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Surrogacy is a complex process, and requires legal work for all parties involved. As a gay or trans parent, it's important to understand your rights, and what the surrogacy laws are in your state or country, and in the state in which your surrogate resides. Our experienced legal team can help you navigate the legal aspect of your surrogacy journey and make you feel comfortable and confident.
The legal piece of surrogacy can feel like the most complicated. Since surrogacy laws vary by state, and can even differ depending on the county – or even the judge – hearing the case, that adds another layer of complexity. Thus, a thorough understanding of the law in the relevant jurisdiction is the most important aspect of a surrogacy journey.
Circle Surrogacy has in-house legal professionals who can weigh in on matters related to enforceability of surrogacy contracts, advise hopeful parents on how to navigate their state laws as well as the carrier’s state laws, and offer useful insights to guide the process. Attorneys will also assist with various other aspects of surrogacy, including the drafting of the surrogacy agreement between the intended parents and the gestational carrier, as well as securing the parents’ parentage rights. Circle also has relationships with attorneys throughout the country and the world who are experts in their jurisdictions’ surrogacy, residency and citizenship laws to further assist the Intended Parents.
There are a few key milestones during your surrogacy and egg donation journey during which you'll require the services of a lawyer who is experienced in surrogacy and Assisted Reproductive Technology (ART) law.
Carrier Agreement (Contract)
The Carrier Agreement is the legal contract between the gestational carrier and the intended parent(s). The agreement will lay out each party’s rights and responsibilities. It should carefully outline the surrogate’s responsibilities to the intended parents, such as attending all required medical appointments, maintaining a healthy lifestyle during the pregnancy, and maintaining contact with the intended parents. The surrogacy agreement will also ensure the gestational carrier relinquishes her claim to parental rights over the child following the child’s birth.
The surrogacy agreement will also detail the intended parents’ responsibilities to the surrogate, outline their financial obligations and carefully list all the expenses they must cover throughout the surrogacy. The surrogacy agreement must also outline all potential risks and liabilities and describe each party’s responsibilities should certain contingencies occur, such as a caesarian section or miscarriage. It is essential that all parties involved in a surrogacy agreement ensure the agreement adheres to their state’s surrogacy laws. It is also important that all parties utilize competent attorneys in the drafting and negotiating of the agreement.
Egg Donor Agreement.
Similar to the Carrier agreement, the Egg Donor Agreement is put in place to protect all parties involved in the egg donation arrangement, state the intended parents’ and donor’s intentions and legal obligations, and dissolve the donor’s custody over the baby born through the process. The egg donor agreement gives intended parents control of all eggs retrieved from the donor as well as any resulting embryos. It also outlines the need for purchasing medical insurance to cover the egg donor for any complications that may arise, as well as all travel-related expenses.
The agreement also addresses future contact between the IPs and egg donor, which depends largely on whether it’s a known donation, semi-known donation, or anonymous donation. The egg donor agreement also includes a clause requiring the egg donor to provide updated medical information if her health history changes. Intended parents should work with an experienced lawyer when negotiating their Egg Donor Agreement.
Establishing Parental Rights.
The most pressing legal issue facing any intended parent is the enforceability of the surrogacy agreement between the intended parents and the surrogate and the establishment of the Intended Parents’ parentage rights. It is important that all parties work with experienced attorneys with knowledge of the requirements in the jurisdiction where the parentage legal work will occur when drafting and negotiating their contracts so that their contracts will be upheld throughout their surrogacy and that proper parentage rights will be granted and birth certificates will reflect proper parentage. It is necessary to draw up a legally binding and thorough surrogacy contract, but it ultimately comes down to the state to enforce the contract and provide the official documentation that establishes the parental rights of the intended parents.
Here are some of the aspects of a surrogacy journey that will require an experienced legal team:
Obtaining a Pre-Birth Order (PBO): A court proceeding that establishes parental rights prior to the birth of the child. PBOs are only available in certain states. In other states, it may be possible to obtain a post-birth order.
Voluntary Acknowledgement of Paternity: Allows a birth mother to designate a father, sometimes without the need for a court proceeding.
Custody Order: Grants custody of a child to the intended parent(s).
Second-Parent Adoption: Permanently establishes the non-biological parent’s rights to the child. It’s advisable to obtain a second-parent adoption. Even when it is possible to obtain a pre-birth order or a post-birth order, parents should know that not all states recognize parentage conferred in this way. By contrast, adoptions are recognized nationwide.Wills and Estate Planning: Ensures that guardianship of the child is provided for in the event of the death of one or both parents. When a gay couple lives in a state or country where same-sex marriage isn’t legal, it becomes even more important to establish these documents.
Ensuring that your surrogate lives in a state in which you'll be able to safely and securely establish your parental rights is crucial for a successful journey.
The legal work for gay parents and trans parents is very similar; any difference could depend on the biological relationship the intended parents has to the child.
The best way to learn the details of a surrogacy journey – and what to expect – is to speak with a surrogacy agency. Our team is happy to answer your questions, share their personal experiences as gay parents through surrogacy, and ensure you are feeling comfortable with surrogacy as a family-building option.
Fill out this short form and our team will reach out to you to schedule a time to chat.