What Is the Legal Process Surrounding Surrogacy?

The laws surrounding surrogacy vary widely from country to country. In some places, surrogacy is well-established and legal, which can help smooth your surrogate journey. In others, the law is less established, or murky, but a surrogate journey may still be possible. In still others surrogacy is illegal, and those who pursue surrogate journeys can be subjected to legal action.

Of course, you will need to work closely with a lawyer who is well-versed in the laws surrounding surrogacy in your country—or in whatever country you work in if you decide to pursue international surrogacy. But it is still a good idea for intended parents to have a good understanding of the laws surrounding surrogacy in your country before attempting to undergo the family-building process. Here are some of the top legal considerations to keep in mind:

Enter into a surrogacy contract

In order to make sure everyone involved in a surrogacy journey is protected—including you, your surrogate, your egg and/or sperm donor, and your baby—you will want to create and enter into legally binding contracts. You’ll draft a contract between you and your surrogate, and potentially with your donor(s) as well if you need one.

Some countries have laws on the books that specifically permit surrogacy contracts—and consider them legally binding. Others have no laws on the books. In this case, a contract with your surrogate may or may not be legally binding. Still, other countries criminalize the practice of entering into a surrogacy contract.

In some countries, the legal status of surrogacy contracts can even vary by locality. In the United States, for instance, each state has a different set of practices and laws that govern the practice. Your surrogacy attorney should help you work only in jurisdictions that are friendly to the surrogacy process. If you pursue international surrogacy, it’s important to note that you will need a lawyer in both your home country and the country where your baby will be born to help you complete the process.

List a guardian

As part of the legal process, you will also need to list a guardian for your child—in the off chance that something were to happen to you during the surrogate journey that left you, and your partner if you have one, unable to assume legal parenting rights over your child. This guardianship is temporary, and will only take effect if something were to happen to you and/or your partner. You will want to think through who in your life, be it a family member or friend, would be able to quickly assume guardianship over your child if the need were to arise.

Establish your parental rights

As part of the legal surrogacy process, you will need to establish your parental rights—and ensure that your surrogate has no legal ties to your child. Typically, this process will need to occur through a court order by a judge. In some places, you will be allowed to become the legal parent of your child and ensure your surrogate has no ties, before the birth. This is called a pre-birth order (such systems are available in the USA, Georgia, and Argentina for example). In other places, you will obtain legal parentage of your child after the birth. Depending on where you are, this process can take several weeks or months. Regardless of whether you establish parentage before or after your baby’s birth, your attorney will help you conduct this process.

Secure needed documentation

Following the birth of your baby, your lawyer will assist you in filling out all the needed paperwork to secure the birth certificate. If you are pursuing international surrogacy, your attorney will also help your baby secure citizenship and passports in the country where you underwent your journey, as well as in your home country. You will need this documentation in order to travel home with your child. Your lawyer can attempt to expedite these processes as much as possible, depending on the country. But generally, you should expect this process to take at least a couple of weeks following the birth of your baby.

Register your baby’s birth in your home country

You will also need to be familiar with the legal process in your home country. Some countries will require you to visit your home country’s consulate to officially register the birth of your child. Your country’s consulate should also be able to help you obtain the documents you need to travel home. You will also need to work with a lawyer in your home country, who will help you navigate the process of getting you and your child home.