Who Has Parental Rights in Surrogacy?

In every surrogacy arrangement, the intended parents will need to take steps to establish their legal parentage. When you complete a gestational surrogacy legally with the help of experienced surrogacy professionals, everyone’s surrogacy rights will be addressed — so the intended parents will have parental rights, and the surrogate (and her spouse, if applicable) will not.

But, if you’re like most people, understanding who has parental rights and how to establish them in surrogacy can be confusing.  

In this guide, we’ll go over some of the legal steps required to establish the intended parents’ legal rights in surrogacy, including:

• How to get a pre-birth order
• How to get a post-birth parental order in surrogacy
• How to establish parentage with a post-birth adoption
• Whether the surrogate has rights to “keep” the baby
• And more

However, this article is not and should not be considered legal advice. If you have any questions, please reach out to your surrogacy attorney for more information.  

Who Has Parental Rights in Surrogacy? 

In the legal eye, there are a few ways in which parentage is automatically assumed. Under the Uniform Parentage Act:

• Any woman who gives birth to a child is presumed to be their biological mother of the child.
• If she is married, her husband is also presumed to be the biological father.

Of course, these assumptions don’t apply in gestational surrogacy. But because of the parentage act, there does need to be some acknowledgement of the parentage by the court. The surrogate and her husband, if applicable, will sign documents stating that they are not the legal parents of the child, and an attorney will help the intended parents establish parentage based on the applicable state laws. 

In traditional surrogacy, it can get a little tricky. There are some additional legal steps that need to be completed because the surrogate is technically the biological mother of the child. With this type of surrogacy, the surrogate’s parental rights need to be terminated. She and her husband (if applicable) will need to sign their consent in order for the intended parents to complete an adoption after the baby is born.  

How Do I Establish Parentage? 

Depending on your state’s laws, there are three different ways for the intended parents to establish legal parentage.  

Pre-Birth Order 

The pre-birth order is a legal process to establish parentage of the intended parents before the child is born. Whether or not this will be an option for establishing parenting depends on state surrogacy laws.  

In order to file a pre-birth order in surrogacy, there are a few documents that your attorney will need:

• Normally, all parties (intended parents and surrogate) will need to sign statements of parentage for the unborn baby.
• You doctor will also need to complete an affidavit confirming the embryo transfer.
• You will also need to file additional social documents and evaluations prepared during the surrogacy process. 

All of these documents will usually be filled in the third trimester of pregnancy. When done ahead of time, the parental order in surrogacy will make the process of taking the baby home much easier. Certain issues will already be taken care of, like: 

• Requiring the hospital list the intended parents on the birth certificate
• Allowing the intended parents to make medical decisions for their baby
• Resolving insurance coverage issues
• Allowing the child to be discharged to the intended parents

Your surrogacy agency and your attorney will work with you to create your pre-birth order. Ideally, this process will be done as early as possible to make sure that establishing parentage goes as smoothly as possible.

Post-Birth Order 

A post-birth order is like a pre-birth order. Due to some state surrogacy laws, you might not be able to complete a pre-birth order ahead of time. Instead, you’ll complete this form after the birth of the baby. Typically, it’s about three to five days after birth. The process for filling out the post-birth order is very similar to the pre-birth order. The biggest different just comes down to the time of filing.  

Adoption After Birth 

In some states, you won’t be able to complete a pre- or a post-birth order. In situations where an intended parent is not genetically related to the child, a second parent or stepparent adoption is sometimes required. Think of a single parent, a gay male couple or other intended parents using a donor gamete.

In order to establish your legal parentage in these situations, you’ll have to complete a stepparent or full adoption instead. While everyone knows that you’re the parent and the surrogate is just the gestational carrier, the legal system does require you to take some extra steps to legally protect your parental rights.  

Which type of adoption you’ll complete after birth will vary based on your marital status and whether you used donated gametes to complete your embryo. For example, those going through traditional surrogacy or cases where only one intended parent is the biological parent will typically only need a stepparent or second-parent adoption.  

In most cases, the adoption process to establish parentage can be simplified because of the relationship the intended parent has with their spouse. You might not need to complete certain adoption requirements, like the home study or post-placement supervision.

If an adoption is required, then the surrogate might need to sign additional paperwork to give her consent, even if she’s not genetically related to the child. No matter which type of adoption you must go through, your surrogacy attorney will make sure the process is easy to understand.  

Can a Surrogate Mother Decide to Keep the Baby? 

No. This question comes up often. If you’re a worried intended parent or a curious surrogate, it’s normal to wonder about surrogate mothers and legal rights. But the short answer is no, she cannot keep the baby after birth.  

Gestational surrogacy is a complicated legal process. When done correctly, the surrogate will have no parental rights or responsibilities to the child. She will know from the very beginning that her surrogacy rights do not include parentage over the child, and her only goal should be to add to the intended parents’ family.  

But, in the case of traditional surrogacy, the surrogate does have legal parental rights to the baby, as she is its biological mother. This can make things tricky. This is just one of the reasons why most surrogate professionals steer clear of traditional surrogacy. If you’re pursuing traditional surrogacy, it’s imperative to work with a great surrogacy attorney to make sure that your rights and interest are protected and the process is completed safely and legally.  

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Establishing proof of parentage can involve a lot of steps. But the feeling of meeting the baby for the first time and changing a family’s life is like nothing else. In the end, it will all be worth it. Surrogates like Codi know this feeling well:

“The most fulfilling part of being a surrogate is their joy. That we made a family and I got to be part of something. I feel really honored to do that. The best part was watching them become a family,” she said.

If you have any questions about legal parentage and the rights and role of a surrogate mother, please don’t hesitate to reach out to your surrogacy attorney or contact us today for more information.