Answers to Legal Questions from a Leading Fertility Attorney

When you choose gestational surrogacy, your baby may or may not have a biological connection to you. Gestational surrogacy is possible using donor egg and donor sperm in several states. So whether your baby will carry your DNA or not is an important consideration before you match with a surrogate.

Newborn Advantage works with intended parents from all over the world, guiding them through the gestational surrogacy process from start to finish. The legal issues surrounding surrogacy are complex, but with help from an experienced attorney, navigating legal hurdles becomes much easier.

To help intended parents learn more about gestational surrogacy law, we spoke with Richard B. Vaughn, Esq., Founding Partner of the International Fertility Law Group, Inc. Vaughn served as Chair of the American Bar Association – Family Law Section’s Assisted Reproduction Technology Committee from 2013 – 2018, and has a deep understanding of gestational surrogacy and the law.

Q: How much do fertility laws vary from state to state, and around the world?

A: Quite a bit. Assisted reproductive technology, or ART, is a relatively new and rapidly changing field that has changed the definition of family and parenting. For that reason, laws governing reproduction and parentage have not caught up to the technology in many parts of the world and in some U.S. states, and legislation and case law vary widely from jurisdiction to jurisdiction.

Q: What if intended parents live in a different state or country than their surrogate? Do they need to understand the surrogacy laws in both regions?

A: Yes. It is important that intended parents and their attorney become familiar with and consider carefully the laws in the state where a surrogate will give birth, the laws in the country or countries where the child’s citizenship will be registered, and the laws where the intended parents and their family plan to reside, before entering into any surrogacy arrangement.

Q: The legal issues surrounding gestational surrogacy can be complicated. What’s the best way for intended parents to get started—especially with international surrogacy?

A: Because the laws are so different across the world, it’s a good idea to consult with an international fertility attorney early in the surrogacy process—ideally, before you are matched with a surrogate. Any attorney experienced in fertility law will understand the issues surrounding gestational surrogacy, and can answer questions and guide intended parents in making the best decisions for their families and avoiding unexpected legal hurdles and heartaches.

Q: What steps can intended parents take to ensure they’re recognized as legal parents of their child?

A: In ART law, the “gold standard” is for intended parents to be legally recognized as the baby’s parents from the moment of birth, with both intended parents’ names listed on the birth certificate. Most states allow intended parents to obtain a court order establishing them as legal parents before their baby is born. However, not all states and countries accommodate this process. Some will not issue an order of parentage until after the birth. And of course, with other countries, the law is different as well. Your attorney can help you navigate the legal procedures in your state or country, as well as your surrogate’s place of residence, to ensure you’re recognized as the legal parents as soon as possible.

Q: How does sexual orientation affect the legal process with surrogacy?

A: This varies greatly depending on the country or state. For example, if the intended parents are a gay male couple from a country outside the U.S., it may be necessary to list the surrogate as mother on an initial birth certificate in order to comply with the laws of their home country. In this case, we would then obtain an amended birth certificate after the birth, without listing the surrogate and only listing the biological father. The same might apply to a same-sex married couple, depending on what country they live in, or in what country or countries they hold citizenship.

Q: What advice do you have for intended parents who want to avoid legal issues with surrogacy?

A: Each situation is unique, and the most important thing is that you are represented by legal counsel who knows and understands the laws in the jurisdiction where your baby will be born and the jurisdiction where you and your family will reside.

IFLG International Fertility Law GroupNewborn Advantage is a leader in gestational surrogacy around the world, and we specialize in working with same-sex couples and singles, professional singles, infertile couples and cancer patients. We match intended parents with surrogates faster than most surrogacy agencies, usually within two weeks. Our goal is to give your newborn an advantage at birth and in life. Working with a fertility attorney gives you a legal advantage, too. To learn more about international fertility law, Esq., visit the International Fertility Law Group Inc.’s website.

Interested in surrogacy?

Contact Newborn Advantage today to learn how we can help you find the right surrogate, and connect with a legal professional who will protect your interests. We look forward to hearing from you.