Surrogacy Laws in the United States Can Be Complex: Here's How It All Works
Non-traditional paths to parenthood are frequently misunderstood, and surrogacy is arguably the path that is most in need of cultural demystification. Surrogacy involves so many moving pieces, and both the medical and legal processes are complicated. On top of that, there’s this persistent misconception that surrogacy is just for the uber-privileged when in reality, people turn to surrogacy for a range of reasons.
In order to help others better understand what surrogacy really entails, we spoke with Dean Hutchison, Vice President of Legal Services at Circle Surrogacy, who broke down some of the important facts about the legalities surrounding surrogacy in the United States.
It’s an inherently complex process, and if you’re pursuing surrogacy, it’s absolutely worthwhile to speak with a legal expert who can break down the nuances of the laws in your state (more on that below!). But if you’re just starting to think about pursuing surrogacy, either as an intended parent or a gestational carrier, here’s an overview of how it works in this country.
Surrogacy laws vary from state to state.
The first thing you need to know about surrogacy in the United States is this: There’s no nationwide legal standard. Surrogacy laws differ from state to state, which makes wrapping your head around the legal nuances, especially complex.
Many of these legal nuances relate to the process of establishing parentage rights in surrogacy cases.
“There are states that allow for pre-birth determinations of the intended parents’ rights, so you’re getting a court order prior to the baby’s birth that fully establishes your rights either as the sole parent if you’re single, or if you’re a couple, both parents’ rights,” says Hutchison. “You have states that have some type of pre- and post-action, where you might get some order giving certain rights prior to the baby being born, and then a full establishment of rights after the baby is born. And then you have states that sometimes won’t allow anything to happen until after the baby is born, you’re waiting for birth because of their parentage [laws] that require an actual delivery to happen before the court can make a decision as to who the parents are. And there are states too where a non-biological parent can’t establish his/her rights without some form of adoption as well.”
Sounds confusing? It certainly can be. Here’s what we’d suggest: If you’re pursuing surrogacy, meet with a reproductive attorney local to your case who can explain how your parentage rights will play out according to the state’s law.
But wait. My surrogate lives in a different state. Which law do we follow?
“It can depend. The majority of the time the state where the delivery is happening is the state whose law you look to from a parentage perspective and surrogacy law perspective,” says Hutchison. “The caveat is that some states have pretty broad jurisdictions — California, for example, has language stating that if any party lives in California or if the IVF process happens in California, you can get a California court decision. Whether that will be accepted by all states is another [question].”
So again — it’s complicated, but a reproductive attorney can walk you through the process.
When it comes to surrogacy, a lawyer is a must.
While some intended parents and surrogates match via agencies, others may choose to match independently. While an agency can walk you through much of the process and put you in touch with an attorney, seeking out legal counsel is essential if you’ve successfully found a match independently.
It’s worthwhile to start speaking with a lawyer before you even start speaking with potential matches. And if you do find a surrogate in another state, your local attorney can help put you in touch with someone who can speak to the legal realities of whichever state your baby’s delivery will take place.
“The good thing about the community [of reproductive attorneys] as a whole is, it’s very collegial and we all have lots of referral sources around the country,” says Hutchison.” If you’re working with your attorney in Maryland and you happen to find a woman who is potentially willing to carry in Illinois, they can give you a general background on that law but also introduce you to attorneys specifically in that state if you want to have those conversations about surrogacy and the parentage process in the carrier’s home state.”
Overseas surrogacy is possible — but potentially even more complicated.
Unlike the United States, most other countries have federal laws for surrogacy, so in countries that do allow surrogacy, there’s one set of laws that applies nationwide. It is possible for intended parents to use a surrogate who lives overseas, but it’s crucial that you really do your homework if you choose to go this route.
It’s important to fully understand the laws in the other country, as well as how you would bring your child home, how parentage rights would be established, and whether or not your child has automatic U.S. citizenship if you opt to pursue international surrogacy.
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There’s a difference between traditional and gestational surrogacy.
Typically, when people think of surrogacy, they think of what’s known as “traditional surrogacy”, which is actually far less common in this day and age.
“The major difference is the carrier or surrogate in a traditional surrogacy is the genetic or egg provider in that case. In gestational surrogacy, the egg and sperm either come from the intended parents or they’re from a third party donor source and then the gestational carrier is carrying that pregnancy but has no genetic connection whatsoever to the child that is being born,” says Hutchison.
Before IVF became a possibility, traditional surrogacy was the norm — surrogates typically became pregnant after insemination. Now that clinics are capable of taking an egg from an intended parent or a third party and implanting it into a gestational carrier’s uterus, gestational surrogacy has become more of the norm.
“In traditional surrogacy, obviously the surrogate has a genetic connection because she is a gamete source or an egg source to the child. Usually, it’s contractually and legally a much different process,” explains Hutchison. “Most states will see it more as an adoption than a surrogacy, and therefore the parentage establishment process is going to be different than a surrogacy case.”
Establishing parental rights can vary from case to case.
Typically, surrogates and intended parents will lay out their beliefs regarding things like pregnancy termination before formally agreeing to a match.
But of course, you can’t plan for every scenario where pregnancy is concerned. Typically, if a fetal abnormality is detected, contracts will allow the intended parents to determine a course of action. With that being said, the pregnancy affects the surrogate’s body, and decisions that affect her own health are typically hers to make.
“Particularly when it comes to her own health — if a surrogate’s life is at risk, she’s always going to have the right to make those decisions when it’s her own life and health at risk — most surrogacy statutes codify these decision-making rights,” says Hutchison.
Laws exist to protect both intended parents and surrogates.
“The majority of the laws that are surrogacy-related are there to protect all the parties in the process,” says Hutchison. “[For the intended parents], what they’re basically doing is creating a framework to pursue surrogacy and then creating a framework to make sure their parentage rights are not going to be tested. They are really the parents of the child to be born, almost from the moment of signing the contract and obviously immediately upon the court order coming down. The majority of the statutory language is not only to protect the process, making sure it’s healthy and safe but also the parents’ rights are fully secure.”
As for the surrogates, legal protection begins before the process even starts — candidates who wish to become surrogates are vetted to identify any physical or mental health issues that could affect them through the process. “[Additionally, laws are] protecting them throughout the pregnancy on medical decision rights and other aspects of the journey including insurance coverage,” says Hutchison.
And parentage rights laws also work to protect surrogates, who won’t find themselves legally responsible for a child they did not intend to raise.
Surrogacy is not always compensated monetarily.
There’s a distinction between “compensated” and “altruistic” surrogacy, but Hutchison believes these terms convey a common misconception about surrogacy.
“Non-compensated surrogacy happens with family members or friends that are helping other parents. You would establish parentage rights the same way,” he explains. “[But] I’ve worked with many, many, many surrogates and there’s a lot of altruism that goes into every compensated surrogacy as well — they’re women putting their lives semi-on hold and taking on great risks for parents to help them achieve their dreams of parentage. Yes, they get paid a fee but it’s not a very large fee in the grand scheme of things.”
Vivian Nunez is a writer, content creator, and Happy To Be Here podcast host. Her award-winning Instagram community has created pathways for speaking on traditionally taboo topics, like mental health and grief. You can find Vivian @vivnunez on Instagram/TikTok and her writing on Medium and her blog, vivnunez.com.