For first-time intended parents, the surrogacy process can seem overwhelming and confusing. When you consider the practical, emotional and legal aspects of having a child via surrogacy, it can seem like a completely different world than what you’re used to.
Because surrogacy can still be a controversial family-building process, you may wonder about the legal aspects involved. It’s incredible important to understand the legal process of surrogacy before beginning to determine whether it’s really the right choice for your family.
Below, you’ll find some of the most common questions intended parents have about the legal process of surrogacy. Remember, the best way to answer these is with a local surrogacy attorney, as state surrogacy laws vary greatly and will impact your personal surrogacy journey.
However, to help you start your legal research, we’ve provided some basic answers to these questions below.
1. Is surrogacy legal in the U.S.?
There are no federal surrogacy laws in the United States. Instead, each state has either enacted its own surrogacy legislation or stayed silent on the matter. Therefore, your individual surrogacy situation will depend greatly on the state where your surrogate lives and plans to deliver your baby.
There are varying degrees of legality to surrogacy in the United States. Certain states completely allow the practice and have set laws for protecting surrogates and intended parents, while other states have no surrogacy laws and the practice is one largely regulated by local professionals. There are also certain states — like New York and New Jersey — where surrogacy contracts are unenforceable and a surrogate cannot be compensated for her services.
Before you begin a surrogacy journey with a certain surrogate, you should speak with a local surrogacy attorney in your state and in your surrogate’s state to determine what the laws are in your area.
2. Do I have to pay a surrogate for her services?
While there are no laws saying a surrogate must be paid, it is certainly recommended by surrogacy professionals and surrogacy attorneys. Surrogacy is a complicated process and will require a great deal of time, energy and sacrifice from a surrogate. If she is not appropriately compensated for her services, she may develop feelings of vulnerability and being taken advantage of. Intended parents may also feel incredibly in debt and feel guilt in never being able to pay her back for what she has done for them.
Regardless of whether you pay a surrogate a base compensation, you will always need to pay for all of her medical and pregnancy expenses. Surrogacy should always be free to a prospective surrogate, and your surrogacy attorney will make sure the proper financial compensation is detailed in your surrogacy contract.
3. How do I know a surrogate won’t take my baby after birth?
If you are completing a gestational surrogacy, your surrogate will not be biologically related to the child she carries — which means she will have no inherent maternal rights to the baby. That being said, the laws regarding a surrogate’s rights to a baby she bears vary by state, and the steps you will need to take to terminate any such rights will be unique to your situation.
If you choose a traditional surrogacy where the surrogate is related to your baby, there will be more legal risk involved. Therefore, the safest path for intended parents asking this question is gestational surrogacy.
Again, your assisted reproductive technology attorney will work with your surrogate, her doctor and the hospital where she delivers to ensure that you are the one who can legally take custody of your child after birth.
4. How do I protect my parental rights and have my name placed on the birth certificate?
There are a few methods used to help intended parents establish parental rights: a pre- or post-birth order, a parentage order after birth, or an adoption. Which one you use will depend upon several factors, like your genetic relationship to your child, your marital status and your state’s laws. A surrogacy attorney will help you determine which path is best for you, complete the legal steps to protect your rights and obtain a new birth certificate with your name on it.
5. Why do my surrogate and I have to have separate lawyers?
Because surrogacy is complicated, each party to a surrogacy contract must have separate legal representation. This way, you can ensure that your rights and interests are being properly protected by someone who has no stake in the other party’s rights. After all, a lawyer who is trying to obtain the best surrogate compensation possible for a prospective surrogate cannot simultaneously try to limit expenses on the intended parents’ part.
Some state laws even require that surrogacy contracts be drafted with two separate lawyers to be finalized, and many surrogacy professionals will not work with intended parents and surrogates who improperly draft their surrogacy contract.
6. Why do we need a lawyer to draft a surrogacy contract?
You may wonder why you can’t just use an online template to create a surrogacy contract. Because every surrogacy is so different, a “one-size-fits-all” approach will undoubtedly leave you and your surrogate open to legal risks. Only a surrogacy attorney knows all of the potential risks and liabilities of the surrogacy process and can protect you and your surrogate from them.
In addition, because state laws and personal situations vary so greatly and determine what your surrogacy process is like, you cannot trust a generic contract to give you the legal safety you need should something unexpected occur.
7. Can’t a surrogate just use our health insurance?
Unfortunately, because you are not the one who is pregnant, intended parents’ health insurance policies will rarely cover any medical treatment to your surrogate. You may have coverage for IVF and other fertility treatments, but actual pregnancy costs will either be covered by the surrogate’s health insurance or an additional insurance policy that you purchase specifically for the surrogacy.
Your surrogacy specialist and attorney will help review the terms of the surrogate’s insurance to determine whether her policy has surrogacy exclusions and, if so, help you find an appropriate additional policy for your needs. Again, this will be determined in your legal contract.
Have more questions for a surrogacy attorney or questions about the surrogacy process in general? Contact American Surrogacy’s specialists at 1-800-875-2229(BABY) to learn more or be referred to a trusted ART attorney near you.