Surrogacy is becoming an increasingly common way for individuals and couples to start or grow their families. However, there’s still a patchwork of surrogacy laws across the country. In fact, a number of states still don’t recognize surrogacy under the law. This can make it difficult for both intended parents and surrogates to protect their rights as they enter into this critical relationship.
As we discussed in a previous post, Massachusetts only this year updated its laws to address surrogacy, in-vitro fertilization (IVF) and other types of assisted reproduction. The Massachusetts Parentage Act makes our state one of the more surrogacy-friendly locations across the country.
A surrogate’s state laws are typically the ones that apply
It’s crucial for those seeking to become parents with the help of a surrogate to understand the relevant laws not only in their own state but in the state where a potential or chosen surrogate lives. The laws in the surrogate’s state are the ones, for the most part, that will be relevant to the arrangement.
Intended parents in states with no legal protections often look for surrogates in neighboring (or even more distant) surrogacy-friendly states. On the other hand, prospective parents in surrogacy-friendly states like Massachusetts need to be cautious about choosing a surrogate who resides in a state that doesn’t legally recognize the process.
It’s still possible to create an agreement that clearly lays out the terms and expectations of all parties even if there are no surrogacy laws. However, it can be risky – particularly if it ever needs to be enforced. Further, not all surrogacy agencies and law firms will work with those living in these states. A surrogate may also have a difficult time getting their own legal representation, which is critical to putting a valid and binding agreement in place.
Knowing what kind of parentage order is possible
It’s critical for parents to get the appropriate parentage order based on what the surrogate’s state law allows. Some allow “pre-birth” parentage order. In others, it’s necessary to wait and file a post-birth order. In still others, adoption may be the only alternative.
Of course, every situation is highly unique. That’s why it can be helpful for intended parents to get experienced legal guidance, regardless of where they live, before they start down the path to surrogacy.