacy in these states. You can, but the legal process may be more complicated than in surrogacy friendly states. Florida, Georgia, Alabama, Minnesota, New Mexico, North Carolina, etc. fall in this category. 

Surrogacy law can deeply impact surrogacy contracts, surrogate compensation, pre-birth and post-birth legal documentation, gestational and traditional surrogacy, etc. Hence, it becomes very important to be equipped with the knowledge of laws related to surrogacy before you commit yourself to the process. Those who are pursuing international surrogacy should be more aware of these laws. 

Talk to your surrogacy professional now to know more about the surrogacy law of your country or state. 

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