Surrogate Mothers

Legal Concerns for Surrogacy

Disclaimer: Surrogate Mothers, Inc. is not a law firm nor is the content below a substitute for legal advice. Please seek independent counsel with a lawyer in your area for questions regarding the legality of surrogacy in your state.

Surrogacy laws vary from state to state. The laws are overwhelming for families trying to understand how surrogacy works and whether or not it is the right option for them. Here’s a guide to some of the surrogacy laws across the U.S.

Where Surrogacy is Legal

Compensated surrogacy is permitted in many states without issue, including California, Nevada, Oregon, Connecticut, Rhode Island, New Hampshire, Delaware, and Maine. Other states, including Washington D.C., Louisiana, Michigan, New York, New Jersey and Washington do not permit compensated surrogacy, but “compassionate surrogacy” where the surrogate does not charge a fee for her services (a term that SMI doesn’t care for, since all surrogacy is compassionate), is legal.. Other states are somewhere in between, and surrogacy may or may not be permitted depending on the circumstances. Additionally, there may be multiple legal issues that must be addressed prior to proceeding with surrogacy.

What a Surrogacy Contract Is

A surrogacy contract is necessary for commercial surrogacy and frankly, any surrogacy. A surrogacy contract protects all parties involved and sets the tone for how the surrogacy will proceed.

A contract can lay out expectations that the intended parents have for the surrogate mother during her pregnancy. These include refraining from certain activities and checking in with the intended parents or her doctor at regular intervals. The contract also provides protections for the surrogate mother in specifying the care she is to receive during the pregnancy and how that will be compensated.

How Parental Rights are Transferred

Parental rights are transferred from the surrogate mother to the intended parents in every surrogacy. However, how that is done depends greatly on the type of surrogacy involved.

  • Artificial Insemination — Before the child is born, an attorney requests a pre-birth court order that names the husband or single man as the father of the child. The surrogate then signs consent forms that end her parental rights and the wife or partner of the child’s father may then legally adopt the child.
  • Embryo Transfer — With an embryo transfer, the same process is followed and an attorney requests a pre-birth court order. However, in this case the order specifies both of the biological parents’ names shall go on the birth certificate. Adoption is a non-issue, but the surrogate mother may still sign consent forms to revoke her parental rights.
  • Embryo Transfer with Egg Donation — A pre-birth court order is obtained that names the husband or single man as the father of the child, and the wife or partner can proceed with an adoption later. However, in international countries where surrogacy is not recognized, the surrogate mother may remain on the child’s birth certificate.

At Surrogate Mothers, Inc., we’re committed to helping families grow. We can help you find the best path to meet your family’s goals. We strongly encourage you to reach out to an attorney in your area who is versed in surrogacy laws in your state, so you can become familiar with the legal issues you may be confronted with as you pursue surrogacy. Contact us today for a consultation to learn more.


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