Skip to main content

Surrogacy and Legal Parentage: Establishing Your Rights as Parents During and After Surrogacy

Establishing legal parentage is a critical part of the surrogacy process. Intended Parents need piece of mind knowing they will assume full custody of their kids at birth; surrogates want to know that they won’t be stuck raising a kid that isn’t theirs. Establishing the Intended Parents parentage in surrogacy arrangements can be a complex legal process with many variables and considerations. The specific laws and procedures vary by jurisdiction, so it’s essential to consult with an attorney who specializes in reproductive law to navigate the process properly.

If you’re new to surrogacy, it’s crucial that you understand the distinction between gestational surrogacy and traditional surrogacy. In gestational surrogacy, the surrogate has no genetic connection to the child as the embryo is created using the Intended Parents’ genetic material or donor gametes. In traditional surrogacy, however, the surrogate uses her own egg, making her the biological mother. Traditional surrogacy is inherently more complex emotionally and legally, and is sometimes prohibited in many places where gestational surrogacy is permitted. This is not to say traditional surrogacy can’t be practiced responsibly when all parties on the same page. It’s more to say proceed with caution when exploring a traditional surrogacy arrangement and work with very reputable attorneys on safeguards for all parties involved. In gestational surrogacy, the Intended Parents are nearly always recognized as the legal parents from birth in many jurisdictions, assuming the necessary legal steps are taken. In traditional surrogacy, parental rights can be more complicated and may require a formal adoption process and a process by which the surrogate surrenders her assumed parental rights.

Before embarking on any type of surrogacy arrangement, Intended Parents and the surrogate should ideally enter into a detailed and legally binding surrogacy agreement. A surrogacy contract outlines the roles, responsibilities, and expectations of all parties involved. It may cover issues like compensation, medical decisions, and potential contingencies (e.g., what happens if the pregnancy has complications). Unfortunately, not all locations consider surrogacy contracts enforceable, so it’s important to research your state’s laws ahead of time. Surrogacy laws vary significantly from state to state and country to country. Some jurisdictions are surrogacy-friendly, while others have restrictive or even prohibitive laws. A lawyer with expertise in reproductive law can help you understand the laws in your jurisdiction and guide you through the process accordingly. If egg or sperm donors are used, separate agreements with the donors may be necessary to clarify parental rights and responsibilities.

The Birth Certificate

The issuance of the child’s birth certificate is a critical step. In gestational surrogacy, depending on the jurisdiction, the Intended Parents’ names can usually placed on the birth certificate. However, in some cases, additional legal steps may be required.

It’s best to get the advice from a qualified attorney in terms of how to proceed with establishing parentage.

Pre-birth Orders or Judgments

 This option is generally available to Intended Parents in states with surrogacy-friendly laws. Before the child’s birth, Intended Parents in certain jurisdictions can petition the court for a pre-birth order or judgment that recognizes them as the legal parents of the child. This order is generally granted based on the genetic connection to the child or based on the specifics of a surrogacy agreement. If granted, the pre-birth order allows the hospital to list the Intended Parents’ names on the birth certificate immediately upon the child’s birth.



Post-birth Orders or Judgments

In some jurisdictions, pre-birth orders are unavailable and post-birth orders are a viable option for establishing parental rights in surrogacy. After the child’s birth, Intended Parents petition the court for a post-birth order or judgment. This process may involve proving the surrogacy agreement, genetic connection, and that the child was conceived through assisted reproduction. If granted, the court issues an order to amend the birth certificate to include the Intended Parents’ name(s).


Adoption may be necessary in some jurisdictions, especially in the case of traditional surrogacy, if surrogacy agreements are unenforceable or if the Intended Parents have no genetic connection to the child. The process may require a home study, background checks, and court proceedings.

Declaration of Parentage or Paternity

This option may be available in jurisdictions that do not have specific surrogacy laws but allow for the establishment of parentage through legal declarations. Intended Parents file a declaration of parentage or paternity with the court, providing evidence of their intent to be the child’s legal parents. If approved, this declaration can lead to the amendment of the birth certificate to reflect the Intended Parents’ names.

International Surrogacy and Immigration Laws

For international surrogacy, additional considerations related to immigration laws and consular processing may apply. Intended Parents may need to work with immigration authorities and consulates to ensure the child’s legal status and obtain necessary travel documents.

It’s important to emphasize that the availability and specifics of these legal avenues can vary widely based on your jurisdiction’s laws and regulations. Consulting with an experienced reproductive law attorney is essential to navigate the legal requirements and options specific to your situation. They can help you understand the best course of action for establishing parentage and securing the child’s legal rights and your own as intended parents in a surrogacy arrangement. If the surrogacy arrangement involves parties in different countries, it adds a layer of complexity due to international laws and immigration issues. Legal counsel experienced in international surrogacy is essential.

Parentage Disputes

Thankfully, surrogacy parentage disputes are rare thanks to the comprehensive legal measures and thorough vetting processes that are typically undertaken before a surrogacy arrangement is finalized. The rarity of such disputes can be attributed to the diligence and foresight exercised by all parties involved, including the Intended Parents, surrogate, and legal professionals.

Surrogacy arrangements are often preceded by meticulous legal contracts that outline the roles, rights, and responsibilities of each party. These contracts serve as a critical foundation, addressing issues such as financial agreements, medical decisions, and potential contingencies. Clear and comprehensive surrogacy agreements are crucial in preventing disputes as they provide a framework for all parties to understand their obligations and expectations. This often legally binding document helps ensure that everyone involved is on the same page from the outset.

A rigorous screening process is typically conducted for both the Intended Parents and the surrogate. This includes medical evaluations, psychological assessments, and background checks. These assessments aim to identify potential issues or conflicts that might arise during the surrogacy journey. Carefully selecting individuals who are emotionally and mentally prepared for the process greatly reduces the likelihood of disputes down the road.

Most jurisdictions have specific laws and regulations governing surrogacy arrangements. These legal frameworks help establish the Intended Parents’ rights and responsibilities, often ensuring that they are recognized as the legal parents. These laws offer a level of predictability and security, further decreasing the chances of parentage disputes.

The rarity of surrogacy parentage disputes underscores the importance of careful planning, thorough legal agreements, and stringent screening processes in the surrogacy journey, ultimately prioritizing the best interests of the child.

Psychological screening of surrogates is a crucial step in the surrogacy process to ensure that they are mentally and emotionally prepared for the journey ahead including underscoring the legal parentage rights of the Intended parents.

When Intended Parents and surrogates match, it’s critical to ask detailed questions during the interview including digging into motivations, expectations, and understanding of the surrogacy process.

Surrogates and sometimes Intended Parents are usually required to complete a comprehensive psychological evaluation conducted by a licensed mental health professional, such as a psychologist or psychiatrist. Surrogates are also typically asked to provide information about their mental health history, including any previous diagnoses or treatments for mental health conditions. This information is essential for evaluating potential risk factors. A mental health professional may inquire about the surrogate’s support system, including her family and friends. Having a strong support network can be crucial during the surrogacy journey, so the evaluator assesses whether the surrogate has appropriate emotional support in place.

Perhaps most critically, a mental health professional will evaluate the surrogate’s understanding of her role, expectations, and boundaries. Clear communication about these aspects is essential to prevent misunderstandings and conflicts later on, including parentage disputes. In some cases, surrogates may receive ongoing psychological support or counseling throughout the surrogacy journey to address any emotional challenges that may arise.

The goal of psychological screening is to identify any potential psychological or emotional issues that might impact the surrogate’s ability to fulfill her role effectively and maintain a healthy surrogate-parent relationship. It also helps ensure that surrogates are entering into the surrogacy arrangement with a clear understanding of the emotional aspects involved. The results of the evaluation are typically shared with all parties involved to promote transparency and informed decision-making throughout the surrogacy process.


FAQ – Parentage in Surrogacy Arrangements

Why is establishing legal parentage important in surrogacy?

Establishing legal parentage is crucial for both intended parents and surrogates. Intended parents need the assurance that they will assume full custody of their child at birth, while surrogates want to avoid any responsibility for a child that isn’t biologically theirs. It provides legal clarity and ensures that all parties involved understand their roles and responsibilities.

What’s the difference between gestational surrogacy and traditional surrogacy, and why does it matter legally?

In gestational surrogacy, the surrogate has no genetic connection to the child, making the intended parents the legal parents in many jurisdictions. In traditional surrogacy, the surrogate is biologically related to the child, which can complicate legal matters. Traditional surrogacy is more complex emotionally and legally and is often prohibited in many places where gestational surrogacy is allowed.

What should be included in a surrogacy agreement, and are they always enforceable?

A surrogacy agreement should outline roles, responsibilities, and expectations of all parties involved, covering issues like compensation, medical decisions, and contingencies. However, the enforceability of surrogacy contracts varies by location, so it’s important to research your state or country’s laws ahead of time.

How is parentage typically established in surrogacy arrangements?

The process of establishing parentage can vary, but common legal avenues include pre-birth orders or judgments (where available), post-birth orders, adoption (if needed), and declarations of parentage or paternity (in certain jurisdictions). Consult with a reproductive law attorney for guidance specific to your situation and location.

Why are surrogacy parentage disputes rare?

Surrogacy parentage disputes are infrequent due to comprehensive legal measures, thorough screening processes, and adherence to surrogacy laws. Clear surrogacy agreements, rigorous psychological screening, and legal frameworks help minimize disputes, prioritizing the child’s best interests.

How are surrogates psychologically screened?

Surrogates typically undergo psychological screening, including interviews and evaluations by licensed mental health professionals. This process assesses their mental health, emotional stability, support systems, coping skills, and understanding of their role. It helps ensure they are emotionally prepared for the surrogacy journey and reduces the risk of disputes.


Please note that the specific legal procedures and requirements can vary based on your jurisdiction, so it’s essential to consult with a qualified reproductive law attorney to navigate the surrogacy process properly.


surrogacy without an agency - signup for Surrogacy Place's online surrogacy matching program now

Bridget Myers

Bridget Myers grew up in small town in Maryland. She started her career as a substitute teacher before meeting the love of her life and moving to the suburbs of Chicago. She has a passion for dogs and painting. Bridget got involved in Surrogacy Place after researching surrogacy for her best friend. Since joining the team at Surrogacy Place, she has developed a passion for advocating on behalf of Intended Parents and surrogates and doing her part for meaningful reform in the industry.