Building your family through surrogacy is exciting, but a few widely believed myths can create real legal risk if they go unchallenged. Since the Massachusetts Parentage Act took effect on January 1, 2025, the Commonwealth has one of the clearer, more modern legal frameworks for surrogacy in the country. Even so, misunderstanding how that framework actually works can leave intended parents exposed at exactly the moment they most need certainty. Here are some of the misconceptions that surrogacy attorney Melissa Torto hears most often, and what the law actually requires.
Misconception 1: The Surrogacy Agreement Alone Establishes Your Parental Rights
A thorough, properly negotiated surrogacy agreement is essential, but it is not the legal mechanism that makes you your child’s parent. Under the Massachusetts Parentage Act, that happens through a judgment of parentage issued by the court. Any party to a valid gestational surrogacy agreement can petition for this judgment before or after birth, and it’s the judgment, not the contract, that vests parental rights and responsibilities and confirms that the surrogate is not a legal parent. Treating the agreement as the finish line rather than the starting point is one of the most consequential misconceptions intended parents can hold.
Misconception 2: Legal Steps Can Wait Until After the Baby Arrives
Because Massachusetts allows judgments of parentage to be sought before birth, waiting until delivery to begin the legal process means giving up one of the law’s most valuable protections. A pre-birth judgment allows intended parents to be recognized as legal parents from the moment of birth, with their names on the birth certificate and no mention of the surrogate. Pursuing this proactively, on the right timeline for your specific agreement, matters far more than most intended parents realize going in.
Misconception 3: Gestational and Genetic Surrogacy Are Treated the Same Way
In gestational surrogacy, the surrogate has no genetic connection to the child. In genetic (sometimes called traditional) surrogacy, the surrogate’s own egg is used, making her the child’s biological mother. Massachusetts law addresses both, but genetic surrogacy agreements require court validation before conception in order to be presumptively enforceable, and courts may take a more cautious approach to these cases. Assuming the two paths involve identical legal steps can lead to serious missteps in timing and documentation.
Misconception 4: Any Signed Agreement Is Automatically Enforceable
The Massachusetts Parentage Act sets out specific requirements for a surrogacy agreement to be valid and enforceable, including medical evaluation and mental health consultation for the surrogate, mental health consultation for the intended parents, and independent legal counsel for every party to the agreement. An agreement that skips these requirements risks being unenforceable exactly when its enforceability matters most.
Misconception 5: Once Parentage Is Established, There’s Nothing Left to Do
Even after a judgment of parentage is secured, some families still need to address related matters, including updating estate plans and beneficiary designations, obtaining a Social Security number for the child, and resolving interstate or international issues if the birth takes place away from where the intended parents reside. These steps aren’t automatic, and overlooking them can create complications well after the legal parentage question is resolved.
Protect Your Family With Informed Guidance
The Massachusetts Parentage Act gives intended parents a genuinely strong legal framework, but only when its requirements are followed correctly and on time. Attorney Melissa Torto helps intended parents throughout Massachusetts understand exactly what the law requires at each stage, so a misconception never becomes a costly gap in your parental rights.
Call the Law Office of Melissa L. Torto, LLC at 617-812-9974 or schedule online for a consultation with a knowledgeable Massachusetts surrogacy lawyer. We provide honest answers, protect your parental rights, and help build the legal foundation your family deserves.