Surrogacy law encompasses family law, contract law, estate planning, insurance and often immigration law. Legal experts at your surrogacy agency are charged with negotiating agreements between intended parents and surrogates and egg donors, planning for the future and the best interests of the child, making sure everyone is insured from financial risk, finalizing parental rights, and getting everyone home safely.
Here are 4 of the most important things you should know about surrogacy law.
1. Surrogacy laws differ from state to state.
Surrogacy falls under the umbrella of family law and family law is governed by the states. The state law governing a surrogacy arrangement is almost always the one where the surrogate lives. This state’s law will determine parentage and custody unless the surrogate delivers in a different state.
In some (4) states (New York, Michigan, Nebraska, Louisiana) surrogacy is illegal or unenforceable. More often than not, it’s not a good idea to pursue surrogacy when the surrogate lives in one of these states.
In the remaining 46 states, there is either a statute that permits surrogacy, favorable high court decisions or both. Others have no statute or published case, yet the courts regularly allow surrogacy.
2. Surrogacy law is always changing.
Cases are being handed down in the lower courts regularly and vital records offices are often changing their practices and procedures. It’s important for surrogacy experts to stay up to date and informed about changes in the law and practice and to pass this information on to you.
Take California, for example, which has been favorable to gestational surrogacy law for nearly 20 years. In Johnson v. Calvert, the state’s Supreme Court established the principle that the intention of the parties in the surrogacy agreement governs any dispute between them. Furthermore, In re Marriage of Buzzanca, the court extended the enforceability of the contract to intended parents who have no genetic relationship to the children. Then, in September 2012, California passed a statute expressly authorizing surrogacy agreements as well as pre- and post-birth orders.
3. Working with an experienced attorney is essential.
Despite the existence of precedent, intended parents should still work with an experienced attorney who specializes in reproductive law. Having a legal contract with your gestational surrogate and/or egg donor that ensures that you are independently represented by different attorneys specializing in reproductive law is absolutely critical. Moving forward with surrogacy or egg donation without a contract can lead to rights or responsibilities for the egg donor or the surrogate.
4. Finalizing parental rights can take different forms.
Surrogacy is not a cookie-cutter field. Many factors come into play to determine which is the best way for those pursuing surrogacy to finalize their parental rights. For example, the state or country where the intended parents reside can regulate the finalization of parental rights. In some states, for example, pre-birth orders (ordering hospitals to place intended parents on the birth certificate and giving the intended parents rights to make decisions for the child in the hospital) are recognized. Other states will not treat a pre-birth order as establishing legal rights if one parent is not biologically related to the child. In those states, the intended parents must complete a step or second-parent adoption back home.
Intended parents from abroad may need to pursue adoption or a parentage order upon returning home. Or they may not need further legal work after leaving the United States. International intended parents should consult with attorneys in their countries to determine which is the safest way to get home safely with their parental rights secured so that US agency lawyers can help match them properly.
Editor’s Note: This blog was originally published in 2012, and has been updated to reflect changes to state laws.
Citations: Johnson v. Calvert, 5 Cal. 4th 84 (1993); In re Marriage of Buzzanca, 61 Cal.App.4th 1410, 72 Cal.Rptr.2d 280 (Ct. App. 1998); Culliton v. Beth Israel Hospital, 435 Mass. 285 (2001); In re Adoption of Tammy, 416 Mass. 205 (1993); In re Adoption of Galen, 425 Mass. 201 (1997); RR v. MH, 426 Mass. 501 (1998); and Hodas v. Morin, 442 Mass. 544 (2004); In re Paternity of M.F., N.E.2d 1256 (Ind.App. 2010); McDonald v. McDonald, 196 A.D.2d 7, 608 N.Y.S.2d 477 (2d Dept. 1994); In re Adoption of Sebastian, 879 N.Y.S.2d 677 (2009); In re T.J.S., 16 A.3d 386 (N.J.Super.A.D. 2011).