If you’re considering becoming a surrogate, it’s important that you understand the legal process of surrogacy, including the steps intended parents take to establish parentage of their baby.
The more you understand your and the intended parents’ legal rights and responsibilities during this journey, the smoother your surrogacy process will go.
In general, establishing parental rights in surrogacy is completed by an intended parents’ attorney in one of three ways:
- Pre-birth orders
- Post-birth orders
You can contact a surrogacy specialist today if you’re ready to start the surrogacy process. But, if you want to learn more about how intended parents establish parentage, continue reading.
Why the Parentage Act May be Important to Your Surrogacy
In 1973, the Uniform Parentage Act was established as the legal process to establish parentage of all children born. Back then, it defined parentage by stating that any woman who gave birth to a child would legally be their mother.
In 2002, the act was updated with new articles, one of which addressed gestational agreements. This update:
- Described what a gestational surrogacy is and how the woman carrying the baby is not the legal mother of the child
- Laid out the legal requirements needed before starting a gestational surrogacy (like a legal contract, for example)
However, this article is optional to states that enacted the Uniform Parentage Act. So, it may or may not be a legal provision where you live.
If it is not enacted in your state, you may be deemed the legal parent of the child you give birth to — even though you are not genetically related to them. This can cause legal complications in the surrogacy process if not remedied with legal action.
How Surrogacy Attorneys Establish Parentage
Because state laws will often not automatically rescind any inherent parental rights you have as the woman giving birth in a surrogacy, attorneys have developed several different processes to establish the legal parentage of the intended parents.
You may wonder, “Do surrogate mothers have parental rights,” or “who is the legal parent of a surrogate child?” But, it’s essential to know that when you become a surrogate, you will not be parenterally responsible for the baby you carry — your surrogacy attorney will ensure this.
The legal process the intended parents pursue to establish parentage of their child will vary based on their circumstances. Your attorney will work closely with you and them to complete any necessary legal steps.
Step 1: Pre-Birth Orders
A pre-birth order in surrogacy is a legal process that establishes parentage of the intended parents before the baby is born. The availability of pre-birth orders will vary by state, as different states have different surrogacy laws.
To complete a pre-birth order, a surrogacy attorney will gather documentation, like:
- A fertility doctor’s affidavit
- Your signed statement that you are not the genetic mother of the child (which can usually only be completed after you give birth)
These documents will usually be filed in your third trimester of pregnancy and make establishing parental rights in surrogacy easier by allowing:
- The hospital to list the intended parents on the birth certificate
- The intended parents to make medical decisions for their baby
- Insurance to resolve coverage issues
- The child to be discharged to the intended parents
Because the legal requirements for a pre-birth order in surrogacy will vary by state laws, you and your surrogacy attorney must work with the intended parents as early as possible to prepare for any necessary steps. Usually, the possibility of a pre-birth order is determined while the surrogacy attorneys are drafting the surrogacy contract.
Step 2: Post-Birth Orders
A post-birth order is similar to a pre-birth order in surrogacy. But, this paperwork cannot be filed until after a surrogate has given birth to the intended parents’ baby.
States that don’t allow a pre-birth order will typically allow for a post-birth parentage order instead. But, only a local surrogacy attorney can determine which legal steps are needed for establishing parental rights in surrogacy.
Step 3: Adoptions
Sometimes, both intended parents are not able to be genetically related to their child. This could be the case with a:
- Single parent
- A gay male couple
- Other intended parents using a donor gamete
For these intended parents, state laws may require the non-genetically related parent to complete a stepparent adoption or a full adoption after their child is born. These adoption processes may be simplified because of an intended parent’s relationship with their spouse, but an attorney will still be necessary.
If the intended parents have to complete an adoption, you may need to sign additional paperwork to give your consent, even though you are not genetically related to the child.
How Legal Steps May Differ in a Traditional Surrogacy
So far, all information in this guide assumes that the surrogate and intended parents are completing a gestational surrogacy. This means that the surrogate is not genetically related to the child and has no legitimate inherent parental rights.
But, if you choose to become a traditional surrogate, you will be the genetic mother of the child you carry. This brings additional legal complications, and you and your surrogacy attorney may need to take additional steps to terminate your parental rights.
Because of these legal complications (and the potential for emotional complications, as well), it’s advised that surrogates pursue gestational surrogacy instead of traditional surrogacy. In fact, traditional surrogacy has been outlawed in nearly every state and is no longer practiced by reputable surrogacy professionals.
Next Steps in Your Surrogacy Journey
Whichever surrogacy path you choose to pursue, it’s vital that you understand the steps that may be required for establishing parental rights in surrogacy with the intended parents you’re working with.
Whether or not you’ve found intended parents, you can always contact a surrogacy professional to learn more about becoming a surrogate.