Safeguarding Legal Clarity: your Guide to Surrogacy Laws and Regulations

Understanding Surrogacy Laws in the USA: Navigating Variations by State

There is not a unique federal surrogacy laws in the United States, so how you pursue a surrogacy arrangement will depend on what kinds of processes are allowable in your state. There are also several different aspects to surrogacy laws that you’ll need to be aware of before getting started. Our professionals will answer all your questions about the legal aspects and the local practices, according the State where you are living.

However, there may be a difference between the laws regulating surrogacy in a certain state and how they are actually enforced. Especially in states where there are no gestational surrogacy laws, lawyers have to be creative about protecting their clients in surrogacy agreements. In addition, some judges may be more lenient that others in interpreting certain surrogacy laws. The Surrogates Club will ensure that you start your gestational pregnancy in the best environment possible, with a clear legal framework.

Where is Surrogacy Legal in the USA? Navigating State-Specific Regulations

Surrogacy is legal in almost every state in the United States (47 of them recognize surrogacy), but with some variations of certain aspects. For example, even though some states (like California or Florida) are subject to less-friendly surrogacy laws, the relationship with local judges allows for a more liberal interpretation of the law, making surrogacy in some states just as easy or even easier than in states with more liberal laws. Thus, if you are considering becoming a surrogate, it may be useful to speak with an experienced surrogacy professional. We encourage you to contact us if you want to get more information on the legal situation of your state.

Nebraska, Michigan and Louisiana are the only states that do not recognize surrogacy and consider surrogacy contracts as “illegal”. Thus, if you live in these states, you will not be able to become a surrogate at this time.

Legal Aspects of Surrogacy Compensation: Understanding Financial Guidelines for Surrogates

Most surrogacy professionals today encourage base compensation for surrogates because of the time, inconvenience, and risks associated with embryo transfer, pregnancy, and delivery. However, some states completely outlaw any kind of compensation for surrogates, while others place a limit on how much money can be given to reimburse a surrogate for her pregnancy-related expenses. If you don’t follow the proper restrictions of your state, you could face criminal charges. It is then very important to be aware of the regulations in the state where you want to become a surrogate.

Key Legal Concerns in Surrogacy and Their Nuances

- The surrogacy contact

Every surrogacy contract is unique, shaped by the expectations of both the surrogate and the intended parents, as well as the process of its development and negotiation. We, along with many experts in the field of surrogacy, strongly recommend against attempting to draft your own contract. Instead, collaborating with a well-established surrogacy program like our Club is advised. Additionally, as a surrogate, you will benefit from ongoing independent legal representation provided by a qualified legal professional. This professional should possess experience with gestational carrier contracts and hold licensure in the relevant state of your surrogacy. This legal support extends throughout the creation of your surrogacy contract and during your pregnancy. It is crucial that the legal practitioner remains independent from the intended parents counsel to avoid potential conflicts of interest. Furthermore, the cost of such legal counsel should not be borne by the surrogates, but rather is typically covered by the intended parents. This ensures a fair and equitable distribution of responsibilities.

But what exactly does a surrogacy agreement entail? In essence, it outlines your core rights and responsibilities throughout the surrogacy process, such as :

- Surrogate compensation : How much will the surrogate mother receive? Which expenses are covered? What additional remuneration is provided for unique circumstances, such as invasive procedures or bedrest?

- Health and safety : What are the surrogate’s obligations during pregnancy? How will she safeguard her well-being and that of the developing child?

- Risks and liability : Contingencies for unforeseen complications are addressed. Who assumes responsibility, and what obligations arise in such instances?

- Contingencies : Countless hypothetical scenarios should be considered by both intended parents and gestational carriers. A well-crafted surrogacy agreement assists in this comprehensive preparation.

- The Pre-birth order

Another significant aspect of surrogacy law revolves around what is known as the pre-birth order. This legal document serves the purpose of transferring parental rights from the surrogate to the intended parent immediately upon the birth of the child. Thus, it is especially important for the intended parents, but it also concerns the surrogate. Typically, the pre-birth order is submitted to the court approximately 4 to 7 months into the surrogate's pregnancy. The specific requirements can vary between states, but generally, you will need to include a medical document from the physician confirming the embryo transfer from the biological mother to the surrogate. Additionally, a statement from the surrogate family stating their relinquishment of all legal rights to raise and parent the child is usually necessary. In states that are supportive of surrogacy, the process of applying for and obtaining the pre-birth order tends to be straightforward. However, in other states, intended parents may need to wait until after the birth to establish their legal parental rights. While the legal procedure is somewhat similar in these states, there could be a waiting period of 3-5 days before parents can apply for the post-birth order. This might also involve a court appearance accompanied by an attorney.