The legal framework underpinning US surrogacy

One of the main reasons so many international intended parents choose the USA for surrogacy is the established and secure legal framework. The intention of both the surrogate and the intended parents as to who will be the parents is recognised in almost every US state, and the intended parent/s recorded on the US birth certificate.

It is important for parents engaging in surrogacy in the USA to involve an attorney specialising in assisted reproduction law to guide them through the steps of putting an agreement in place and securing parentage in the relevant state to ensure the legalities are all properly managed.

US surrogacy or ‘gestational carrier’ agreements

After they are matched, a surrogate and her intended parents will put in place a legal agreement which sets out all the elements of what is being agreed, including intention as to legal parenthood, the specifics of the fertility treatment envisaged, what expenses and compensation will be paid in what circumstances, any mutual agreements during treatment, pregnancy and after birth, and a range of many other issues. Since surrogates in the US are almost always gestational surrogates (i.e. not providing their own eggs) these agreements are typically called ‘gestational carrier agreements’ rather than surrogacy agreements (which is a little more precise).

US attorneys support that process (typically with a different attorney representing the surrogate and the intended parent/s) and then give the fertility clinic ‘legal clearance’ which means confirming that the clinic can proceed with an embryo transfer with confidence that the legalities have been properly set up.

Learn more about the US attorneys and other professionals involved in a US surrogacy journey.

Egg and sperm donation agreements

If the intended parents are conceiving with eggs or sperm from a donor, there may also be separate agreements between them and the donor/s.  As with the surrogacy agreement, donor agreements help to confirm who everyone intends to be the legal parents, as well as the financial arrangements and any agreed mechanisms for future contact.

Find out more about egg donation as a part of US surrogacy.

Parentage proceedings and US guardianship

Depending on the law in the state where the child is born, there may also be an additional legal process to confirm parentage. In some states, the intended parents apply for a pre-birth court order during the pregnancy; in others a post-birth court order which is granted immediately after the birth; and in others there is an administrative process. Specialist US attorneys can help manage this process to secure an appropriate US birth certificate which reflects the intended parent/s as the child’s parent/s. It is typically a straightforward process given that the law in the US is well set up to support surrogacy arrangements.

In addition, attorneys may advise parents and/or surrogates to put in place guardianship and other documents. This is usually to ensure that contingency plans are in place if something goes awry, for example if the intended parents cannot get to the US for the birth or there is an unexpected death or incapacitation.

Securing your status as a family in the UK

Although the legal process in the US is typically robust and front-ended, UK law unfortunately does not recognise US court orders or US birth certificates automatically. In the UK the surrogate will be treated as the child’s legal mother and if she is married her spouse will be the legal father or other legal parent.

If the intended parents are British and/or live in the UK, they will normally make a separate post-birth court application in the UK to secure legal parenthood and British nationality in the UK. Most UK parents (whether they live in the UK or overseas) apply for a parental order under the Human Fertilisation and Embrology Act 2008, though if they are not eligible (for example they do not have a biological connection with the child) other orders are available, including adoption.

Find out more about UK parental orders from NGA Law.