Surrogacy in the United States is a popular for intended parents who live abroad. Reasons parents work with surrogates in the United States includes strict regulation over reproductive doctors in the U.S., high success rates with many U.S. fertility clinics, favorable laws in many states, and U.S. citizenship granted to any child born in the United States via surrogacy.
In many foreign countries, surrogacy is not legal. This leads intendeds parents to come to the United States to permissibly work with a surrogate to build their family.
When international intended parents come to the United States to work with a surrogate, from the legal perspective, they must consider two major legal frameworks. It is important that parents consider these legal issues mentioned at the beginning of their journey before they enter into a surrogacy contract.
What is the State Laws on Surrogacy?
International intended parents must consider the state law that will apply to their surrogate located in the United States since each state has different laws (if any laws at all). Intended parents should consult with a surrogacy attorney in the United States to determine the legal process involved.
Some states have favorable and well established laws regarding surrogacy such as Florida, California, and Illinois, to name a few. Some states have no laws at all regarding surrogacy. Some states do not enforce surrogacy contracts or find that compensated surrogacy is illegal.
Typically, the laws of the state where the birth of the child is born will control the process of how the parents will be placed on the birth certificate and the legal framework for the contract. It is important for intended parents to consult with a U.S. surrogacy attorney so they know what legal steps are involved to name them as the legal parents and what is permissible or required in the surrogacy contract.
Some states finalize parental rights of the intended parents by way of a pre birth order. Some states provide for a post birth legal process. Some states handle surrogacy arrangements through adoption proceedings. The legal process for surrogacy in the United States varies greatly between the states which is why consulting with a U.S. surrogacy attorney before starting the process is critical.
What is the Intended Parents' Home Country Laws on Surrogacy?
Once the baby is born and the parents return home to their country, the question becomes - will the intended parents be deemed legal parents of the child back home just because they the legal parents in the United States? Not always.
Many foreign countries requires additional legal proceedings to finalize the parental rights of the parents in their home country and to further terminate the surrogate's parental rights abroad - even if both of these steps were handled legally in the United States. For example, intended parents from the UK must take additional legal steps in the UK after the baby is born or they risk not being recognized as the legal parents of the child in the UK (and in turn, giving legal rights to the surrogate in the UK). Some countries, such as Argentina, have less involved processes such as a registration process for the child. The laws abroad regarding surrogacy are always changing and must be confirmed with an experienced surrogacy lawyer.
It is imperative that intended parents consult with a surrogacy attorney back home before the surrogate is pregnant so they are aware of the legal steps, if any, required to take when they return home. Involving an international surrogacy lawyer is important at the beginning of the process so they can work in partnership with the Untied States surrogacy attorney so the U.S. attorney obtains the proper documents required in the home country.
For example, some countries may require a step parent adoption. Some countries requires an apostle stamp on the U.S. birth certificate. Some countries have limits on the amount of compensation paid to a surrogate. There may be additional steps required in the U.S. for same sex couples, single intended parents and in other scenarios. If the United States surrogacy attorney is not aware of the foreign requirements or restrictions, it could cause an issue for the intended parents when returning home with the child.
Parents should also consult with an attorney back home to discuss setting up an estate plan for when the child is born. This includes determining the documents required for the U.S. equivalent of a will, trust, appointment of guardian and the like based on what is permitted in the home country.
Consult with a United States Immigration Attorney
Intended parents living abroad who come to the United States for surrogacy will need to be in the United States for certain periods of time for the process. It is important parents ensure they have the proper documentation in place so they can legally stay in the United States as required.
For example, international intended parents will need to come to the U.S. for their medical screening process and the creation of their embryos for the transfer. Once the surrogate is pregnant, the intended parents will also need to come to the United States to attend the birth, take the baby home and apply for the passport for the child.
The intended parents may want to be here for other periods of time like attending important medical appointments like the embryo transfer, first heartbeat and gender ultrasound. It is possible that the first embryo transfer is not successful which could request multiple visits to the United States. Also, should the child have medical complications that require hospitalization, parents may need to stay in the United States for an extended period of time until the child is released from the hospital. Another variable is the amount of time it takes to obtain the new birth certificate as the intended parents cannot travel home with the child until issued.
International intended parents need to make sure they have the proper legal paperwork (i.e. proper Visa, etc.) so they can travel and stay in the U.S. for the required periods of time.
Surrogacy involves many steps. As shows above, international intended parents must consider the U.S. laws, their home country laws, and immigration laws at the beginning of their surrogacy journey. Having the proper consultations at the beginning of the process helps ensure a smooth process from the beginning to returning home with a baby!