Aspiring parents resort to using a surrogate pregnancy to have a child when no intended parent can gestate the child. This can happen for many different reasons. An aspiring mother may be unable to gestate because she no longer has a functioning uterus or because of her own health risks during a pregnancy. Same-sex male couples use surrogacy to supply the uterus they do not possess.
Two types of surrogate pregnancy exist. Traditional surrogacy occurs when the surrogate also donates her egg and is artificially inseminated with sperm provided by the intended parents. Gestational surrogacy takes place when the intended mother’s or a donor’s egg is used, typically fertilized with the sperm of the intended father through the process of in vitro fertilization. The resulting embryos are then transferred for gestation into womb of the surrogate mother.
The laws governing surrogate pregnancy differ significantly from state to state. In some states, there are specific laws and procedures in place to govern and regulate surrogacy. In other states, there are laws that specifically restrict or prohibit surrogacy. In many states, like Minnesota, there is no specific surrogacy law, and other laws governing establishment of parentage must be used to replace the intended parents for the surrogate as the legal parents of the resulting child.
In some states, like California and Illinois, intended parents can get a pre-birth order making them the legal parents of the child immediately upon the child’s birth. In other states without specific surrogacy laws or precedent, the order to establish the intended parents as the child’s legal parents must be obtained post-birth. Post-birth orders are often subject to the discretion of the presiding court, but such orders are rarely denied when all the parties to the proceeding are in agreement as to who the ultimate legal parents should be. There are efficient procedures available in most jurisdictions to make the result of either pre-birth or post-birth orders essentially the same.
Pre-birth parentage orders are often preferred by intended parents because they feel more secure that the surrogate cannot seek or contest parental rights after the child’s birth. In fact, both traditional and gestational surrogates rarely seek parental rights when all proper psychological, medical, and legal procedures are followed. In addition, such contests are even more unlikely in gestational surrogacies given the strong legal precedent in many states that has determined that gestational surrogates should not be granted parental rights over the genetic/intended parents. While one can “never say never,” a parentage contest is the least likely of the many unexpected outcomes that can occur during the surrogacy process.
Post-birth parentage orders can be obtained with virtually identical timing and outcomes as pre-birth orders. Various guardianship documents can be put in place to transfer legal parental rights to the intended parents in the hospital after birth, and prompt court orders after birth can result in the initial birth record still reflecting only the intended parents as the child’s legal parents. Other than very brief timing and minor sequencing issues, there is little difference between pre- and post-birth orders, and an experienced surrogacy attorney can explain those differences as you decide whether to partner with a surrogate in a particular state for you surrogacy process.
It is important to consider what legal procedure to use in light of the genetics of the various parties. If the surrogate is not genetically-related to the child while both intended parents are, a simple proceeding under the state’s parentage statute may be sufficient as long as each intended parent has a presumption of parentage under those statutes. However, if one or more of the intended parents is not genetically-related to the child and has no other parental presumption under the relevant parentage statutes, then many states’ rules require an adoption proceeding to transfer enforceable parental rights to the non-genetic intended parent. Using shortcuts to avoid this adoption procedure that do not comply with the states’ parentage and adoption laws may seem more desirable and convenient, but such a process may also result in an order that is not enforceable if there is any future dispute among the parties over parentage or custody. It is always better to comply with the jurisdiction’s clear parentage laws, if possible, so that the resulting parental rights you achieve are unassailable for all time.
If you decide to go through with a surrogate pregnancy
The laws governing surrogate pregnancy can be a minefield for couples going that route. The help of an experienced family law attorney is vital if you intend to protect your parental rights under those circumstances.