The next important thing to understand is that ‘surrogacy law’ doesn’t just mean one statute or code. There are actually several different issues at play here. Let’s break down the complexity by looking at a few major pieces.
1. The Surrogacy Agreement
Your surrogacy agreement (or contract) is the foundation of your journey. Every surrogacy contract is unique, and there’s endless variety in how they’re developed and negotiated. But one thing everyone agrees upon is that you shouldn’t go it alone. Rather than trying to develop your own contract (which will almost surely lead to confusion and conflict), work with an established surrogacy program like Circle. Our on-staff experts and legal counsel will ensure that everyone’s rights are protected - or refer you to the right surrogacy lawyer - so you can rest easy and focus on your journey.
So what exactly does a surrogacy agreement do? To put it simply, it says what all your major rights and responsibilities are during the surrogacy process. That includes...
- Surrogate compensation: How much will the surrogate mother be paid? Which expenses will be covered? What additional compensation will she receive for special circumstances like undergoing invasive procedures or taking bedrest?
- Health and safety: What are the surrogate mother’s responsibilities during pregnancy? How will she take care of herself and the developing child?
- Risks and liability issues: What happens if something goes wrong? Who’s responsible and what are their obligations?
- What if…?: There are endless ‘what-if’ situations that both the intended parents and the gestational carrier should consider beforehand. A well-written surrogacy agreement will help you do just that.
Different states have radically different ways of handling surrogacy contracts.
2. The Pre-Birth Order
Another major piece of surrogacy law is called the pre-birth order. This is simply a legal document which transfers parental rights to the intended parent when the child is born.
Typically, a pre-birth order is filed with the court anywhere from 4 to 7 months into the surrogate pregnancy. Different states have different requirements, but generally speaking, you’ll need to include a document from the physician affirming that they performed an embryo transfer from the biological mother to the gestational surrogate. You’ll likely also need a statement from the surrogate family confirming that they are giving up all legal rights to raise and parent the child.
Surrogacy-friendly states make it simple to file and receive your pre-birth order. Other states require intended parents to wait until after birth to establish legal parental rights. The legal maneuver is roughly similar in these states, but you may have to wait 3-5 days to file your post-birth order - and possibly appear in court with an attorney.
3. Adoption & Second Parent Adoption
In some situations, the intended parents will also need to complete a formal adoption process to fully establish their parental rights.
If neither of the intended parents have a biological relationship with the child, then they’ll fully adopt the child. On the other hand, if the embryo was formed using genetic material from one of the intended parents, then that parent already has full parental rights, and formal adoption is only necessary for the other parent. This is called second parent adoption.
Again, different states have very different laws governing the adoption process. More surrogacy-friendly states will make this process easier, while others specifically discourage it.