Parentage Actions and Prebirth Orders

The first step usually takes 1-2 weeks to draft the surrogacy agreement.  After that, we expect to hear back from the gestational carrier's attorney in about a week. Following this, we enter a phase of negotiating and finalizing the agreement, which involves some back-and-forth communication. It's important to note that in some states, documents need to be signed in the presence of a notary public.  This extra step may add some time to the overall process, as coordinating schedules and getting documents notarized can introduce some variability in how long it takes.

Pre-birth order states require a court to grant an order naming the  intended parents as parents prior to the surrogate giving birth. If the surrogate is in a pre-birth order state, the intended parents' attorney typically starts the pre-birth order drafting between 13 and 20 weeks of pregnancy. The pre-birth order can take a couple months to be prepared, reviewed,  signed by all parties, and then granted by the court. You want to have sufficient time for the pre-birth order to be ready in case there is an early birth.

Public policy favors that children have two parents in their lives. So  one parent, even if they have nothing to dow with the child, cannot  voluntary lose his parentage status. The mother may have full physical  or legal custody, but the child could still stand to inherit or gain  social security benefits from a completely absent father. One way to remove the father is through adoption, where one person is willing to adopt the child and take the place of the father while the other parent remains on the birth certificate. However, with the costs of the home study procedure, this process can be  expensive.Another way would be to do a parentage action, which would likely require a DNA test for one father to replace another

The parties are free to use California law as a matter of choice of law  in a contract. California courts have jurisdiction to determine legal parentage in surrogacy cases if either the intended parents or the surrogate resides in California. It is also possible to file a parentage action in a county for reasons  such as place of embryo transfer, place of birth, and where the contracts are executed.  Not all states accept a surrogacy parentage order from another state. So consult with a knowledgeable ART attorney about what choice of law is best for your situation.

No. Intended parents cannot force their surrogate to have an abortion as it is a violation of the surrogate's bodily autonomy. The surrogacy agreement will outline what the parties agree to regarding abortion and fetal reduction. The parties may agree that the surrogate will follow the intended parents' decision regarding abortion under certain circumstances while she maintains the right to preserve her own life and health. If the surrogate breaks the contract, she may liable under the contract, but ultimately the surrogate makes her own bodily decisions. It is important to go over these sections carefully with your lawyer before signing the contract.

In the event the intended parents divorce or separate and the surrogate is pregnant, the Gestational Surrogacy Agreement will continue as planned. Most agreements will say the custody rights to the child will be resolved by the agreement of intended parents or by a court of competent jurisdiction. The gestational carrier and/or her spouse will not have any parental rights or claim to the child if a separation or divorce occurs between the intended parents.

If you're a same-sex couple using surrogacy, both of you can be listed as parents on your child’s birth certificate—whether that means two moms, two dads, or another configuration that reflects your family.

To make that happen, you’ll need to obtain a parentage judgment from the court. This is the legal order that directs the state to officially recognize both of you as parents from birth. Once the judgment is in place, your names appear on the birth certificate right away—without delays or extra legal forms down the line. Keep in mind that the process may vary by state. But with the right legal support, your family will be protected and fully recognized.

In some states like Washington and California, it doesn’t matter. In  other states like Illinois you need to have a genetic connection to be  recognized as a parent.

During the covid-19 pandemic, this became a commonplace occurrence for intended parents who were abroad. Assuming a judgment is in place, a hospital will recognize the intended parents as the parents.  However, the intended parents are not present and have not advised the  hospital, the child will be reported as abandoned to child protective  services. The attorney for intended parents can prevent this by preparing a power of attorney giving another person (sometimes someone from the agency) the power to make medical decisions, complete the birth certificate and  discharge the baby from the hospital.  Intended Parents should be sure to let their attorney know if they can’t attend the birth so a power of attorney can be prepared.

When a surrogate is pregnant, she usually receives monthly compensation while pregnant. If she has a miscarriage, the compensation will stop. She does not need to pay it back if the miscarriage was not her fault. The agreement will describe what happens in the event of a miscarriage. If it is not the surrogate’s fault, she may receive a fee for the  miscarriage and for subsequent surgery.  Whether the contract ends or not also depends on the contract. In some contracts, the contract automatically terminate unless the parties agree  to continue. In other contracts, a miscarriage does not cause the  contract to terminate.