The Not-So-United States: Legal Considerations for International Intended Parents 

Written by Guest Experts Lisa Brant and Lynn Levitan, Founders of The Baby Lawyers

So, you’ve decided to have your surrogacy journey in the United States – great choice! The United States is rightfully recognized as the safest and most expeditious venue for surrogacy, which is why Intended Parents from around the world come here to build their families. With a well-established infrastructure of professionals to guide you through your surrogacy journey, the United States offers security and certainty.  

That being said, there are a few potential obstacles that should be considered before International Intended Parents embark on their path to parenthood.

“Surrogacy-Friendly” Is A Relative Term

While the United States is known for having progressive and leading-edge surrogacy laws, it is important to understand that there are no federal/nationwide laws governing surrogacy. Rather, surrogacy journeys are controlled by State law. Just as States have cultures and political leanings that differ wildly, so too do their approaches to surrogacy law. 

Some States have complex statutory schemes explicitly governing everything from surrogacy contract requirements to the parentage establishment procedures, while other States rely exclusively on caselaw and custom and practice. Regardless of the type of legal framework, International Intended Parents should look for States that provide predictable outcomes and streamlined processes. Likewise, certain States should be avoided altogether, either because their laws are not compatible with International Intended Parents (e.g. New York requires Intended Parents to be residents) or they provide no reliable legal path for consistently obtaining the all-important parentage orders. 

Moreover, not all States treat all Intended Parents equally. Some states, like California, are family formation leaders, allowing Intended Parents to assert parental rights regardless of their sexual orientation, marital status or genetic relation to the embryo. Other states are not so hospitable! It is, therefore, imperative to make sure that you match with a surrogate whose State’s laws suit your family composition. For instance, it is important to know if the State where your surrogate will give birth has a marriage or genetic requirement for parental establishment. Or whether you may legally side-step these types of conditions by establishing parentage in another jurisdiction, such as the State where the embryo transfer occurs.  

Having an expert in your corner who knows the intricacies of the United States legal landscape will provide you with peace of mind that your journey will be smooth and legally sound. 

Timing is Everything

Notably, even if your match poses no legal roadblocks, there may be practical impediments that International Intended Parents must consider. For instance, while many States issue birth certificates within a week or two of birth, other States can take as long as four months to issue birth certificates. 

Without a birth certificate in hand, you will not be able to obtain your baby’s passport to bring your baby home. This means a lengthy post-birth stay in the United States! 

Similarly, other States require potentially time-consuming legal procedures, such as obtaining a post-birth judgment to enable Intended Parents to be named on their baby’s birth certificate or having to appear before a judge to obtain parentage rights. While it may be less expensive to contract with a surrogate in one State versus another, the cost savings may quickly evaporate if you are required to stay in the United States for six months!  

Make Sure to Properly Insure

Another aspect of surrogacy in the United States that often surprises International Intended Parents is the complexities and costs associated with obtaining healthcare coverage for their surrogate’s pregnancy. In contrast to many other countries, the United States does not have universal healthcare. Furthermore, many insurance carriers will not cover surrogacy-related pregnancy expenses or will assert significant liens against a surrogate’s compensation, which could add tens of thousands of dollars to your bottom line. If your surrogate does not have a surrogacy-friendly health insurance policy of her own, you will need to purchase a policy for her. 

Many states require, and it is always best practice, to have any insurance policy you are hoping to use for your journey reviewed by an insurance expert.  

You should also consider purchasing a medical insurance policy to cover your baby while you are in the United States because, with few exceptions, your baby will NOT be covered under your surrogate’s health insurance policy. In the event your baby needs medical care after birth, these expenses can be extremely costly without proper insurance coverage.  

Understanding the practical requirements for surrogacy in the United States is equally important as understanding the legal requirements. 

Your Country’s Laws Matter Too

No matter which State your surrogate delivers in, your baby will be a United States citizen, and you will be able to get your baby a United States passport. This will allow you to travel with your baby back to your home country. However, in order for your baby to be recognized as a citizen in your homeland, you most likely will need to jump through some local legal hoops.  

Your surrogacy attorney in the United States should coordinate with your local attorney to ensure that all necessary documents are obtained promptly so you may apply for citizenship for your child and/or have your parentage rights recognized in your home country without delay.

An Ounce of Prevention is Worth a Pound of Cure: Engage Your Surrogacy Professionals Early

To avoid costly pitfalls, it is important to engage with your agency and legal counsel at the outset of your journey. A good agency (like Fairfax Surrogacy) will work with your legal counsel to ensure you have a suitable surrogate match and a solid legal plan. That way, your road to parentage will be as seamless and stress-free as possible, allowing you to relax and focus on the arrival of your new bundle of joy! 

Disclaimer. Please note that all information in this article is provided for general informational purposes only. No information contained in this post should be construed as legal advice nor is it intended to be a substitute for legal counsel on any subject matter.

Focusing on all aspects of Assisted Reproductive Technology (ART) law, founders of The Baby Lawyers, A Fertility Law Group, Lisa Brant and Lynn Levitan utilize their decades of experience to ensure their clients’ families are built on a strong legal foundation. The Baby Lawyers represents clients around the globe and holds licenses in California, Maryland, District of Columbia, Virginia, Texas and New York.