The Legal Surrogacy Process [An Introductory Guide]

The path to building your family or helping someone else create theirs is an exciting one. Right now, you’re likely eager to find a match and get the ball rolling. But before you can start getting ready for doctors’ appointments, you’ll need to jump through some legal surrogacy hoops first, including:

  • Establishing donor contracts, if needed
  • Drafting, negotiating and signing a legal surrogacy contract
  • Ensuring you’re following your state’s surrogacy laws
  • And more

Fortunately, you don’t have to take these steps alone. You can get free information about the surrogacy legal process now by contacting us here.

Surrogacy, like any family-building process, has some important legal factors to take into consideration. Specific surrogacy laws will vary depending on where you live and your circumstances. This can make things tricky when you’re just starting out, which is why we’ve written this legal surrogacy guide as an introduction to what you need to know.

While we have done our best to provide as much information as possible, you should always talk to qualified surrogacy attorney first. This article cannot, and should not, be taken as legal advice.

Step 1: Contact an Attorney to Learn the Surrogacy Laws in Your State

Contacting a surrogacy attorney and learning the laws in your state should be your first step. The surrogacy legal process can be confusing. And right now, some of your biggest questions about surrogacy probably center around finding out whether it’s legal in your state and which laws apply to your situation.

  • In the United States, there are no federal surrogacy laws.
  • Instead, surrogacy laws are governed by each individual state.
  • Because every state is unique and every case is different, it’s crucial that you start your journey with an experienced surrogacy attorney who can walk you through the legal surrogacy

If you already know a good surrogacy attorney, that’s the best place to start. But if not, you can always reach out through our free contact form so that we can point you in the right direction. You and the intended parents or surrogate you’re working with will each need your own attorney.

Once you get in touch with an attorney, they and your surrogacy specialist will walk you through the legal surrogacy process in your state. Depending on where you live, they’ll be able to explain how to best proceed.

Step 2: Establish a Donor Contract, if Needed

During the legal surrogacy process, there are many intended parents who choose to use their own sperm and egg to create an embryo for gestational surrogacy. On the other hand, there are those who will need to work with an egg and/or sperm donor for IVF.

If you are using a donor for your surrogacy journey, you will need to establish a donor contract.

  • Essentially, this contract ensures that the donor has no legal rights to claim parentage.
  • If you choose a donor from a fertility professional, then the donor might already have signed a donor contract or something similar prior to donating.
  • But if you are reaching out to a family member or a friend, then you’ll still need to have your attorney draft a contract for you.

Step 3: Create Your Surrogacy Contract

Drafting the surrogacy contract will happen after you match with the intended parents or surrogate. It’s considered one of the most important parts of the legal surrogacy process, as it protects everyone’s interests.

The people involved in drafting the surrogacy contract will include:

  • The intended parents
  • The surrogate
  • Your spouse (if applicable)
  • Your respective attorneys

The legal surrogacy contract will cover a wide range of topics that deal with financial and social responsibilities. Some of the topics you’ll discuss include:

  • Making sure that the surrogate’s partner is on board and understands the process
  • How much financial compensation the surrogate will receive
  • What kind of surrogacy and pregnancy related expenses the intended parents will cover
  • How much contact both parties plan to share during and after surrogacy
  • The surrogate’s responsibilities during the pregnancy, like abstaining from drugs and alcohol
  • Who will be present at prenatal appointments and at birth
  • What would happen in the event of a medical complication
  • What would happen if termination or selective reduction is required
  • And more

It’s important that both parties talk openly and honestly about what their expectations are.

The respective attorneys will act as each party’s ally and will ensure the contract is fair and balanced. That’s why it’s so important to work with an experience surrogacy attorney who can advocate for your best interests.

Because of this, it can take some time for finalize your surrogacy contract. Although it took a while, Alicia felt safe knowing that her attorney was doing everything they could to advocate for her:

“It was a long process,” she said. “It took a while for the attorney to approve certain things that the agency had sent back, which made me feel really protected because he had my best interests at heart every single time.”

The legal surrogacy process can be overwhelming at times. But it will all be worth it in the end. If you haven’t had the chance to look for your own attorney yet, the American Academy of Assisted Reproductive Technology Attorneys (AAARTA) offers a directory of legal surrogacy experts, or your surrogacy agency can refer you to a trusted lawyer.

Step 4: Complete a Pre-Birth Order, if Available

A pre-birth order establishes the intended parents as the baby’s legal parents. It also allows the child to be released to them directly from the hospital.

Whether or not the intended parents will be able to establish a pre-birth order depends on the state in which they are completing the legal surrogacy process.

Step 5: Complete a Post-Birth Parentage Order or Adoption, if Needed

Depending on whether a pre-birth order is an option in your circumstances, the intended parents may need to need to take extra steps to establish their parental rights in surrogacy.

Your attorney will determine which type of adoption or other legal measure needs to be taken in your specific situation.

What Will My Surrogacy Process Look Like?

As always, your first step should be to talk to a surrogacy agency or attorney. Surrogacy laws are determined by:

  • The state you complete your surrogacy in
  • The type of surrogacy you pursue
  • And more

If you’re looking for a well-known surrogacy attorney, you can reach out to us through our free contact form. One of our specialists can help you find a great one in your area. While the legal surrogacy process can seem overwhelming at first, a great attorney can walk you through the process from start to finish.