If you’re considering surrogacy in Ohio, you should know that, for all intents and purposes, it is considered a surrogacy-friendly state. While there are no surrogacy laws in Ohio that specifically address this process, courts and judges in the state have determined that surrogacy is indeed legal in Ohio and, therefore, have created a safe process for all those looking to complete an Ohio surrogacy.
What is one of the most important things to know about surrogacy in Ohio? It’s that a properly drafted gestational surrogacy agreement will be enforced in an Ohio surrogacy. Intended parents have been successful in obtaining a birth certificate with their names listed as parents in several different circumstances. Those who have embryos created from their own gametes should be able to obtain an order of parentage, as well as intended parents who use donated gametes. Same-sex intended parents are also able to have both parents designated as parents on the child’s birth certificate.
If you’re considering a surrogacy in Ohio, it’s important that you work with an experienced surrogacy lawyer in Ohio to properly follow the state laws and processes. To help you better understand the surrogacy laws in Ohio, check out the answers to some of your questions below, provided by surrogacy attorney A. Patrick Hamilton.
Q: Is surrogacy legal in Ohio?
A: Yes! Ohio has no statute which specifically addresses surrogacy. Fortunately, the courts have determined that surrogacy contracts are not against public policy. This means that if you have a gestational surrogacy agreement, the courts in Ohio will enforce that agreement.
Q: Is compensated surrogacy legal in Ohio?
A: Yes! Compensation may be included as part of a gestational surrogacy agreement in Ohio. The compensation is paid for the service of gestating the child and not as payment for terminating a parental relationship.
Q: Is traditional surrogacy legal in Ohio?
A: “Traditional surrogacy” means that the surrogate is the biological mother of the child. This arrangement is not prohibited by statute, but there are many issues to consider.
First, there is the concern that the contract could be void if it appears that the surrogate is being compensated to surrender her parental rights. Second, the process involves an acknowledgment of parentage for the intended father and a stepparent adoption for the intended mother.
Traditional surrogacy presents several areas of potential conflict and results in litigation more often than other surrogacy arrangements. Be careful with this kind of surrogacy arrangement.
Q: What does a surrogacy agreement in Ohio cover?
A: A gestational surrogacy agreement should address as many contingencies as possible. The agreement must provide a process for the intended parents to become the legal parents of the child and must require the gestational carrier and gestational carrier’s husband to relinquish all parental rights. Surrogacy fees must be spelled out and clear. An escrow agent may be engaged to help administer the distribution of fees and costs.
Invasive procedures or the carrying more than one fetus commonly result in additional compensation for the surrogate. Health care costs and health insurance arrangements must be specifically addressed. Lost wages, child care and housekeeping for the surrogate during medically necessary bedrest or post-partum recovery must be considered. A term life insurance policy for the surrogate should be part of the planning. Other expenses such as assistance with maternity clothes and travel expenses for necessary medical appointments should be included.
Q: How does the legal process work in Ohio?
A. You should consult with an Ohio surrogacy attorney before the gestational surrogacy agreement is drafted. Legal planning will be necessary from the start. Establishing parentage may become more difficult if you have not addressed the jurisdictional and venue considerations in your gestational surrogacy agreement. After the agreement is signed by all the parties, a legal clearance letter should be sent to the clinic facilitating the embryo transfer.
You should contact your attorney at the end of the first trimester to talk about the parentage process. Ohio county courts are divided on how parentage may be established. Some county courts will grant a pre-birth order, while other county courts will allow you to file a declaratory judgment of parentage immediately after the child is born.
A pre-birth order may be obtained any time after confirmation of pregnancy. Your attorney will explain the process and provide you with the necessary documentation. The pre-birth order should allow the hospital to arrange for an original birth certificate which correctly lists the intended parents as legal parents. Ask your attorney if there are any other options if the county court with proper venue will not issue a pre-birth order.
A declaratory judgment of parentage may be issued immediately after the child is born. Your attorney will begin the paperwork before the child is born. Most courts issue a declaratory order of parentage promptly to avoid confusion over birth records. The hospital is permitted to wait 10 days before sending in the paperwork for a new birth certificate. This should give the attorney enough time to submit the proper orders to the hospital prior to the creation of a new birth certificate.
Q: Are surrogacy contracts (whether compensated or altruistic) enforceable in Ohio?
A: Yes! An altruistic gestational carrier agreement should include some form of “consideration” or nominal compensation to comply with basic contract law.
Q: What are the surrogacy laws in Ohio concerning parentage orders?
A: Parentage may be established in the county where the child, the child’s mother or the child’s alleged father resides “or is found.” This means that the case may be filed in the county where the child is born. As mentioned above, intended parents may file a declaratory judgment of parentage or seek a pre-birth order in the county with proper venue.
Q: Are there any particular laws for parents outside the U.S. who complete a surrogacy in Ohio?
A: No. In some cases specific language needs to be included in the pre-birth order or the declaratory order of parentage to satisfy the requirements of the intended parents’ home country. Intended parents outside the United States should retain counsel in their home country and should be prepared to address with counsel in both countries what steps they will need to take to obtain proper orders and secure a passport. A long-form birth certificate is usually required before a passport will be issued.
Parents outside the U.S. should also inquire about whether they will need an Apostille copy of the birth certificate, the pre-birth order or the declaratory order of parentage. Please note that not all countries will accept a pre-birth order.
Q: When do intended parents need to complete an adoption after birth?
A: When intended parents have a properly executed gestational surrogacy agreement, no adoption should be necessary. In a traditional surrogacy, the intended father will complete an acknowledgment of parentage, and then he will be included on the original birth certificate. The intended mother will need to complete a stepparent adoption with the consent of her husband and the surrogate.
Q: Does Ohio allow second-parent adoptions? Who would need to complete a second-parent adoption vs. a stepparent adoption (if applicable)?
A: Ohio does not allow second-parent adoptions. A stepparent adoption should not be necessary when the married parents execute a gestational surrogacy agreement.
Q: If intended parents cannot complete a second parent adoption, how can unmarried non-biological intended parents protect their parental rights?
A: One unmarried non-biological parent should establish parentage through the gestational surrogacy agreement. The non-biological intended parent who does not establish parentage through the gestational surrogacy agreement will need to enter into a co-custody agreement with the intended parent who is able to establish parentage through the gestational surrogacy agreement. This will not result in a birth certificate which includes the names of both intended parents.
Q: What happens in cases where intended parents use a donor egg, sperm or embryo?
A: When donor egg, sperm or embryos are used, it is customary for the fertility clinic to obtain a release, agreement or waiver of parentage before the transfer occurs. In Ohio, a copy of the agreement should be provided to the court who will issue the pre-birth order or declaratory judgment of parentage. A blank copy of the form should be submitted if the donor is anonymous. Irrespective of the source of the gametes, the intended parents should be listed on the birth certificate as the legal parents if they have a gestational surrogacy agreement.
Q: Are there any additional laws impacting same-sex surrogacy in Ohio?
A: No, not currently. It is important to note that laws are always changing so stay in touch with your Ohio surrogacy attorney to make sure you are aware of any changes in the statutory law or case law.
If you’re considering a surrogacy in Ohio or becoming a surrogate in Ohio, it is definitely a legal and possible option for you. As with all surrogacies, it’s important to work closely with an experienced surrogacy lawyer to protect the rights of all involved, a trusted fertility clinic to complete the medical process and a knowledgeable surrogacy agency to obtain case-management services.
If you’re interested in Ohio surrogacy, the surrogacy specialists at American Surrogacy can help you start the process today. For more information, please call our offices anytime at 1-800-875-2229.
State law information provided by:
A. Patrick Hamilton
While we’ve made every effort to provide you updated information on surrogacy in Ohio, remember that laws and restrictions are always subject to change. This information is not intended to be used as legal advice; please contact a local Ohio surrogacy attorney to learn more about the current state of surrogacy in Ohio.