A Legal Foundation For Your Family

Assisted reproductive advancements pose legal questions

On Behalf of | Apr 14, 2021 | Surrogacy

Surrogacy has become a common practice in recent years as more people feel morally and legally comfortable with the process. Many heterosexual couples in Minnesota struggling to have a baby as well as same-sex couples desiring to become parents have found that surrogacy is the right choice for them.

However, surrogacy comes with many legal questions that must be answered prior to the conception of the baby. Surrogacy should be approached with the help of an attorney who has extensive knowledge of this area of law.

Are you required to adopt your baby when it is born to a surrogate?

This will depend on the state in which your surrogate lives at the time of birth. The law of the state where the surrogate resides is typically the law that will apply to establish the parentage of the child. The rules of how to establish parentage generally and in the case of surrogacy are individual to each state. Some states have specific laws setting forth how and when parentage can be established when a surrogate is used; other states have no specific surrogacy laws, so parentage must be established under the general parentage laws of such states. If there is a specific statute governing surrogacy in the state where you baby is born, parentage will normally be established by compliance with that statute, and an adoption will not be required. If there is no such statute, whether an adoption is required may depend on the specific state’s parentage laws coupled with the nature of the genetics used to create the embryo.

In the absence of a specific surrogacy statute, each state’s law determines who has a sufficient “connection” to the child to be awarded the right to simply ask for parental rights.  Clearly the most predominant connection is to the woman giving birth based on the historical reality and perception preceding current medical interventions that she MUST be the mother. The birth woman’s husband is usually also seen as a parent by virtue of their marriage and the assumption the child is a child of their marriage. But, as we all know, there can be other genetics used, either by marital infidelity or, now, medical intervention through insemination or in vitro fertilization. Thus, some, but not all, states also allow for a proven genetic parent to seek and obtain parentage over a child. If the genetics of both the intended mother and father are used in a state in which the law allows standing to be awarded parentage to both genetic parents, a simple parentage action to void the parental presumption of the surrogate and her spouse, if any, and to establish legal parentage of the intended genetic parents is all that is required. There is no adoption.  However, (1) in states where a woman’s genetic relationship does not give her standing to assert parentage or (2) if an egg donor is used by either a heterosexual or same sex couple, then the only legally relable way to establish the non-genetic intended parent’s legal parental rights is through a step-parent adoption (if the couple is married) or a second-parent adoption (if they are not).

Regardless of whether an adoption is required, in all states (save Michigan, where surrogacy is still criminalized) a court parental order or judgment of parentage or adoption will be issued either before or after the baby’s birth naming the intended parents, whether genetic or not, as the sole legal parents of the child. Such orders are generally recognized by all other states under the federal concept of full faith and credit, meaning each state must recognize and give full legal effect to the judicial orders of all other states. Whether you obtain this court order or judgment before or after birth is largely irrelevant, and you can safely and reliably undertake and become legal parents with immediate legal authority over your child upon birth in both states that issue orders before birth and those that issue them afterwards. As experienced surrogacy attorney who practices law in the relevant state can explain the details and procedures that will apply in that state.

Are there other issues you should consider before contracting with a surrogate?

There are many legal issues that must be addressed before surrogacy begins. You will need to address the health and welfare of the surrogate during the pregnancy, insurance issues, financial responsibility and obligations, dispute resolution mechanisms, and any contingency plans if there are medical concerns throughout the pregnancy, among others.

You will have many questions that should be answered before you decide to use a surrogate. Make sure that you speak with your attorney at length about the entire process before signing the surrogacy contract.