Your parental rights using a gestational surrogate

Your Parental Rights Using a Surrogate: What You Need To Know

Hatch Fertility
Written by Hatch Fertility

Although traditional surrogacy has a history dating back to biblical times, it was not until 1985 that the first successful birth via gestational surrogacy occurred. Since then, the practice of assisted reproduction through gestational surrogacy has gained popularity over the past three decades.

And for many intended parents, the first question that comes to mind is:

As a parent using a gestational surrogate, do I gain legal parental rights to my child, whether or not we have a biological relationship?

The simple answer: Yes. Through gestational surrogacy, you can gain legal parental status, and one or both parents can be biologically related to the child. 

If you're using gestational surrogacy to grow your family in a U.S. state with surrogacy-friendly laws, you’ll have full parental rights to the baby. Once you’ve established legal parenthood, your gestational surrogate has no legal rights to your child, and she can’t claim to be the mother. 

If you’re an intended mother or father using gestational surrogacy and you have healthy, viable eggs and sperm, your genetic materials can create an embryo using in vitro fertilization (IVF). Through IVF, couples can also be the full biological parents of their child, even with a surrogate. 

However, because traditional surrogates use their own eggs and share genetic makeup with the child she’s carrying, intended parents using a traditional surrogate will not have a full biological relation to their child. In some U.S. states, parents can still have full legal rights with traditional surrogacy. However, it may be a more complex legal process.

Can my surrogate decide to keep the baby? 

No. In a state where surrogacy contracts are legally enforceable, your surrogate can’t decide to keep the baby. While media and literature can perpetuate this dilemma of a surrogate keeping the child, it’s not a challenge that modern-day agencies and intended parents need to worry about as long as they ensure they’re working with experienced attorneys and with a surrogate located in a state with favorable laws

While your surrogate has many rights outlined in your contract, a gestational carrier cannot choose to keep the child because she won’t have parental rights to the baby and won’t be biologically related. However, it’s also important to select a reputable surrogacy agency to protect yourself and your surrogate throughout this process and provide more peace of mind. 

If possible, you and your attorney will establish parental rights through a pre-birth order, and your contract will outline the details surrounding when your surrogate will hand over, or relinquish, the child(s). Some states use a post-birth order.

Each agency’s screening process for surrogates is different, but should entail thorough medical, social and psychological screenings to monitor and flag any potential concerns to provide you and your surrogate with the happiest, healthiest pregnancy possible. 

Surrogates don’t become surrogates with the intent to raise another child, as they’ve already had their own children. Rather, gestational carriers choose to become surrogates to make a family possible for someone else.

If you’re concerned that your surrogate may develop a strong bond with your child during pregnancy, she may benefit from an agency’s counseling and support services. It’s also a good idea for you to speak with a counselor and seek agency support to address your concerns. These services may also help you overcome any anxiety you are experiencing throughout the surrogacy process.  

The legal requirements of surrogacy

Your surrogacy agency and the expert attorney you work with should cover all of the legal requirements and details of your journey, so this aspect should be very stress-free. 

Surrogacy laws vary by state, and some are more surrogacy-friendly than others. Regardless of where you or your partner live, geography should not stop you from realizing your dreams of becoming a parent. 

Throughout the surrogacy process, every arrangement will involve a legal contract created by your attorneys to ensure your legal interests are being represented and your rights are being protected. Through these contracts, each party’s rights and responsibilities will be detailed, including potential risks and agreed-upon compensation. 

During the legal surrogacy process, you can expect three main contracts: 

  1. Your program agreement with the agency
  2. The surrogacy contract
  3. The pre-birth order or the post-birth legal procedures, or adoption in some cases

Surrogacy contracts

Before the initial embryo transfer, you and your surrogate will need to collaborate with your respective attorneys to create and negotiate a surrogacy contract. This should outline finances you’ll be providing to your surrogate as compensation, in addition to payments covering maternity clothes, allowances, and other circumstances (like carrying multiples or undergoing procedures). 

The second aspect of your surrogacy contract should outline the social responsibilities of the surrogate’s pregnancy, such as abstaining from drugs and alcohol, avoiding foods that aren’t safe for pregnancy and refraining from high-risk activities. In addition, this aspect of the contract also covers social agreements between you and your surrogate throughout appointments and milestones in the pregnancy. 

Pre-birth orders

Many states allow intended parents using a gestational carrier to file a pre-birth order, which is a legal contract that instructs the hospital to enter your names on the original birth certificate and allows you to make medical decisions for your child. By doing this, you can establish yourself as the child’s legal parents. 

In some surrogacy-friendly states, you can file a pre-birth order so that you’re the legal parents in advance of the birth and can make decisions for your child from the moment they are born. This generally requires paperwork from the reproductive endocrinologist claiming that the embryos were transferred to your surrogate, legal documents prepared for the surrogacy, and signed paperwork by the surrogate and her spouse, if applicable, that relinquish legal rights to the child once born. 

Your attorney should begin preparing this paperwork in the second trimester to be filed around six to seven months into the surrogacy pregnancy. If pre-birth orders are filed, the paperwork process post-birth is lightened and you'll be automatically granted legal custody of your child from birth. 

Regardless of whether you have a pre- or post-birth order, your contract with your surrogate will stipulate that you get legal custody from the birth and that she and her partner will cooperate with any processes necessary to make you the legal guardian. 

Post-birth legal procedures 

Depending on which state you live in, you and your lawyer may need to take additional steps before you can be recognized as legal parents of your child. These steps are purely for the protection of yourself and your child. Post-birth legal procedures are also relevant for intended parents using surrogacy if one or both of you are not biologically related to the child. 

Legally defined as “stepparent adoption,” this is required when one parent’s genetic material was combined with donor eggs or sperm to create the embryo. In this case, the other partner will adopt their child. Depending on your state’s laws, same-sex couples who are not married may need to complete a second-parent adoption instead of stepparent adoption. 

However, if neither of you are biologically related to your child, you may need to undergo a full adoption process. Every state has different adoption laws, so rely on your attorney to guide you throughout this complicated process. Your attorney and agency should recommend you to work with a surrogate in a state where a legal adoption won’t be needed for your circumstances whenever possible.

Through following these contracts, you and your partner have full parental responsibility and are legally recognized as your child’s parents, regardless of who carried the pregnancy to term. Additionally, your surrogate can have peace of mind she is being well taken care of, will have her needs met, and can focus on taking optimal care of herself and your baby during the pregnancy.

Other legal considerations around gestational surrogacy 

Gestational surrogacy laws differ from traditional surrogacy laws, and these change by state and country across the world. Some states even have variations at the county level. Finding legal counsel that you trust is an important part of experiencing a happy, healthy pregnancy, and legal protection is at the foundation of achieving this. 

Find your dream surrogate 

Parenthood is a beautiful experience, and everyone deserves the chance to bring new life into the world. If you or your partner are experiencing infertility or considering third-party IVF, gestational surrogacy is a wonderful way to bring your newest family member into this world and create a lifetime of memories. 

At Hatch, we pride ourselves on selecting only the most qualified surrogate candidates for our program, so you can feel confident that you are making the best choice for your family through curated thoughtful matches. To find out more about surrogacy, we’d love to talk with you and hear your questions.