How Does Surrogacy Work Legally?

“How does surrogacy work legally?” is a question every surrogate mother and intended mom or dad should ask prior to beginning their surrogacy journey. Many matched intended parents and surrogates are excited to rush into the surrogacy journey together, but the legal aspects really need to be solidified before moving forward. Because so much is at stake for both the gestational carrier and the intended parents, it is important that no detail of the legal process is overlooked. There are many aspects that need to be coordinated effectively in order for a surrogacy journey to proceed smoothly, but one of the most important is establishing the legal details regarding surrogacy laws, the intended parents, the intended parents’ baby, and the gestational surrogate mother. These legal details are laid out in various ways, including the surrogacy contract, a pre-birth order and post-birth legal procedures. Let’s explore these important topics.

Understanding the surrogate legal paperwork

Surrogate legal paperwork, or surrogacy contracts, are imperative in every successful gestational surrogacy because they are the legal documents which will be referenced in the event of a legal dispute between the intended parents and the surrogate mom. In fact, they are so important that most Reproductive Endocrinologists, or fertility doctors, require that a surrogacy contract in place before they will perform the fertility treatments in a surrogacy. A valid and enforceable surrogacy contract primarily serves two main purposes: firstly, to detail the financial agreement and responsibilities between the intended parents and the surrogate mom and secondly, to detail the required actions and boundaries that will be in effect throughout the surrogacy journey.

Surrogacy legal process

The financial aspect of the surrogacy legal process will outlined in the surrogacy contract. The expected surrogacy expenses will be calculated and the responsible party for those expenses will be determined. In most surrogacy agreements, the gestational carrier will ask for her medical expenses be paid for by the intended parents. These costs can include co-pays, deductibles, non-covered medical procedures and medications, and medical insurance premiums. Additional requests may be made by the surrogate mommy for the intended parents to pay for the surrogate’s maternity clothing, childcare during medical appointments, special dietary needs, gas mileage to and from medical appointments, breast milk pumping, and unreimbursed time off of her normal job. Payments for situational circumstances are also detailed, such as in the event of a multiple pregnancy, unexpected medical procedures, or going on bed rest.

Typically, in addition to having expenses covered, a gestational carrier will be compensated by the intended parents for her time and effort during the surrogacy process. The surrogate mother compensation should be clearly stated in the surrogacy contract. The exact amount of the surrogate pay is different in each surrogacy, however, as how much surrogates earn can vary drastically. Many surrogate mothers are paid around $30,000 for their fee.

The surrogacy agreement will also detail how the surrogate mother and intended parents are expected to perform throughout the surrogacy. The surrogate usually agrees to refrain from using alcohol or illegal drugs, abstaining from intercourse during the fertility treatment period, attending medical appointments faithfully, providing regular updates to the intended parents, restricting her travel during the surrogacy, and behaving in a generally responsible manner. The intended parents usually agree to maintaining contact with the surrogate, if desired, and providing the payments. Details regarding how the delivery will proceed, such as where the surrogate would like to deliver the intended parents’ baby, who will be present in the delivery room, and how the post-birth process is planned are also laid out in the surrogacy agreement.

Potential legal issues with surrogacy

Ensuring that all of these details are properly outlined in a surrogacy agreement can be difficult for the intended parents and surrogate but they are critical for preventing legal issues with surrogacy. Top surrogacy agencies will have experience working with surrogacy lawyers who can draft a legally-enforceable surrogacy contract that covers any and every eventuality. If you’re not working with a surrogacy agency and are looking for help creating your surrogacy agreement, you can visit the American Academy of Assisted Reproductive Technology Attorneys for a list of experienced surrogacy attorneys here.

The pre-birth order (PBO) is a legal document which established the intended parents (who provided the egg and sperm to form the embryo the surrogate is carrying) as the legal parents of the baby. In states which recognize pre-birth orders, having this document in place before the gestational carrier delivers the baby is helpful for streamlining the baby’s discharge from the hospital to the care of the intended parents.

Although the exact procedure for filing a pre-birth order varies in each state, there are usually three key requirements the surrogacy lawyer needs to begin the process. The first is a document signed by the surrogate stating that she waives any and all rights to the intended parents’ baby once it is born. Secondly, the fertility doctor must sign an affidavit stating that the embryo(s) implanted in the surrogate’s uterus were formed from the egg and sperm from the intended mother and father. Lastly, supporting documentation regarding the surrogacy, such as preliminary examinations performed on the surrogate and intended parents. Once these items are obtained, the surrogacy attorney files the pre-birth order during the seventh month of the surrogacy pregnancy. After the baby is born, the surrogate and her partner will sign another form confirming that they are not the legal parents of the baby and the intended parents sign documentation confirming that they will be the legal parents of the child.

Surrogate mother legal rights

In situations where one or both of the intended parents are not genetically related to the baby the surrogate mother is carrying, there are more legal actions that need to be taken in order to establish legal custody of the child. The surrogate mother legal rights should be clearly stated regardless of parentage. For example, if an eggs from an egg donor were used instead of the intended mother’s egg, or if sperm from a sperm donor was used instead of the intended father’s sperm to form the embryo the surrogate carries, more legal steps are required. Additionally, the intended parents may have adopted a donated, previously frozen embryo, in which case neither the intend mother or intended father are genetically related to the baby the surrogate mother carries. According to each state’s specific laws, the intended parents will need to complete a legal adoption of the baby. A top surrogacy attorney can help the intended parents through this legal process.

Navigating the surrogacy legal waters can be confusing. Not only does each state have its own laws for gestational surrogacy, but each surrogacy contract is unique. The United States is fortunate to have a number states with clear laws regarding surrogacy, thereby ensuring the maximum amount of safety for everyone involved. Not every country is this fortunate, as some countries ban surrogacy altogether.  When asking “How does surrogacy work legally?” it is necessary for everyone’s peace of mind that the intended parents and surrogate mom all understand what they are agreeing to in advance. That way the surrogacy legal process can flow smoothly and provide them the legal protection they deserve.