In United States, Surrogacy is an entirely legal process that involves a person agreeing to carry and give birth to a child on behalf of someone else or a couple. The person carrying the child is called the surrogate, and the people who will receive the child are called the intended parents. The process of becoming a surrogate is not so straightforward, as it involves a lot of legal considerations.

In this blog, we are going to be bringing you up to speed on the legal process of surrogacy in the United States. Whether you want to become an intended parent or you’re considering becoming a surrogate, you have to understand the intricacies of the legal process. Let’s dive in!

The laws that govern surrogacy in the United States vary from state to state. Every state has its rules, some rigid and some relaxed, but regardless, surrogacy is legal in America. There are two different types of surrogacies, and they are the traditional surrogacy and gestational surrogacy.

Types of Surrogacy

Traditional Surrogacy

This was the first type of surrogacy there was before the advancement of medicine. Traditional surrogacy involves the use of the surrogate’s egg to conceive the child. In this type of surrogacy, the surrogate still has ties to the child, so the legal implications are different from that of gestational surrogacy.

Traditional surrogacy is commonly achieved through artificial insemination, so typically the surrogate is still the mother of the child. Legally the surrogate in traditional surrogacy is considered the mother of the child and still has parental rights over the child.

For the rights to be given up, a legal agreement has to be drawn up so that those rights can be legally terminated. There has to be agreement from both parties for the legal termination to be successful.

Gestational Surrogacy

Gestational surrogacy was made possible thanks to medical advancements. It involves the use of a donor egg or the intended mother’s egg and the intended father’s sperm or donor sperm. It is the most common type of surrogacy now because it erases the legal and emotional ties between the surrogate and the child. In this case, the surrogate is simply a carrier.

In the legal agreement of gestational surrogacy, the surrogate is not considered the legal mother of the child so only the intended parents are listed on the birth certificate as legal parents.

Legal Considerations for Surrogacy

Different states have different laws for surrogacy, so it is important to know what laws govern the state you want to carry out the procedure. Some states have stringent laws, while others do not even have any laws, so there’s more freedom throughout the process. To make your understanding of how surrogacy works easier, we’ll separate the legal standing of the different states into three categories.

The first category will be States that allow and regulate surrogacy. In these states, the intended parents and the surrogate have to enter into a legal agreement before the entire process even begins. The legal agreement will clearly state the rights and responsibilities of both parties, and it will outline information about compensation, medical care, and child custody.

The second category is states that allow surrogacy but have limited regulations. States that fall into this category require some court approvals and procedures to be carried out before the process begins. States like this do not necessarily have surrogacy laws in place, so both the surrogate and the intending parents remain unsure of the legal backing they are meant to have.

The third category is states that do not allow surrogacy entirely. States like this have negative views of the entire surrogacy process and may consider it criminal with penalties if people participate.

Intended Parents

For intended parents, the legal process of surrogacy typically begins with finding a surrogate who is willing to carry the child. You can do this through a surrogacy agency or trusted medical professionals like us. These experts will provide you with a list of potential surrogates and allow you to choose from the list.

Some intended parents come with their own surrogates. It may be a willing friend or family member, but regardless the same laws still apply. Once you have selected the surrogate, the legal steps come next, so the agreement or contract that outlines the terms of the surrogacy is drawn up.

The medical tests come next, and the intended parents and the surrogate will be required to carry out these tests. These tests will ensure that both parties have the ability to raise a child. Mental, physical, psychological, and genetic tests are carried out to ensure everyone is fit for the process. Even criminal background checks will be carried out for all parties involved.

Surrogates

The legal process for surrogates typically includes screening to check emotional and psychological capacity. This can include medical and psychological evaluations. After this comes approval and the signing of contracts.

Once a surrogate has been accepted by the intended parents, the signing of legal agreements will begin. The agreement will include all the compensation, health care, and custody details, to avoid any hassle in the future.

Surrogates usually receive medical care, emotional care, and sometimes physical support from the intended parents.

Legal Issues Involved

Parental rights are some of the most debated issues when it comes to surrogacy. Many states give complete legal parental rights to the intended parents even if the surrogate is the biological mother, but other states do not. In some states, the surrogate will still have parental rights over the child, especially if it was traditional surrogacy.

The best way to work this out is to work with experienced experts in the field who can provide you with trusted lawyers and support throughout the process. You must draw up a legal agreement and sign it before the process begins. Learn about the laws in your state if you’re considering surrogacy to avoid any future issues.

Many intended parents face custody issues and parental rights issues with their surrogates because an explicit legal agreement was not drawn up. To solve this issue, some states ask intended parents to get a pre-birth order that allows them to become legal parents with all the parental rights even before the child is born. Doing this will ensure that the entire process goes smoothly without hurdles.

In essence, you need an experienced attorney and a medical representative or surrogate agency to help you through the entire process. The legal process of surrogacy is different for every state, but as of 2023, only three states in the United States consider surrogacy illegal. The states are Louisa

The legal process of surrogacy can be complex and confusing, particularly given the wide variation in surrogacy laws across different states. Intended parents and surrogates should be aware of their legal rights and responsibilities and should work with experienced attorneys and surrogacy agencies to ensure a smooth and successful surrogacy journey.

Despite the legal complexities, surrogacy can be a life-changing experience for both intended parents and surrogates. It can provide a path to parenthood for those who may not otherwise be able to have children.

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