Surrogacy Legal Process: Step-by-Step

A Guide for Intended Parents

Surrogacy laws can be complex, but here, we'll walk you through the surrogacy legal process that intended parents will need to complete with their attorney.

Understandably, hopeful intended parents want to know what the often-complex legal process of surrogacy entails. You likely want to be as prepared as possible. But this can be tricky, because surrogacy laws vary from one state to the next, and can also vary depending on your situation.

That being said, we’ve broken down how surrogacy and the law typically affects intended parents, and the steps you’ll need to take to legally protect everyone involved. Keep in mind that nothing you read online can take the place of a qualified surrogacy attorney, and nothing in this article should be taken as legal advice. The team at American Surrogacy is also always available to answer your questions and help you find the legal representation you need. To get started today, contact us online or at 1-800-875-BABY(2229).

Step 1: Contact your surrogacy attorney

Again — every case is unique. Variables like where you and your surrogate live, the type of surrogacy you want to pursue, your genetic relationship to your child and more will all determine elements of your surrogacy legal process.

So it’s important that your first step is to contact a professional for a consultation.

Already know a fertility attorney who has experience with surrogacy law in your state? Give them a call! We can coordinate with them to help you and your family through this process as smoothly as possible. Need a recommendation for a good surrogacy attorney? We’ll refer you to a few we trust, or tell you what to look for.

Step 2: Understand your state’s surrogacy laws

We know: The state-specific surrogate laws can seem a little overwhelming, and everyone wants to know two things: “Is surrogacy legal where I live? Where is surrogacy legal?”

Your American Surrogacy specialist and your attorney will be able to walk you through your state’s specific laws on surrogacy, as well as any relevant case laws and legal precedents and established legal processes. The surrogacy legislation of your state will determine how next to proceed.

Some states in the U.S. are more “surrogacy-friendly” than others, to be sure, but gestational surrogacy is probably still an option for you. If you live in a state that makes surrogacy more difficult, we’ll help you find a surrogate who lives in a more legally-welcoming state. We’ll be here to help you find the safest legal options for your future family, so if you’re unsure whether or not your state may pose legal issues with surrogacy, contact our specialists to discuss your situation.

Step 3: Establish a donor contract, if you’re working with an egg and/or sperm donor for IVF

Not all intended parents will use an egg or sperm donor to help create their embryos. If you do, however, a donor contract is standard procedure.

These contracts primarily confirm the donor has no intention to claim legal parental rights over any child born from their gamete donation, but it can also include other details.

If you choose your donor through a cryobank or similar fertility professional, the donor may have signed a similar contract prior to donating, but it’s good to have your attorney review this contract to ensure it reflects your individual wishes.

If you choose your donor through personal connections (i.e. a friend or family member donated their egg or sperm), you’ll need to have your attorney draft a donor contract for you. This type of contract is common and important, even if you know and trust your future child’s donor.

Step 4: Establish a surrogacy contract

This is potentially the most important step of the surrogacy legal process. The creation of your surrogacy contract takes place after you’ve been matched with a surrogate and before you take any medical steps together.

The people involved in this stage will include: you and your spouse or partner (if applicable), the surrogate and her spouse or partner (if applicable), and your respective attorneys (you and your surrogate will each need your own legal representation). Spouses or committed partners of surrogates will need to agree to the terms of the contract because they must adhere to some of the medical screening processes, confirm that they don’t intend to claim parental rights to your child and more.

Your surrogacy contract will cover a wide range of topics that are often sensitive in nature. It’s important to talk about these things with your surrogate, so you all know that you feel the same way about things like the number of attempted embryo transfers, what would happen in the event of an unforeseen medical complication, selective reduction and more.

This contract is where you’ll detail finances, social requirements and all those “what-if” scenarios. Your contract will serve as the roadmap for you and your surrogate throughout your journey together, so take your time and talk to one another openly and honestly as you put your wishes on paper.

Step 5: Complete a pre-birth order, if possible

A pre-birth order allows the baby to be directly released from the hospital to the intended parents. This documentation makes things much easier for intended parents, but not all states’ rules and regulations of surrogacy permit pre-birth orders in every situation.

While the requirements to be granted a pre-birth order will vary from one state to the next, you’ll usually need to file paperwork that includes:

  • An affidavit from your physician that confirms the embryos were transferred to the surrogate
  • Social documents from the surrogacy process, like evaluations of the intended parents and surrogate
  • Affidavits from the surrogate and her family confirming they want the intended parents to have legal rights from the child’s birth

Your attorney will usually begin filing for a pre-birth order, if it’s available in your situation, about seven months into the surrogate’s pregnancy. Then, the surrogate and her partner will need to sign one last document once the baby is born that reaffirms she and her partner aren’t the baby’s legal parents, and you will sign a document reaffirming that you assume custody of the baby.

Again, this is the most legally simple way to ensure intended parents are granted parental rights, so whenever a pre-birth order is available, your attorney will make sure a request is submitted.

Step 6: Complete a post-birth parentage order or adoption if a pre-birth order was not an option

Some intended parents will need to complete additional legal measures to confirm their parental rights in surrogacy. This can be necessary when your state doesn’t allow pre-birth orders, so you may need to complete an adoption regardless of whether or not you’re biologically related to your child.

Your attorney will recommend the type of adoption or post-birth legal measures that are best suited to your specific situation. The adoption laws of your state will need to be observed, but if your attorney is well-versed in surrogacy legal issues, they’ll also be able to help you navigate any required adoptions.

This can be a frustrating additional legal step for some families, but it’s necessary to ensure the safety of everyone involved.

Your Legal Surrogacy Steps Will Vary

To reiterate, everyone’s legal process will look slightly different, so you should check with your attorney. Gestational surrogacy laws and traditional surrogacy laws are entirely different and separate processes, and the laws of surrogacy will be determined by the state you live in, the type of surrogacy you pursue and more.

An American Surrogacy specialist can help you connect with a reputable attorney and assess your legal situation before beginning your surrogacy journey. Contact us now at 1-800-875-BABY(2229).