The majority of our 50 states permit surrogacy either via legislation or a long history of favorable court rulings in favor of surrogacy. The United States is the most surrogacy friendly country in the world. To understand surrogacy laws in the United States, it is important to understand our legal system. In its most basic form, the USA has a 2 tier legal system: Federal Law and State Law.
Surrogacy falls under the category of Family Law, which is at the state level, which is why we have 50 different laws here in the United States. In a surrogacy arrangement, it is important for both the Intended Parents and the Surrogate Mother to have independent legal counsel. To view the legal surrogacy guidelines for each state, click on the state in the map below.
- Legal Aspects by Program: IVF & IVF/ED
- Surrogacy Contracts
- Finalization of Parental Rights
- Birth Certificate and Passport
Legal Aspects by Program: IVF Legal Aspects & IVF/ED Legal Aspects
When pursuing a surrogacy arrangement, Intended Parents should consider various factors which might have a legal impact upon them here in the United States and/or in their home country. In the United States, consideration should be given to the parents' sexual orientation, genetic relation to the embryos to be implanted, the surrogate's marital status, and other factors which may impact how the courts in the United States will recognize the Intended Parents. Overseas, international Intended Parents should consult with trusted local counsel to discuss the same and how their home country will view them in relation to the child. Depending on the facts, the parents might require an initial birth certificate listing a father and the Surrogate on the birth certificate, or might require a post-birth adoption to terminate any presumption of the Gestational Carrier's parentage in the eyes of that foreign nation. Additionally, international Intended Parents should consider how/if their child's ability to inherit from them is affected by the surrogacy process and the view their country takes of their parental roles.
Surrogacy Contracts
The surrogacy contract is the document which dictates the relationship between the Surrogate, her husband/partner if any, and the Intended Parents. It addresses important legal issues such as identifying the parties, the genetic makeup of the embryos to be used, responsibility for medical expenses of the Gestational Carrier and of the baby, the fact that the parties are represented by legal counsel, declaration of the parties' intent with respect to parentage and custody, and how the various expenses anticipated by a surrogacy arrangement shall be paid. The agreement will also address important social issues such as medical testing, psychological evaluation of the parties, criminal history of the parties, a desire to enter into the agreement, and various behavioral guidelines for the Gestational Carrier to follow such as avoiding physically dangerous behavior, limiting sexual contact for various periods of time, and following her treating physician's orders. A well-thought-out surrogacy agreement should be all encompassing and should be thoroughly discussed between each party and their respective attorney. The agreements are negotiated between the attorneys and when ultimate terms are agreed upon, the parties execute a final version of the same and are then ready to proceed with the medical process.
Finalization of Parental Rights
When the Gestational Carrier is confirmed pregnant, the pregnancy's progress is tracked by the Reproductive Endocrinologist for approximately the first ten to twelve weeks before the Surrogate graduates to her Obstetrician's care. Around completion of the first trimester of pregnancy, the Parties will be referred back to legal counsel to commence the parentage process of finalizing the Intended Parents' parental rights. Parentage proceedings will typically be filed in the Surrogate's state and local counsel in such state will be required. Such attorney will prepare the necessary court documents which include, among other documents, declarations from the Intended Parents, the Gestational Carrier, her husband/partner if any, the fertility physician, and each attorney. Upon completion of such documents, the attorney will file the same with the appropriate court and seek the judge's approval on the proposed parentage order. Depending on the particular state and the particular set of facts this might be completed before birth of the child, or require a post-birth process to complete the order.
Birth Certificate and Passport
Once the parentage order is complete, a certified copy of the court's order is then provided to the delivery hospital's birth clerk along with a letter of explanation regarding the surrogacy arrangement. Once the baby is born, the delivery hospital's birth clerk will assist the parents in completing forms for baby's birth certificate pursuant to the court order. The birth clerk delivers the forms to the Department of Vital Records, which will then process and prepare the birth certificate accordingly. International Intended Parents can then obtain the baby's passport, which can be expedited by use of a passport expediting service, or by demonstration to the passport office that an international flight is scheduled within a few days of visiting the passport office.