Surrogacy: Whose Name Goes on the Birth Certificate?

Parentage is one of the most common issues that surrogates and intended parents must face when it comes to surrogacy. What often complicates matters is that many laws across states covering surrogacy and parentage differ. In states where surrogacy parentage laws are in place, they can also be vague.

Becoming a parent through surrogacy can have different legal processes depending on what kind of surrogacy has taken place or what state you’re in. Some states may have laws for the transfer of parentage to the surrogate parents after birth that covers both traditional and gestational surrogacy, whereas other states may require both the transfer of parentage to intended parents in gestational surrogacy while requiring the same to undergo adoption processes in traditional surrogacy.

Traditional Surrogacy

Traditional surrogacy involves a carrier who is also the genetic birth mother of the child. This is the reason why in traditional surrogacy, official birth records may reflect the biological mother as the mother of the child and the intended father as the biological father if his sperm was used. In cases like these, couples and the surrogate go through the process of termination of parental rights and stepparent adoption on the part of the non-biological parent so that the intended parents can obtain parental rights.

Traditional surrogacy comes with a few legal risks that are not present in gestational surrogacy. For one, because the surrogate is also the biological mother, giving up the baby once it is born may become too difficult and she may challenge the surrogacy arrangement in court.

Gestational Surrogacy

In this type of surrogacy, the surrogate or the gestational carrier is not related to the baby she is carrying. In most cases, in vitro fertilization using eggs and sperm of the intended parents is done before the fertilized egg is injected into the carrier. This makes it easier to determine the intended parents as the legal parents.

Some states require hospitals to issue a pre-birth order establishing the parentage of the intended parents, even before the child is born. In states like Florida, hospitals issue an initial birth certificate application which lists the surrogate as the child’s mother. This form includes the name of the intended parents. Once the child is born, the intended parents need to request the court for a Final Order Affirming Parental Status, requesting that the child’s birth certificate be amended to reflect the intended parent’s parentage. Once this order is entered, the court will direct the state records office to change the birth certificate so that it reflects the intended parents as the mother and father of the child. In some states, this order also deletes all information regarding the surrogate.

Making the Process Streamlined

Surrogacy, whether it’s traditional or gestational, comes with legal implications that include parental rights before and after birth. It is important to know what legal nuances surround this process in your state. You can improve your chances of going through a smooth surrogacy experience if you work with lawyers who specialize in the surrogacy laws of your state. By doing so, you and the surrogate can have a clear picture of your rights and legal expectations and avoid messy and potentially protracted legal battles down the road.