Legal Process
Surrogacy Legal Process
The legal aspects of surrogacy can be some of the more complicated elements of the process. Surrogacy laws vary by state, and can even differ depending on the county — or even the judge — hearing the case. So the law in the relevant jurisdiction shapes nearly every decision that follows.
You don’t have to take this on yourself. At Circle Surrogacy, we’ve supported intended parents and surrogates in the legal side of surrogacy for over 30 years. As a full-service surrogacy agency, we'll tell you what each legal step requires and when it happens.
Circle Has a Full In-House Legal Team
Our legal team sits in-house, which means we can help with the legal side of your surrogacy journey from your first contract questions until you bring your baby home (and sometimes even years after if you complete secondary legal work in your home state or country). Our team can assist with contract, parentage and other legal questions that may arise throughout your journey.
We have relationships with attorneys throughout the U.S. — and the world — who are experts in their jurisdictions’ surrogacy, residency, and citizenship laws to provide further assistance when you need them.
What Does a Surrogacy Lawyer Do?
There are a few key milestones during your surrogacy journey when you'll need a lawyer who is experienced in surrogacy and Assisted Reproductive Technology (ART) law. They begin at your initial match with your surrogate, continue through the contracts phase, and end with establishing your parental rights. Listen to our podcast, What a Lawyer Does in a Surrogacy Journey, to hear from one of our in-house surrogacy lawyers.
Carrier Agreement (Contract)
The Carrier Agreement, also called a surrogacy contract, surrogacy agreement, or gestational carrier agreement, is the legal contract between the gestational carrier (surrogate) and the intended parent(s). This agreement will lay out each party’s rights and responsibilities. It should carefully outline your surrogate’s responsibilities to you as the intended parent, such as attending all required medical appointments, maintaining a healthy lifestyle during the pregnancy, and staying in contact with you. The surrogacy agreement will also ensure your surrogate relinquishes any and all claims to parental rights over your baby after birth. The agreement also outlines your responsibilities to the surrogate, including your financial obligations, and carefully lists all the expenses you must cover throughout the surrogacy. Additionally, it must outline all potential risks and liabilities and describe each party’s responsibilities should certain situations arise, such as a cesarean section or miscarriage. It’s essential that all parties involved in a surrogacy contract ensure the agreement adheres to their state’s surrogacy laws. All parties should work with qualified attorneys in the drafting and negotiating of the agreement. Our in-house legal team is with you through the process, and your surrogate will always have her own independent attorney, funded through the program.
Establishing Parental Rights
The most pressing legal issue facing any intended parent is the enforceability of the surrogacy agreement and the establishment of your parentage rights. It’s important that all parties work with experienced attorneys who understand the legal requirements in the jurisdiction where parentage will be established. The drafting and negotiating of your contract should account for the parentage requirements in the relevant jurisdiction so that your agreement holds up, your parental rights are granted, and the birth certificate names you correctly. While it’s necessary to draw up a legally binding and thorough surrogacy contract, it ultimately comes down to the state to enforce the contract and provide the official documentation that establishes your parental rights. There is no single route to parentage. Which one applies usually depends on the state law where your surrogate delivers, and in some cases on whether both of you are genetically related to your baby. These three routes cover almost all journeys.
The Pre-Birth Order
A pre-birth order establishes your parentage before your baby is born, naming you as the sole parent or parents from the moment of birth. Not every state offers them. Where they are available, each state sets its own requirements in statute or case law. It's best to start the parentage process as early as possible after confirmation of pregnancy so that the court order is in place before birth.
The Post-Birth Order
Where a pre-birth order isn't available, a post-birth order does the same job after your baby is born. In these states, you’re added to the birth certificate after your baby's birth.
Second Parent Adoption
In some states, an adoption order is the only route to full parental rights for a non-genetic parent. These situations typically involve a parent who is not genetically related to the baby adopting their partner's genetic child. It's usually far less involved than a full adoption — often a single hearing.
Circle Parents Receive Full-Service Legal Support
When you work with us, you’ll have an attorney and paralegal at Circle who will support you throughout your journey. Our in-house team works in ART law every day and knows what each jurisdiction requires and how those rules apply to your situation. We also have strong relationships with surrogacy lawyers across the United States and abroad so there are no gaps between jurisdictions for intended parents who live internationally, are single, or are LGBTQIA+.
A Legacy of Legal Support for LGBTQIA+ Parents
As an agency founded by John Weltman, an attorney and a gay man who grew his own family through surrogacy, supporting LGBTQIA+ parents isn’t just something we do — it’s how we began. Parentage laws vary from state to state for same-sex couples, with some states requiring additional legal steps to establish both parents’ rights. Our legal team has been helping LGBTQIA+ intended parents build their families since 1995 and will work with you to make sure your rights as a parent are protected.
Helping International Intended Parents Navigate Their Journey
For intended parents living outside of the United States, the legal process involves an extra layer of complexity. You’ll navigate ART laws in the U.S. and the legal requirements in your home country. With Circle, you don’t have to do this alone.
We work closely with our legal contacts around the world to create a clear legal plan that helps ensure your parentage is established correctly in the U.S. and that you know what your home country will require before you travel.
Supporting Single Intended Parents Through the Legal Process
We don’t just help couples navigate the legal side of surrogacy — we’ve also been supporting single intended parents from the start. If you’re a single intended parent, we understand that you’ll be making family-building decisions on your own, including the legal ones. We’ll help you navigate your state’s requirements for establishing parentage as a single parent.
Legal Process FAQs
Below are some common questions about the surrogacy legal process. You can read our full list of FAQs about the general surrogacy process here.
In some states, you can establish parentage before your baby is born by having an attorney file a pre-birth order. This usually involves the intended parents and surrogate signing statements documenting parental rights for the unborn baby. Where available, a pre-birth order protects your legal rights before your baby arrives.
Some states may not allow a non-genetic intended parent to complete their parentage process without an adoption order. In those cases, the genetic parent usually gets a pre or post birth parentage order and the non-genetic parent completes a second or close parent adoption to establish their parentage. How you complete the adoption varies depending on factors such as your marital status. The process typically involves attending an adoption hearing, which your surrogacy lawyer prepares you for. This sometimes occurs in the state of delivery or could happen in your home state.
The legal process for single intended parents is mostly the same — you'll still need a Carrier Agreement, and you'll still establish parentage through a pre-birth or post-birth order. The key difference is that some states have specific parentage requirements for single versus married intended parents, so it's important to work with an attorney who understands those distinctions. We’ve worked with single intended parents for over three decades and will make sure your contract and parentage paperwork are tailored to your family.
No. In gestational surrogacy, the surrogate has no genetic connection to your baby, and your Carrier Agreement documents the intentions of everyone involved from the outset. A pre-birth or post-birth order then establishes you as your child’s legal parent. These protections work together to ensure your parental rights are clearly defined.
The answers is: it depends. Some states will require attorneys from those states to be involved in the contract process and nearly all states will require a local attorney to complete the parentage process. Your Circle team is available to assist throughout, but if local counsel is needed, you won't have to find that lawyer yourself — we’ll connect you with an attorney who specializes in ART law from our trusted network.
Our in-house legal team usually drafts your Carrier Agreement and handles the parentage process. If your state requires an independent attorney, we can assist in engaging one for you. Your surrogate will also have her own independent attorney to review and negotiate the contract. This makes sure that each party’s interests are fully represented, and the cost is included in our fixed-cost Journey Protection™ Program, which covers legal representation for both sides.
Surrogacy Legal Support From Day One
The legal part of surrogacy is complex, but you won’t be handling it alone. Your team at Circle includes attorneys and paralegals who handle these filings in the states where we work, along with licensed mental health professionals, program coordinators, and a CPA. With over 4,000 babies born through our program, we’ve seen these cases through from the first Carrier Agreement to the day a family travels home.
Whether you’re just starting to explore surrogacy or you’re ready to take the first step, we’ll walk you through what your state requires. Contact Circle Surrogacy to talk through the legal process where you live.
This page is for informational purposes only and does not constitute legal advice. Read full legal notice.