Surrogacy Legal Process

Is Surrogacy Legal? Understanding the Surrogacy Legal Process

It’s a question we hear frequently: “Is surrogacy legal in D.C., Maryland or Virginia?”

The answer in most cases is yes — as long as you work closely with an experienced ART attorney throughout the necessary surrogacy legal process. The Family Formation Law Offices work with intended parents within the U.S. who want to grow their family through surrogacy, adoption, or egg, sperm or embryo donation. Jennifer and Catelyn are the most experienced professionals in Maryland, Virginia and the District of Columbia at representing and protecting families who choose this path to parenthood.

The following legal services are some of what we provide for intended parents pursuing surrogacy, but the legal issues of surrogacy will vary depending on the type of surrogacy you’re interested in, where you live and other factors. Contact us now to book a legal consultation and learn more about how we can help you in your surrogacy journey, or read on for more general information about the legal issues in surrogacy in MD, VA and D.C.

Finding a Surrogate

While we do not provide matching services for intended parents and surrogates, we can provide advice and guidance in how to advertise and search for partners in your surrogacy journey. We can help you learn how to vet a potential surrogate if you choose to search for one independently, and counsel you through any legal issues with surrogacy until you find the surrogate you feel is right.

Contracts for Surrogates and Intended Parents

The contracts prepared for surrogates and intended parents will outline each party’s rights, obligations, intentions and expectations. Specifically, the agreement will address parental rights, custody, choice of hospital for delivery, post-birth contact between the parties, and health insurance. The legal surrogacy agreement will also cover who makes medical decisions and how those decisions will be made during a pregnancy, payment of medical bills, liability for medical complications, financial considerations such as the gestational carrier/surrogate’s compensation and expenses including lost wages, legal fees, child care, housekeeping, and maternity clothes, coverage for life insurance, the need to provide medical history and personal medical information, continued contact through the process, and intended parents’ presence during doctor visits and the delivery.

We will be your advocate in this rapidly developing area of the law to enable you to better understand the relevant factors and make the complicated decisions that will arise throughout the process. As part of the process, if you request, we will work with the staff at the hospital at which the Gestational Surrogate is to deliver to ensure a smooth process.

It’s important that each party is represented by their own separate attorney during the surrogacy contract drafting and negotiation stage, as well as throughout the surrogacy process, because each party will have their own interests that need to be appropriately represented and defended. If both the surrogate and the intended parents are represented by the same attorney, there will be a conflict of interests.

The surrogacy contract should be completed after a match is found, but before any medical processes begin so that everyone, including the potential child, is legally protected prior to attempting a pregnancy.

Pre-Birth Orders

In some states, a woman is considered to be the legal parent of the child she’s carrying, even if she has no biological tie to that child. In these instances, we complete a pre-birth order, which transfers the legal parental rights from the surrogate to the intended parents upon delivery, so your baby will be discharged to you and your legal parentage is protected.

Pre-birth orders are allowed in both Maryland and Washington, D.C. However, in Virginia, a pre-birth order for surrogacy is illegal, so post-birth surrogacy legal steps will be taken to protect your parental rights.

To obtain a pre-birth order, we will file the necessary legal documents with the court, usually during your surrogate’s second trimester. We will also coordinate any legal surrogacy processes or paperwork that need to be completed after your baby is born.

Post-Surrogacy Adoptions or Other Post-Birth Parentage Protections

In some situations, post-birth legal surrogacy measures will need to be made.

For example, in Virginia, an adoption will be required after the delivery if one of you is not biologically related to your baby and you’re an opposite-sex couple, or an adoption will be required if you’re a same-sex couple because Virginia statutes regarding intended parents specify “male and female.”

We will work with you to devise a legal strategy that best fits your needs, such as preparing a Petition for Declaration of Parentage, requesting a court order recognizing your rights as the legal parents and terminating any presumed parental rights of the Gestational Surrogate as allowed by the jurisdiction where the Gestational Carrier delivers the child.

How Your State’s Surrogacy Laws Affect You

When first considering their family-building options, many people worry, “Where is surrogacy legal?” They hear the media frenzy over surrogacy restrictions and arguments regarding the legality of surrogacy within the world, and they assume that the legal implications of surrogacy are too strict to pursue it as a practical way to grow their family.

But not only is surrogacy legal in Virginia, Maryland and the District of Columbia, we have the most experience helping families to grow through surrogacy within the region. It’s important to work with trusted attorneys who are familiar with your state’s legal issues in surrogacy.

Contact us now to learn about how your states laws will affect your legal surrogacy process, and how we can help you navigate your state’s surrogacy laws so that you can become a family legally and safely.

“I believe in working with each of my clients—in support of their family dynamic—to make the dreams of parenthood a reality. Whether you are single or married; or gay; a step-parent, a surrogate or intended parent or a child of adoption, it is my mission to serve as your advocate. With a dedication to the ethical and sensitive nature of each situation, I will help you understand the laws within Maryland or Washington, DC for adoption or surrogacy, and pledge to be your partner throughout the journey.” - Jennifer Fairfax

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