Surrogacy Law

While most judges feel more comfortable issuing judgments in cases where both the intended parents and the surrogate are represented by counsel, they may grant a judgment if a surrogate is not represented. It is in both your and your surrogate’s best interest to have an attorney knowledgeable about surrogacy law explain the agreement.

If your travel plans require an expedited passport, please notify our office immediately after the birth. We will be more than happy to help guide you in the best way to obtain your child’s passport. You should allow at least three to five business days for this process.

You must complete a US State Department application to obtain a passport for your child. This application can be completed online or downloaded and printed from the United States Department of State’s website, starting at this page here. Along with the application, you must also provide passport photos and a certified copy of the child’s birth certificate.

You can obtain an application for a newborn social security number at the U.S. Social Security Administration’s website, at this page: http://www.ssa.gov/online/ss-5.pdf. For additional information about newborn social security numbers, please visit: http://www.ssa.gov/pubs/10023.html. Please check with our office to discuss your specific situation, as the process and necessity for a social security number can differ based on how the birth certificate is prepared and/or can differ for international clients.

You will need to make a written request to obtain your child’s social security number/card. Please check with our office to discuss your specific situation, as the process and necessity for a social security number can differ based on how the birth certificate is prepared and/or can differ for international clients.

Most State Vital Records offices are required to record information about the person who physically gave birth, but this is placed only on the confidential portion of the birth certificate record (usually only in electronic records, not the printed, short-form birth certificate). This is done for statistical purposes only to track the number of births throughout the different regions/counties/cities of the state. The birth certificate you will obtain (sometimes referred to as the short-form birth certificate) will not show this information.

If an expedited birth certificate is required (e.g., for international clients who need the birth certificate to obtain the child’s passport), please be sure to notify the birth certificate clerk at the hospital when you are completing the hospital’s birth certificate worksheet. Expedited birth certificates can usually be obtained within approximately two weeks after birth, depending on the State and County, and you must pick it up in person.

Your child’s birth certificate will not be automatically sent to you. Generally you will have to make a written request (see #1 above).

The birth registrar at the hospital will provide detailed instructions on how to obtain your child’s birth certificate, but generally you will have to make a written request. Should you have any additional questions after receiving the hospital’s instructions, IFLG will be happy to further assist you.

The parental establishment finalization process generally takes about three to four months from start to finish in pre-birth states, and in those states requiring a post-birth filing or hearing, the matters are completed generally within a week of birth, although some exceptions apply.

If your baby were born in another state, then confirming your parental rights to your baby would fall under the jurisdiction of that state’s courts. Because each state operates quite differently in regard to parental establishment and assisted reproduction law, we suggest that you contact us immediately if you believe there is a possibility that your baby may be delivered in another state. International Fertility Law Group has experienced reproductive law attorneys available throughout the United States.

Your baby must be born in the state in which the parental establishment judgment was issued in order for the judgment to be recognized by that state’s government agencies, hospitals, etc.; however, there are a few exceptions to this rule, and some state vital records offices will accept a court order issued by another state. This varies from state to state. Please check with our office to discuss your specific situation. International Fertility Law Group has experienced reproductive law attorneys available throughout the United States.

In some states, the original birth certificate will reflect your names. Other states may allow the names of one or both parents to appear on the birth certificate; it may also be possible to obtain an amended birth certificate. The laws vary from state to state. Please check with our office to discuss your specific situation. International Fertility Law Group has experienced reproductive law attorneys available throughout the United States and abroad.

Surrogacy agreements are the first stage in a two-step process. The purpose of the surrogacy agreement is to allow all parties to state their intentions and their responsibilities to one another. The agreement will clearly state that the surrogate does not intend to parent any resulting child(ren) and does not wish to have physical or legal custody of any resulting child(ren). The surrogacy agreement will also define the rights and responsibilities of the intended parents.

In most cases, the parties are not required to make an appearance in court for a parental establishment confirmation hearing. An IFLG attorney will appear on your behalf and answer any questions from the court. If you and the surrogate have agreed, we may be able to represent both of you at the hearing. If your presence is required at the hearing, we will notify you.

While there are some similarities, the parental establishment confirmation process is not an adoption, even if the parental order is issued post-birth. Surrogacy parental orders do not generally require a home study and are completed in a fraction of the time typically required for an adoption.

Should you elect to bypass the parental establishment confirmation process, then your surrogate (and her husband, if she is married) may still be presumed to be parent(s) of the child (i.e., the surrogate’s and her husband’s rights are not terminated, as they normally would be by the judgment that is issued). Accordingly, your parental rights will not be secured or established, and your name will generally not be placed on the birth certificate of your child.

The parental establishment confirmation process aims to establish your rights as parent(s) and terminate the rights your surrogate (and the surrogate’s husband, if she is married) may be presumed to have under law. The process generally begins once you are safely into the second trimester and in the fourth month of the pregnancy. At that time we will schedule a consultation with you to go over the next steps of the process, discuss the documents that will be prepared, and begin collecting information from you, your surrogate and your IVF physician that we will need to insert into the parentage documents. In the following month, we will draft and file documents for your case in the appropriate state agency or court. In some states, we are allowed to file the matter before the birth and obtain a “pre-birth order”; in others, state law requires that we file for the parental order after the birth and attend a court hearing. International Fertility Law Group has experienced reproductive law attorneys available throughout the United States. The judges who review these types of parental establishment cases are familiar with the subject matter and are generally on a first-name basis with our attorneys. Barring any extraordinary circumstances, a pre-birth order is generally issued two to five weeks after the matter is filed, and in “post-birth” states a post-birth order is generally issued the same day as the post-birth hearing. Certified copies of the parental order confirming your legal rights as parent(s) to your baby are generally available to you shortly thereafter.

Because all of our work is completed via email, fax, phone/video conferencing, FedEx and U.S. mail, you never need to come to our office, although of course you are very welcome to visit us any time.

In gestational surrogacy, the surrogate is not biologically related to any resulting child(ren). This type of surrogacy involves eggs (from an intended mother, or an egg donor) fertilized in vitro (“in vitro fertilization,” or “IVF”). Once fertilized, these embryos are transferred to the uterus of the surrogate.

In traditional surrogacy, the surrogate’s own eggs are used to conceive the child, so she is biologically related to the resulting child(ren). The procedure used to establish the pregnancy is generally referred to as “intrauterine insemination,” or “IUI,” although IVF and embryo transfer can also be used with a traditional surrogate.

The purpose of the surrogacy agreement is to allow each party to state their intentions and to clearly state that the surrogate DOES NOT intend to have parental rights to the child and DOES NOT wish to have physical or legal custody of the child. The second stage of the process requires a parental order, most often in court, during which any rights of the surrogate (and her husband, if she is married) are terminated and the intended parents’ parental rights are confirmed.

We offer single-price, all-inclusive service packages, as well as reasonable hourly rates. Please call our office for further pricing information.

Most IVF physicians’ offices require a surrogacy agreement to be in place before your surrogate commences injectable medications. It is always best to have a surrogacy agreement in place as soon as possible.

The finalization and execution of your surrogacy agreement can take three to four weeks, depending on how quickly the drafts of the agreement are reviewed and approved. We start working on the agreement once the surrogate is medically cleared, and we generally are able to produce a draft of your surrogacy agreement within three to four days of receiving the signed attorney services agreement and the necessary information regarding your match with your surrogate. We must then account for the time needed for you to review the agreement, as well as the time needed for the surrogate to review the agreement.

Preparing and finalizing your surrogacy agreement involves several steps. The following briefly describes the process from start to finish:

• We’ll first send you a written attorney services agreement to review. It will explain the services we will provide and the cost. Sign and date it, and send it back to our office with your payment.
• Once we have received your signed attorney services agreement, we’ll start work.
• If you intend to use a surrogate, then once you have a match, and your surrogate is medically cleared to proceed, we will prepare the first draft of your surrogacy agreement and send it to you for review. Read it carefully, and call or email us with your questions, comments or suggested revisions. To avoid delay, it is a good idea for you to plan to review the agreement and contact us within two days after you receive it.
• Next, the surrogate will receive your approved draft of the agreement for review with an attorney. If the surrogate requests any changes, we’ll review them and send you a redlined version, showing the requested changes. We will advise you accordingly, negotiate any revisions as needed, finalize the agreement, and send it out to all parties with signing instructions.
• Once we receive signatures from all parties, we will issue a “legal clearance” letter to inform your IVF Physician that you are legally cleared to proceed with your cycle.

If you will be using an egg donor as well as a surrogate, please see our Egg Donation FAQ page for a step-by-step explanation of how egg donor agreements are prepared.

Each state has different laws regarding surrogacy. It is important for you to be aware of not only the laws regarding surrogacy, but also the laws regarding how to establish yourself as parent within the state where your baby will be born. International Fertility Law Group has experienced attorneys throughout the United States.