Surrogacy Law Overview: Can a Surrogate Keep the Baby?

Over the past three decades, thousands of babies have been born thanks to surrogates in the United States. However, surrogacy laws across states and nations vary, so questions remain over the legal and scientific relationships between surrogates and the children they carry.

Growing Generations has helped build families for more than 20 years, and we’ve compiled answers to these frequently asked questions based on our experience and expertise.

Does a surrogate transfer DNA to the baby?

Gestational surrogates − those who are not biologically related to the child or children they are carrying – do not transfer their DNA to the baby or babies they carry. The embryo that is implanted in a surrogate via in vitro fertilization contains DNA from an egg from an intended mother or egg donor that has been fertilized by the sperm of an intended father or sperm donor.

Can a surrogate keep the baby?

Growing Generations requires that all of its surrogates and intended parents enter into surrogacy agreements, and our surrogates all come from states which are surrogacy-friendly. In addition, a parentage judgment or parental order will be issued during the surrogacy process by a court of law or a governmental entity which will terminate any rights the surrogate may have. Because laws differ across each U.S. state, it’s important to have legal counsel you can rely on throughout the surrogacy process. All Growing Generations clients will have comprehensive coverage from professionals who will walk you through all the legal aspects of the surrogacy process.

Where is surrogacy legal?

See the map below which identifies the states where surrogacy is either illegal or where surrogacy contracts are unenforceable (identified in red). Unless a change in law occurs, Growing Generations will not propose matching intended parents with surrogates located in these states.

Further, each and every potential intended parent and surrogate pairing is pre-approved by a law firm specializing in this area. This legal review is completed before any information relating to the intended parents or surrogate is exchanged and before the parties are introduced. Among other things, the legal review will confirm a judgment of parentage designating the intended parents as the sole and rightful parents will be recognized and accepted in the state where the surrogate will deliver the intended parents’ child.

Growing Generations only works in surrogacy-friendly states (over 40 states and counting!), and we’re proud to say all of our clients have successfully received parentage judgments (either pre-birth judgments, post-birth judgments, or other form of parental order) establishing their parental rights.

Dr. Kim Bergman

Kim Bergman, PhD, a licensed psychologist of 26 years, has specialized in the area of gay and lesbian parenting, parenting by choice and third party assisted reproduction for over two decades. Dr. Bergman has created a comprehensive psychological screening, support and monitoring process for Intended Parents, Surrogates and Donors. She is the co-owner of Fertility Counseling Services and Growing Generations and is a member of the American Society for Reproductive Medicine, the American Psychological Association, the Los Angeles County Psychological Association, the Lesbian and Gay Psychotherapy Association, and the Gay and Lesbian Medical Association. She is on the national Emeritus board of the Family Equality Council. Dr. Bergman writes, teaches and speaks extensively on parenting by choice. Along with co-authors, she published “Gay Men Who Become Fathers via Surrogacy: The Transition to Parenthood” (Journal of GLBT Family Studies, April 2010). Dr. Bergman’s is the author of the upcoming book, Your Future Family: An Essential Guide to Assisted Reproduction (Red Wheel Press 2019). Dr. Bergman created her own family using third party assisted reproduction and she lives with her wife of 35 years. Her two daughters are in college.