Surrogacy Laws, Legislation, Legal Aspects

Surrogacy Laws

The legal framework surrounding surrogacy can seem confusing. Working with an established and experienced surrogacy agency with a legal team on staff helps you navigate through all of the laws, policy, and procedures involved in a surrogacy arrangement.

When we use the term surrogacy laws we are actually referring to overlapping areas of law that touch a surrogacy arrangement. These include, but are not limited to, the following spheres: contracts law, assisted reproductive technology (ART) law, family law,estate planning, etc.  All of these areas come into play when you enter into a surrogacy arrangement.

Because so much depends on the residence (or state of delivery) of the surrogate, where the intended parents (IPs) come from as well as the citizenship they desire for their child, the type of relationship and marital status of the IPs, and occasionally their preferences for the finalization of parental rights, it is difficult to say anything specific about surrogacy laws without taking these circumstances into account.

When you sign up with a surrogacy agency, their legal experts can inform you about your individual needs and help you decide on a personalized legal plan that is best for you.

In the meantime, let’s take a look at some of the most important things we can say about surrogacy laws as a general overview.

Surrogacy laws differ from state to state.

Because the United States has a federal system of laws—with some laws being passed at the national level and others being passed by the states—and because much of surrogacy falls under the umbrella of family law, a matter left to the states—there are different surrogacy laws and legal procedures in every state. In a surrogacy arrangement, the state where the surrogate delivers the child typically provides the legal framework for finalizing parental rights.

Some states have specific statutes passed by legislatures that either permit and regulate or prohibit surrogacy. Other states have case law established by courts that either allows surrogacy or makes it an unsafe option. And other states have no established law but have a history of successful surrogacy arrangements and favorable surrogacy policy.

The good news is that the vast majority of U.S. states are great places to pursue surrogacy. In fact, in addition to Washington D.C.,there are only 6 states from which Circle Surrogacy does not accept surrogates at the time of this writing: New York, New Jersey, Washington, Nebraska,Michigan, and Louisiana.

Surrogacy legal procedures

Along with the variety of laws concerning surrogacy, states (and sometimes even counties or jurisdictions within those states) have different ways of finalizing parental rights. In some states, pre-birth orders are the norm. This is a judgment of paternity granted to intended parents before the birth of a child that says that they are the legal parents and should be named on the birth certificate when the child is born.

In other states, the procedure is similar but may bepermitted only after the birth. This procedure is often known as a post-birth order.

Even when a pre-birth or post-birth order is possible, sometimes the best course of action is an adoption. Adoption often seems like an odd path for intended parents who have chosen surrogacy, especially in the case where both intended parents provide the genetic material.

There are two main reasons for an adoption: 1) the state has not established an alternative method for securing parental rights in the event of a surrogacy arrangement and so adoption is the best or only method available or 2) an adoption is the safest way to secure parental rights for both intended parents.

Adoption procedures following a surrogacy arrangement are often much faster and easier than those in a standard adoption, and most do not require a home study. Because states must grant full faith and credit to adoptions but not to certain birth orders, adoptions are a good choice especially for same-sex couples.