Surrogate Mothers

Legal Considerations

Welcome back everyone. We hope that you continue to find these articles informative and useful! Today’s topic is also one that anyone considering surrogacy must be aware of: legal issues. We mentioned in the previous blog posts not only the need for legal representation for the drawing up of contracts but also to help with any other legal troubles that could arise. You might be asking yourself what these legal issues may be?

31 states have their own unique laws on the books regarding the legal processes and ramifications of surrogacy. In point of fact, two states Michigan, New York as well as Washington DC have actually criminalized surrogacy! Beyond that, other states have put in place various legal hurdles and obstacles that if not navigated carefully could in fact nullify contracts and fees to surrogates.

One of the largest legal issues that comes up in surrogacy cases is the issue of paternity. Many people think that once they select a surrogate, have the embryo fertilized by the father or single man, the fees have been arranged and the medical care arranged that’s it. Nine months later there’s a child. However, in some rare cases, this isn’t always the case. Most desiring parents aren’t aware of the fact that the surrogate is considered in many states to be a legal parent of the child.

How do you solve this problem if you’re attempting artificial insemination? Provided you have an experienced lawyer already in place, your attorney should go to court and obtain a court order dictating that the sperm donor, is the legal father of the child on the child’s original birth certificate. Once the child has been born, it is imperative that the surrogate mother signs documentation that terminates her parental rights leaving the father as the sole parent, or documentation that allows the wife of the couple (or the father’s partner) to adopt the child.

In the cases of embryo transfer where the child is that of the husband and his wife, a similar pre-birth court order as detailed before must be obtained. However in this instance, the names of both parents will go on the birth certificate. This negates any potential need for adoption from the surrogate since they are both already legally considered the child’s biological parent.

If you feel that embryo transfer with an egg donor is the best course for you and your partner to start a family, the process is similar to traditional surrogacy. The obtained court order will list the father as the sole biological parent (unless you are from a few different foreign countries that have made surrogacy illegal, in which case the surrogate may also be listed on the birth certificate even though she is not the biological mother). The surrogate mother is not considered a biological parent so she does not need to sign any waivers or documentation relinquishing or legal rights.

Like we said, instances where the surrogate doesn’t willingly give up parental rights or denies the parents the child are incredible rare (and, in 30 years, have never happened at SMI). If it were to happen, though, you would absolutely need an attorney to get involved immediately. Having a skilled lawyer in place could potentially save you a great deal of financial pain and emotional heartache.

That’s why we’re here. We can help make sure all of the potential legal issues are taken care of long before your child is born. If you have any questions regarding the legality of surrogacy in your state or country, please give us a call at 1-888-SURROGATE. Thank you




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