Although there are no laws specifically addressing surrogacy in Missouri, Missouri is actually a very surrogacy-friendly state. So, if you’re considering a surrogacy in Missouri, know that it is entirely possible for you, as long as you fully understand the process involved and work closely with an experienced professional to navigate the state’s specific surrogacy process.
In Missouri, a process has evolved, using existing law, to allow intended parents to move forward with surrogacy agreements and obtain parentage judgments and birth certificates listing only the intended parents — all of the steps you need to take for a successful surrogacy. Intended parents from all over the world are finding surrogates in Missouri, and babies are being born from these surrogacy arrangements.
Like in most states, the Missouri surrogacy legal process involves two separate stages: the agreement stage (where the parties sign a surrogacy contract) and the parentage stage (where intended parents protect their parental rights to a child born via surrogacy). Working with an experienced lawyer will help ensure that you follow all the necessary surrogacy laws in Missouri but, to help you understand the process better, lawyer Tim Schlesinger answers some of your common Missouri surrogacy questions:
Q: Is surrogacy legal in Missouri?
A: Yes. While there is no specific statute or case law addressing surrogacy in Missouri, surrogacy arrangements are agreements between parties that are enforced by Missouri courts, through a routine legal process developed by experienced surrogacy attorneys.
Q: Is compensated surrogacy legal in Missouri?
A: Yes. However, care must be taken in the surrogacy agreement and in the parentage process that follows to make certain that the intended parents are not paying the surrogate (gestational carrier) for a child. Intended parents are paying the gestational carrier for her participation in the process, the risk she is taking to get pregnant and be pregnant, caring for the fetus while pregnant, and for her time and trouble being pregnant.
Q: Is traditional surrogacy legal in Missouri?
A: As far as we know today, yes. However, no traditional surrogacy arrangement has ever been challenged in the Missouri courts, so this can’t be stated with certainty. For many legal reasons, traditional surrogacy is not preferred and creates a significant legal risk for all parties involved.
Q: What does a surrogacy agreement in Missouri cover, and how does the legal process work?
A: In every surrogacy, a comprehensive written agreement must be made between the intended parents and the surrogate (and the surrogate’s husband, if the surrogate is married). This agreement will regulate the relationship among the parties, including the financial relationship, the behavior of the surrogate during pregnancy, and any contacts among the parties after the child is born.
The intended parents need to be represented by an attorney, and the gestational carrier (and her husband, if applicable) needs to be represented by a separate, independent attorney. Entering into a surrogacy agreement is a joyous but very serious matter, and both sides must be independently represented.
When a gestational carrier is matched with an intended parent or parents through an agency, the agency helps to guide the parties to a framework of agreement on all of the issues. The attorneys get involved to advise their clients about how to make it all work legally, and to draft, finalize and formalize the agreement. When all of the language is agreed upon, and the contract is signed by the parties, then the attorneys send a letter to the fertility clinic (usually referred to as a “clearance letter”) notifying the clinic that the parties have signed a written agreement which provides that the parties are agreeing to undergo the surrogacy procedure and that any child born from the procedure is the child of the intended parents.
Q: Are surrogacy contracts (whether compensated or altruistic) enforceable in Missouri?
A: Yes. Although there is no specific statute or case law addressing the enforceability of specific provisions of surrogacy contracts in Missouri, the basic parentage facts of a surrogacy contract are routinely enforced by Missouri courts.
Q: What are the surrogacy laws in Missouri on parentage orders?
A: A parentage action is filed with the court, with the purpose to obtain a judgment that says the intended parents are the only lawful parents of the child. The parentage action also declares that the gestational carrier and the gestational carrier’s husband are not parents of the child.
There are no pre-birth orders in Missouri. Instead, intended parents must complete a post-birth parentage order.
The parentage action should be filed during the second trimester of the surrogate’s pregnancy, just in case the baby is born early. All of the affidavits and other documents that are part of the parentage action should also be filed before the baby is born, so that as soon as the baby is born a judgment can be obtained. It is not uncommon for a judgment to be obtained within 1–3 days after the baby is born. The judgment is then sent to the Missouri Bureau of Vital Records, which issues a birth certificate listing only the intended parents as parents.
Once a valid final judgment is obtained, the intended parents are the parents, legally and for all purposes. They have the same rights and obligations as parents who have a child in the traditional fashion.
Q: Are there any particular laws for parents outside the U.S. who complete a surrogacy in Missouri?
A: When the intended parents do not live in the U.S., it is important to also engage an attorney in the intended parents’ home country, so that country’s rules are followed in terms of obtaining proper verification of the judgment and birth certificate so that a passport can be issued for the baby and the baby will receive citizenship from the home country.
Q: When do intended parents need to complete an adoption after birth?
A: The vast majority of intended parents who have a child as the result of a surrogacy arrangement do not need to go through an adoption. Only the following scenarios require an adoption after the baby is born:
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a married heterosexual couple who have no genetic relationship to the child (through embryo donation)
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an unmarried couple (same-sex or heterosexual) in which one of the intended parents is not genetically related to the child — the unrelated intended parent will have to complete a second-parent adoption
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a single intended parent who is not genetically related to the child
Q: Does Missouri allow second-parent adoptions? Who would need to complete a second-parent adoption vs. a stepparent adoption (if applicable)?
A: Yes. A second-parent adoption would be necessary if the intended parents are unmarried and one of the intended parents is not genetically related to the child.
Q: If intended parents cannot complete a second-parent adoption, how can unmarried non-biological intended parents protect their parental rights?
A: I have not had a scenario in which the unrelated intended parent could not complete a second-parent adoption. If a second-parent adoption cannot be completed, the parties may be able to protect their parental rights by executing a co-parenting agreement (preferably signed by the intended parents prior to the conception of the child), drafted to reflect current Missouri law. That is the best way to protect the rights of the non-biological parent.
Q: What happens in cases where intended parents use a donor egg, sperm or embryo?
A: This depends on the marital status of the parties, as outlined in the answers above. If intended parents are using a donated egg or sperm, and if they are married, they will go through the parentage process described above. If intended parent or parents in a surrogacy are using a donated embryo, then they will have to adopt the child. If the intended parents are not married, and if they are using a donated egg or sperm, the non-biological parent will most likely have to adopt.
Q: Are there any additional laws impacting same-sex surrogacy in Missouri?
A: No. Since the U.S. Supreme Court decision in 2015 made same-sex marriage legal in all U.S. jurisdictions, same-sex couples are treated, for surrogacy purposes, the same as heterosexual couples.
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Despite the lack of specific surrogacy laws, there is a well-developed process used by experienced surrogacy attorneys in Missouri that enables intended parents to reach their surrogacy goals. If you’re interested in a surrogacy in Missouri, please reach out to our surrogacy specialists at 1-800-875-2229.
To close, attorney Tim Schlesinger offers some words of advice: “Think about what is at stake. Don’t take shortcuts. Good luck in your journey.”
State law information provided by:
Tim Schlesinger
Paule, Camazine & Blumenthal, P.C.
314-244-3661
American Surrogacy does not offer the information in this article as strict legal advice. It is the opinion of the attorney at the time it was written. For updated legal advice on surrogacy laws in Missouri, please contact an experienced surrogacy attorney before moving forward.