Understanding the Legal Side of Surrogacy: 5 Steps

By Stephanie M. Caballero, Esq.
Published: April 18, 2018
Key Takeaways

When you understand what to expect from a legal standpoint before starting your surrogacy journey, you’re helping to increase the chances of a smooth process.

If you are considering using surrogacy to grow your family, it is important to know up-front what to expect from a legal standpoint. Doing so can help protect you from unforeseen surprises. Don’t let the thought of dealing with legal matters overwhelm or terrify you, once you become familiar with these 5 steps, you’ll feel prepared to start this exciting journey!

1. Consult with a Surrogacy Attorney

Consulting with a skilled, experienced surrogacy attorney is one of the first things you should do. This is especially important if you are planning on hiring a surrogate in a different country than yours. Talk to a surrogacy attorney and an immigration specialist from your home country to make sure you take any needed steps and ensure your parental rights will be recognized when you bring your baby back home.

Even within the U.S., different states have different laws. Your attorney can help you understand how surrogacy is handled in that state, alerting you to any potential issues that should be addressed as the relationship progresses.

2. Create the Surrogacy Agreement

The next step is to enter into a surrogacy agreement. In California and many other states, both parties must be represented by their own (separate) attorneys throughout the entire surrogacy process. In California, the surrogacy agreement must be signed and notarized before the surrogate starts injectable medication.

In general, here’s what you can expect:

  • Your attorney will prepare a draft agreement for you that includes both parties’ intentions, rights, and obligations.
  • Then, you’ll likely have a phone consultation, so your attorney can walk you through the agreement and identify any needed changes.
  • Your attorney will send the revised draft to the gestational carrier’s attorney who will go through it with her.
  • Sometimes, there are back-and-forth negotiations to get to the final agreement.
  • When both parties are confident the document outlines what they want it to do, signatures are notarized.
  • The attorney’s office maintains the original copy in case it’s needed later for the parental establishment phase.

Of course, every agreement is different to reflect the specific terms you and the gestational carrier negotiate. While the entire agreement is important, there are some provisions you should carefully review and consider. Those include provisions requiring the gestational carrier and/or her husband to cooperate with any legal procedures needed to establish you as intended parents.

You should also make sure the financial side of the agreement is accurate, including your payment obligations as an intended parent, various fees you are required to reimburse or pay the gestational carrier, etc. These may be covered already if you’re working with an agency. If there isn’t an agency involved, it’s even more important to specifically define how things like lost wages, childcare reimbursement, travel reimbursement, etc. will be handled. California law requires that funds be held by an attorney in a trust account or by an independent escrow company. Your legal agreement should clearly establish these requirements, as well as the timing of payments.

Finally, your agreement should be clear about how long it will last, and how the agreement can be terminated (by either side) without penalty.

3. Parental Establishment Process (Judgment of Parentage)

Your attorney will play a key role in helping you obtain a Judgment of Parentage, which is a court order officially documenting that you are the legal parents of the child born through surrogacy. In some states, you can obtain this order before the child is born; in others, you will need to wait until after his or her birth.

This legal document is important for many reasons, including facilitating listing you as the child’s legal parents on the baby’s birth certificate. It’s also the document that gives you full legal custody and control for your child, including the ability to make medical decisions for him or her.

As with the surrogacy agreement, both you and the surrogate will review this paperwork with your respective attorneys. After that, state laws and processes will determine whether an in-person or telephonic hearing is required, but the idea is to demonstrate to the court that all parties intend to list you as the legal parents. Local courts often have their own unique requirements; your attorney should help limit or avoid unnecessary delays.

4. Ensure the Birth Certificate is Accurate

Ideally, the intended parents’ names will both be put on the birth certificate from the start. However, this isn’t always the case, especially in states that require a post-birth Judgment of Parentage. If the gestational carrier’s name appears on the birth certificate, it will need to be amended.

For some international surrogacy arrangements involving same-sex couples, foreign attorneys advise clients to simply list one parent’s name on the birth certificate. At the parents’ discretion, there may be a desire to amend the birth certificate at a later date to reflect both parents.

5. Obtain Travel Documents and Apostille (if Necessary)

Finally, after the baby is born, you will need to pick up the birth certificate and apply for a passport for your child. Be aware that these steps can take some time; as a rule of thumb, you should plan to stay for at least one month after the baby’s birth date.

It’s also important to note that certain countries require legal documents to be authenticated by a local Recorder and subsequently Apostilled by the Secretary of State. Your attorney or the surrogacy agency can help you with these requirements.

Know What to Expect for a Smoother Experience

Expanding your family through surrogacy is an amazingly rewarding experience. When you understand what to expect from a legal standpoint before starting the process, you’re helping increase the chances of a smooth process – from the first discussions with your attorney until you bring your beautiful baby home.

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Stephanie M. Caballero, Esq.

Stephanie M. Caballero, Esq. and her firm, The Surrogacy Law Center, PLC, have represented over 3,500 clients, including Intended Parents, Surrogates and Donors from all over the world in Surrogacy, Egg, Sperm, and Embryo Donation arrangements. Stephanie and her firm specialize exclusively in Family Formation and Reproductive Law.

Stephanie had her own journey through infertility. After eight years of treatments including more than 10 artificial insemination procedures, three surgeries, three miscarriages, and 13 IVF procedures, she finally realized her dream of having children when a surrogate carried her twins. Stephanie also had to adopt her twins because the state where they were born did not recognize surrogacy.

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