State Laws & Surrogacy- Understanding Parental Rights

Surrogacy is surging in popularity. According to the American Society for Reproductive Medicine (ASRM), there were just over 2,800 births via surrogacy in 2015. Compared to the 738 surrogate births reported just 11 years earlier, there is little doubt that families of choice are becoming a more accepted and accessible path to parenthood across the United States.

While some state laws, like California, make it a fairly seamless process to use a surrogate to carry a child, other states are still working with laws about parenthood that are now quite outdated. The ways in which families can be made has continued to evolve, but lawmakers have not been as expedient to update verbiage about parental rights. The result for many considering surrogacy has been confusion over the simple question of, “who are the legal parents?” 

Many states have no legal framework surrounding surrogacy while others have muddled statutes. In some states, the law states that the woman who delivers the child will become the mother despite any biological connection (or lack thereof) to the child. To combat this issue, many fertility lawyers file what is known as a pre-birth parentage order. This document fills two primary goals: it frees the surrogate of any legal responsibility for the child and names the intended parents as the legal parents of the child. Both of these designations happen at the moment of birth.

Other states have similar statutes for reassigning legal parentage, but the process is not completed until after the child is born. In this case, the document is titled a post-birth parentage order. In any case, paperwork determining parentage will still be drafted prior to the birth, leading to the same result at the time of the birth; the intended parents are the custodians and parents of the child at the time of birth.

These orders protect both parties in a surrogacy situation. While intended parents often worry that a surrogate may refuse to return the child post-birth, surrogates often fear that parents will refuse to take the child at the time of birth. In cases where parentage can be addressed and put into a legally binding contract prior to birth, each party has their emotional needs protected.


In addition to concerns over parental rights, same-sex parents have additional legal issues to consider along their path to parenthood. For example, until the Supreme Court ruled that all states must recognize and allow same-sex marriage, gay couples had limited access to surrogates. Prior to this ruling, gay couples could not work with surrogates in states that limited surrogacy contracts to married couples only. Despite this ruling, certain states remain closed to same-sex parents. As of 2017, Louisiana still sought to limit same-sex parents from using surrogacy to create a family by limiting surrogate contracts only to intended parents who are able to biologically supply both the sperm and egg used to create the embryo. This also impacts heterosexual couples who need to work with an egg or sperm donor.

As the lawmakers struggle to keep up with the science of reproductive medicine, more and more politicians are being forced to address these issues. The result is often drafting legislation that seeks to either legalize the practice of surrogacy, often with strict guidelines, or to create a firm law outlawing the practice. These ever changing laws, which continue to vary from state to state, highlight the importance of working with a surrogacy agency and fertility law firm in order to ensure that you are only matched with surrogates who reside in states that have current, legal framework to support your unique family.

To read more on the differences in pre-birth and post-birth orders, please click here