How legal parentage will be established for any child who is born from assisted reproduction should be mapped out at the very beginning of the arrangement. Doing so is absolutely crucial to ensure that the intended parent(s) will have full parental rights to the child, and that the gestational carrier or surrogate (and the spouse if any) will have no parental rights or responsibilities. How legal parentage gets established generally depends on the laws of the state where the child will be born. This means that the parties should (1) consult and retain legal counsel in that state, and (2) establish where the child will be born as part of the agreement, so that everyone can plan accordingly.
- Pre-Birth Orders. Some states allow for courts to issue pre-birth orders in gestational carrier arrangements. These “PBOs” are obtained prior to the child’s birth, and they order that the intended parent(s) will be recognized as the child’s only legal parent(s) and will be placed on the child’s birth certificate. In some cases, if a baby is going to be born in a state that does not issue PBOs, but the intended parents live in a state or the embryo transfer procedure is taking place where a PBO can be obtained, then a PBO might be obtained from one state and then be domesticated and given full faith and credit in the state of birth. That process might require some additional legal steps after the birth given the differences in the state laws.
- Post-Birth Parentage Orders. A post-birth parentage order is similar to a pre-birth order except that it is obtained after the birth instead of prior to the birth. The post-birth parentage order also establishes the intended parent(s) as the child’s only legal parent(s), and orders them placed on the child’s birth certificate. Genetic testing might be required in order to obtain this order. Also if one intended parent is not a genetic parent, then oftentimes a step-parent adoption will be done (as to the non-genetic spouse) in conjunction with getting this order. Although there will be a gap in time between when the baby is born and legal parentage is established, the intended parents still take custody of the child immediately from birth and are responsible for the child. The gestational carrier or surrogate can execute a health care power of attorney (or similar) document in the hospital to ensure that the intended parents get to make all medical decisions for the baby.
- Administrative Processes. In certain cases, some states have established administrative processes that allow intended parents to establish legal parentage for their child and place their names on the birth certificate, and for surrogates (and their spouses if any) to ensure they are relieved of any parental rights and responsibilities after birth. These often involve forms and/or affidavits that get filed directly with a state’s vital records office, so that the state knows who to list on a child’s birth certificate. When these processes are used, the parties do not get a court order. Therefore, same-sex couples always should make sure to check with their attorney before relying completely on an administrative process, as it is advisable for same-sex couples to always obtain a court order to ensure full and secure protection of their parentage.
- Issues with No Genetic Relationships. In many states, when the intended parent or parents have no genetic connection to the child (because a donated embryo or donor egg and sperm are used), an adoption will be required. In the others, a parentage order (pre- or post-birth) might be possible based on the intent of the parties and not the genetics.
- International Intended Parents. Intended parents from other countries who contract with gestational carriers from the United States should not only consult with a U.S. attorney, but also with an attorney in their home country. Foreign intended parents must know ahead of time what specific documents they will need to return home with their child. They should also consult with a qualified immigration attorney in their home country to make sure that they will not have any issues establishing citizenship or permanent lawful status for the child in their home country. They may also want assistance from a U.S. immigration attorney, to ensure they obtain the right U.S. visa for themselves for their visits to the United States throughout the surrogacy process.