When you choose to become a surrogate, you know that you will be carrying a baby for someone else. You will likely have no genetic or emotional connection to the baby, and you’ll be thrilled to give him or her to the intended parents once you give birth.
However, because the surrogacy process is still a new one, the legal process of giving a baby to his or her intended parents may not be as easy as handing them over at the hospital. There may be a requirement for a parental order in your surrogacy journey — but, fortunately, the responsibility of that legal process will fall on intended parents, not on you as a surrogate.
If you’re considering becoming a surrogate, it’s important that you understand the full legal process of surrogacy, including any steps taken by intended parents 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 proceed.
Why the Parentage Act May be Important to Your Surrogacy
In 1973, the Uniform Parentage Act was established as a legal process of determining parentage of all children born. Back then, it established the definition of parentage by stating that any woman who gave birth to a child would legally be his or her mother. While this was a valid statement before assisted reproductive methods became more common, this is obviously not the case in a gestational surrogacy.
In 2002, the act was updated with new articles, one of which addressed gestational agreements. It described what a gestational surrogacy is and how the woman carrying the baby is not the legal mother of the child. It also laid out the legal requirements needed before starting a gestational surrogacy (like a legal contract, for example).
However, the 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, you may be deemed the legal parent of the child you give birth to — even though you are not genetically related to him or her. Understandably, this can cause legal complications in the surrogacy process if not remedied with legal action.
How Surrogacy Attorneys Establish Parentage
A surrogate usually only carries a child for someone else because she and her spouse have completed their family — and have no desire to have another child. Because state laws will often not automatically rescind any inherent parental rights you have as the woman giving birth, surrogacy attorneys have developed several different processes to establish legal parentage of the intended parents.
When you become a surrogate, you will not be parentally responsible for the baby that you carry — your surrogacy attorney will ensure this. Which legal process the intended parents pursue to establish parentage of their child will vary based on their individual circumstances, and your attorney will work closely with you and them to complete any necessary legal steps.
In general, there are three ways that an intended parent can establish legal parentage of their baby born via surrogacy:
A pre-birth order in surrogacy is exactly what the name suggests: a legal process that is enacted to establish parentage of the intended parents before the baby is even 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 certain documentation, like a fertility doctor’s affidavit and 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 will provide for certain issues to be cleared before your delivery, like:
- Requiring the hospital to list the intended parents on the birth certificate
- Allowing the intended parents to make medical decisions for their baby
- Resolving insurance coverage issues
- Allowing 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, it’s important that you and your surrogacy attorney work with the intended parents from as early as possible to prepare for any necessary steps to be taken. Usually, the possibility of a pre-birth order is determined while the surrogacy attorneys are drafting the surrogacy contract.
A post-birth order is very similar to a pre-birth order in surrogacy — except that the 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; however, only a local surrogacy attorney can determine which legal steps are needed to establish parentage in your personal surrogacy journey.
Sometimes, both intended parents are not able to be genetically related to their child — for example, in the case of a single parent, gay male couple or 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 has been born. These adoption processes may be simplified because of the relationship an intended parent has 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
The descriptions of the parental orders above have all assumed that the surrogate and intended parents are completing a gestational surrogacy — in which the surrogate is not genetically related to the child and, therefore, has no legitimate inherent parental rights.
However, if you choose to become a traditional surrogate, you will be the genetic mother of the child you carry. This brings with it 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 a gestational surrogacy instead of a traditional surrogacy.
However, whichever surrogacy path you choose to pursue, it’s equally important that you understand the steps that may be required for your intended parents to establish parentage with their specific situation and circumstances. Whether or not you’ve found intended parents yet, you can always contact a surrogacy professional to learn more about the legal process of intended parents establishing their parentage or more about the process of becoming a surrogate overall.