Attorney at Law

The Process of Surrogacy: A Step-by-Step Guide

Daisy Rogozinsky
September 19, 2023
Last reviewed by
Joanna Smykowski
April 7, 2024

If you're considering a surrogacy journey, it's crucial to understand the legal steps and requirements involved. This legal guide will review each step of the surrogacy process in the United States. 

1. Understand the Laws

Different states may have different regulations concerning surrogacy agreements, parental rights, and compensation. Intended parents and surrogates need to be well-informed about their rights, responsibilities, and the potential risks involved. 

Intended parents should conduct thorough research to identify states with surrogacy-friendly laws that protect their parental rights and provide a clear legal framework for surrogacy agreements. Equally important is the consideration of the surrogate's rights and protections in the chosen state. 

By choosing a state with favorable surrogacy laws, intended parents and surrogates can increase the likelihood of a successful and legally recognized surrogacy journey, providing peace of mind for all parties involved.

2. Hire Experienced Legal Representation

Surrogacy involves complex legalities and potential challenges, making it essential to have competent attorneys who specialize in surrogacy law. They can guide intended parents and surrogates through the legal intricacies, ensuring all necessary legal documents are properly drafted and comprehensive surrogacy contracts are in place. 

Both the intended parents and the surrogate should have separate attorneys who specialize in surrogacy law. Independent legal counsel ensures that each party's rights are represented fairly during the negotiation and drafting of the surrogacy contract. This approach fosters transparency and minimizes conflicts of interest. With dedicated legal representation, both the intended parents and surrogate can have their concerns addressed, and potential legal issues can be identified and resolved early on.

3. Draft a Comprehensive Surrogacy Contract

Drafting a comprehensive surrogacy contract is a vital aspect of the surrogacy process. The agreement serves as a legally binding document that outlines the rights, responsibilities, and expectations of all parties involved—intended parents, the surrogate, and any other relevant parties. The contract should cover various essential elements, such as:

  • Compensation
  • Medical expenses
  • Legal parental rights
  • Potential contingencies

By creating a detailed and well-structured contract, all parties can have a clear understanding of their roles and obligations, minimizing the chances of misunderstandings or disputes. 

4. Background Checks and Screenings

Both intended parents and potential surrogates undergo thorough evaluations to ensure their suitability for the arrangement. These checks involve verifying:

  • Criminal records
  • Medical history
  • Psychological assessments

Background checks help to safeguard the well-being of the child and ensure a safe environment for their upbringing. Additionally, these screenings help establish a strong foundation of trust between the intended parents and surrogate, giving all parties confidence in moving forward with the surrogacy journey. 

5. Medical and Psychological Evaluations

Both the intended parents and the prospective surrogate undergo rigorous examinations to assess their physical and mental well-being. Medical evaluations ensure that the surrogate is in good health and capable of carrying a pregnancy to term. They also help identify any potential medical risks that may arise during pregnancy. Psychological evaluations aim to gauge the mental health and emotional readiness of all parties involved. These evaluations help ensure that the surrogacy journey is emotionally stable and that everyone is prepared for the challenges that may arise.

6. IVF, Embryo Transfer, and Pregnancy

During IVF, embryos are created using the intended parents' or donors' gametes and then transferred to the surrogate's uterus to initiate pregnancy. Medical professionals closely monitor the IVF procedure for successful embryo implantation. Subsequently, embryo transfer marks a pivotal moment as the carefully developed embryos are placed into the surrogate's uterus. Throughout the pregnancy, the surrogate receives regular prenatal care to ensure her health and the baby's well-being. This comprehensive approach ensures a positive and secure surrogacy journey for all parties involved.

7. Establish Parental Rights

After the baby is born, the intended parents must legally establish their rights as the child's legal parents. This is typically done through a parentage order or a court proceeding, depending on the state's laws. The parentage order ensures that the intended parents' names are listed on the child's birth certificate, granting them full legal rights and responsibilities for the child. This legal process provides security and certainty for the intended parents and helps protect the child's best interests.

8. Termination of the Surrogate's Rights and Responsibilities

After the birth and once the intended parents' legal rights are established, the surrogate's legal relationship with the child is officially terminated. This process may involve the surrogate relinquishing her parental rights through a voluntary termination of parental rights or a similar legal procedure. By completing this step, the surrogate is no longer legally responsible for the child, and the intended parents assume full legal and custodial rights. Termination of the surrogate's rights ensures a clear and smooth transition of parental responsibilities and solidifies the legal status of the intended parents as the child's lawful parents.

9. Handle Financial Arrangements

As part of the surrogacy contract, the financial terms are agreed upon, outlining the surrogate's compensation, medical expenses, and other related costs. The intended parents are typically responsible for covering all agreed-upon expenses, including the surrogate's compensation and any medical bills incurred during the pregnancy. Having a clear and well-defined financial arrangement in place helps prevent misunderstandings and disputes and fosters a positive and respectful relationship between the intended parents and the surrogate.

10. Ensure Legal Recognition

Ensuring legal recognition is a critical step in the surrogacy process, especially when the intended parents and the surrogate reside in different states or countries. After the birth, the surrogacy agreement and parental rights must be recognized and validated by the relevant authorities in the intended parents' home state or country. This process may involve obtaining a court order or obtaining a legal declaration of parentage to confirm the intended parents as the child's legal parents. By ensuring legal recognition, the intended parents can enjoy all the rights and responsibilities of parenthood.

11. Update Legal Documents

After the child's birth and legal recognition, the intended parents should review and revise relevant legal documents to include the new addition to the family. This may involve updating wills, insurance policies, healthcare directives, and any other legal paperwork that designates beneficiaries or legal guardians. By updating these documents, the intended parents ensure that the child is included in their estate planning and receives appropriate care in case of unforeseen circumstances. 

12. Prepare for Potential Issues

While surrogacy can be a rewarding experience, it’s not without challenges. Intended parents and surrogates should educate themselves about potential legal, emotional, or medical complications that may arise during the journey. By being well-informed and proactive, parties can anticipate and address any issues that may come up, fostering open communication and trust. It’s essential to have contingency plans in place and establish a strong support system to navigate challenges successfully. 

If you need help or have questions regarding a surrogacy journey, consulting with a family lawyer is essential. A family lawyer specializing in surrogacy law can provide expert advice, address your concerns, and guide you through the legal complexities of the process.

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