Legal Issues related to Surrogacy:
Our founder and director Steve Litz can refer you to a number of different attorneys to provide specific legal advice based on your situation.
[NOTE: SMI is not a law firm. SMI will be happy to refer you to knowledgeable attorneys who can discuss the legal ramifications of surrogacy with you. You should always feel free to talk about legal issues with your own attorney as well.]
31 states have laws that in some fashion address surrogacy. Three have actually seen fit to criminalize paid surrogacy. They are MI, NY, WA, as well as Washington, D.C. (although D.C., because of the way its surrogacy statute is written, allows compensated gestational surrogacy)
The other states have laws that say surrogate contracts are invalid, that set up elaborate mechanisms to approve contracts, or that regulate the payment of fees to surrogates.
In the AI program, your lawyer goes to court before the child is born and obtains a court order saying that the husband (or single man) is the father of the child, and directing that his name go on the original birth certificate.
After the child is born, the surrogate signs consent forms that either terminate her parental rights, leaving the man with sole custody of the child, or that allow the wife of the couple to adopt.
That step-parent adoption generally takes place in the couple’s state, unless they reside in one of the states where surrogacy is illegal. In that case, that adoption can occur in another state.
In the embryo transfer program, a similar pre-birth court order is obtained, except that this order says that the couple are the child’s biological parents, and their names go directly on the original birth certificate. No adoption is necessary since they are the biological parents. In either case, the couple (or individual) will take the child directly from the hospital back home with them.
In the embryo transfer program with an egg donor, the pre-birth court order usually lists the father, and does not list a mother at all unless you are from one of the international countries that doesn’t recognize surrogacy, in which case the surrogate’s name may remain on the birth certificate.
After the child is born, the wife of the couple then adopts the child just as in the AI program. If there is no wife, then the surrogate’s parental rights are terminated leaving the male with sole custody.