When pursuing surrogacy, it is essential to know what the laws are in the State in which the Surrogate resides and to enter into a surrogacy arrangement only in those states that are "surrogacy-friendly". In some states, paid surrogacy can result in civil as well as criminal penalties to the Surrogate while in others, the law is unsettled and there is no established policy. Fortunately, there are some states (such as California) in which surrogacy is well-established and the courts look to the intent of the Surrogacy Contract regardless of the genetic contributors (i.e. who provided the egg and sperm) to determine parental rights. It is essential that all third party assisted reproduction arrangements (surrogacy and egg donation) be memorialized by a written contract entered into by the fertility assistant (Egg Donor or Surrogate) and the Prospective Parents that clearly sets forth the intent of the parties. Specifically, that any child born as a result of the assistance of an Egg Donor and/or Surrogate is the legal child of the Prospective Parents. A well-drafted contract will help to avoid a potential legal dispute as to the maternity and/or paternity of the baby conceived as a result of such assistance.

When pursuing surrogacy, the question asked most frequently by Prospective Parents is, "What if the Surrogate changes her mind and wants to keep the baby?" While this may be cause for concern with respect to adoption, provided the surrogacy arrangement takes place in a surrogacy-friendly state, this need not be a concern.

There are two separate legal aspects to a surrogacy arrangement: (1) the Surrogacy Agreement and (2) establishment of parentage.

The Surrogacy Agreement

Having a well-drafted and comprehensive surrogacy agreement is critical not only to establish legal parentage, but also to help ensure a successful surrogacy arrangement. It should be drafted by an attorney experienced in such contracts in the state in which the contract is entered into. Some of the matters that should be addressed include: the identification of the parties, the state in which the contract is entered into, the amount and terms of compensation to the surrogate, the rights and duties of the parties, and provisions that address the conduct of the surrogate prior to and after achieving pregnancy. Some states require court approval of the Surrogacy Agreement (currently, California does not). States may pass legislation at any time changing the procedures, therefore, we will verify the requirements of the state in which the Surrogate will deliver.

It is recommended that the Surrogacy Agreement be drafted upon completion of medical and psychological screening of the Surrogate as the Surrogate may not commence the use of injectable medications until there is a signed Agreement.

Baby Miracles will provide referrals to experienced professionals to both Prospective Parents and to Surrogates.

Pre-Birth Order/Establishing Maternity and Paternity

CALIFORNIA: In California, no adoption or step-parent adoption is necessary to establish the Prospective Parents as the legal parents of a baby born with the help of a surrogate mother, regardless of the genetic contributors (whose egg and/or sperm were used). The Prospective Parents' names will be placed on the birth certificate as the legal parents, provided a pre-birth court order (PBO) is obtained in a timely fashion. If not, the name of the surrogate (and her husband, if she is married) would appear on the birth certificate, which would require a separate legal proceeding to change it. It is for this reason that we start this process mid-pregnancy. At that time, we provide the necessary information to the Prospective Parents' attorney, who will prepare the court documents, obtain the signatures of the parties and medical professionals, and file the documents with the Court. The attorney will make a court appearance (neither the Prospective Parents nor the Surrogate need attend) and obtain the PBO also known as the Judgment of Maternity and Paternity. It is our procedure to obtain a certified copy and forward it to the appropriate hospital personnel well in advance of the birth, to ensure there are no last minute issues and the Prospective Parents can focus on the birth and their new baby.

OTHER STATES: Procedures vary state to state and will be verified prior to registration if Prospective Parents will be choosing a Surrogate in a state other than California.