Although surrogacy and assisted reproduction are advancing at a rate that makes parenthood possible for many couples struggling with infertility, the laws protecting those involved in these processes are often not as efficiently updated. Because of this, intended parents who have a child with the help of a gestational carrier will need to take additional steps to protect their legal parentage in surrogacy.
At this point, you might be wondering, “What is parentage?” In surrogacy, the definition of parentage is less about who is genetically connected to the child and more about who has legal parental rights to the baby.
While each state’s laws differ, many states will use the concept of “marital presumption” when a child is born: The surrogate will be assumed to be the legal mother of the baby and, if she’s married, her husband will be assumed to be the legal father. Obviously, this isn’t the case in surrogacy, so it’s important that you know as soon as possible what you’ll need to do to establish your parental rights. Your surrogacy specialist and surrogacy lawyer will play instrumental roles in making this happen. Remember that this guide is not intended as a substitute for legal advice, so contact your attorney if you have any questions.
Typically, there are three ways to establish proof of parentage in surrogacy: a pre-birth order, a post-birth order or an adoption after birth.
Filing a Pre-Birth Order
Some state laws will allow you to establish parentage of your child before they are even born. This is known as a “pre-birth order.”
Usually, to file a pre-birth order, your lawyer will gather certain documents. You and the surrogate will usually sign statements of parentage for the unborn baby, and your doctor may have to complete an affidavit stating he or she completed the embryo transfer for the surrogate’s pregnancy. Your lawyer may also need to file additional social documents and evaluations prepared during the surrogacy process. The pre-birth order is usually filed around the seventh month of pregnancy, although the process can start as early as the fourth month (depending on state laws).
By completing a pre-birth court order, not only will you protect your legal rights to your child, but it will also help your hospital process move smoothly by:
- Requiring you to be listed on the child’s birth certificate
- Allowing you to make medical decisions for your baby
- Helping to resolve insurance coverage issues
- Allowing your baby to be discharged from the hospital to you
American Surrogacy will work closely with you and your lawyer to investigate how to get a pre-birth order based on your state’s laws. It’s important to start the process as early as possible to ensure that all the necessary legalities are taken care of.
Why a Post-Birth Order May Be Necessary
Not all states allow you to file a pre-birth order early; some require you to wait until after the baby is born. These, appropriately, are known as “post-birth orders,” and they’re usually filed three to five days after the birth of the baby.
However, even in cases where you file a pre-birth order, it will not become effective until after the baby is born — just like a post-birth order. The processes for both orders are similar, so the differences between pre-birth and post-birth orders (besides the time of filing) are rather insignificant.
Completing an Adoption After Birth
In some situations, some states may not allow you to complete either a pre-birth order or post-birth order, which leaves you with the last way to establish parentage: an adoption. It may seem contradictory to “adopt” your own child, but look at this instead as a “parental confirmation hearing.” In this situation, everyone knows you’re the parent of your child, but the legal system requires you take certain steps to legally protect your rights. While this is a very important and necessary step to take, it is essentially a formality.
How you complete an adoption after birth will vary based on your marital status and whether you used donated gametes to complete your embryo. Typically, you will need to attend an adoption hearing in court for whatever process you go through (your surrogacy lawyer will help prepare you for this court appearance).
Your lawyer and surrogacy specialist will help you determine what course of action you need to take, but here are some ways you might establish your parentage:
- Stepparent Adoption: In many cases, one biological parent will be able to name themselves on the birth certificate as the biological mother or father. Therefore, if you’re married, the other partner can complete a stepparent adoption after birth. These adoptions are typically used in cases involving a married male same-sex couple or heterosexual couple using an egg or sperm donor.
- Second-Parent Adoption: Similar in process to a stepparent adoption, second-parent adoptions are used in cases with unmarried partners, typically when one biological parent has already been named on the child’s birth certificate.
- Single-Parent Adoption: If you’re a single person who has used surrogacy, you may need to complete a single-parent adoption. Single men can usually name themselves on the birth certificate when the baby is born, but single women who don’t carry their child may have to go through this process. However, you may not have to complete all of the steps usually associated with a single-parent adoption.
When it comes to establishing parentage in surrogacy, your post-birth adoption may be slightly different from an adoption by non-biologically related parents. Certain requirements, like the home study and post-placement assessment, may be waived because of your established relationship with your child. As always, it’s important to speak with your lawyer about your own situation and the state laws you have to follow with these processes.
American Surrogacy will also be with you every step of the way as you discover what parentage orders may be necessary for your surrogacy, and we can work with your lawyer to make those happen.
No matter what the laws on establishing parentage in surrogacy are like in your state, you can be assured that American Surrogacy will work tirelessly with your surrogacy lawyer to protect your rights as the legal parents of your child and secure a parental order. Surrogacy has a number of complex processes and laws, and it’s critically important for you to have an understanding of what’s involved. To learn more or begin your surrogacy journey, contact us today.