Having a child is one of the most fulfilling experiences in the world—and not being able to is one of the most crushing. But these days, there are more ways than ever to have a child, including both adoption and surrogacy. If you are a family looking into surrogacy, there is a lot to think about and do research on. One of the most important things you can do is make sure that you are aware of your rights as the intended parent, the rights of the surrogate, and the rights of the child themselves. Knowing even just the generals about where everyone stands will help you a lot if something undesirable should happen.


What Counts as Surrogacy?

If you’re just beginning to explore the surrogacy world, you may wonder what exactly surrogacy is outside of a third party carrying a child to term for the intended parents. There are actually multiple types of surrogacy, each one with its own nuances, challenges, and rewards.


“Surrogate” is the umbrella term for all of these situations, as it refers to the woman that carrying the child, regardless of how the process happened. There are four common types of surrogacy used in the United States, two types refer to the genetic material that is used to create the child, and two types refer to payment of carrying the child to full term. In the first case of genetic material, both parents choose to use their genetic material, and use the surrogate as a carrier, this is called full surrogacy or gestational surrogacy. The second type of genetic material available in surrogacy is using the genetics from the surrogate herself, this is commonly used by couples that cannot produce fertile eggs or have other medical conditions, this is referred to as a traditional surrogacy, or a partial surrogacy. In reference to payment types for this work, there are two types that are normally available. Commercial surrogacy or compensated surrogacy means that the surrogate is paid for services rendered and for any expenses they may incur during the pregnancy. In contrast, altruistic surrogacy or uncompensated surrogacy refers to a surrogate that is giving of a child without payment, and normally only some of their expenses are covered by the intended parents. Finally, as a quick note, there are those people who seek surrogacy outside of the United States for payment, and this is called international commercial surrogacy, or reproductive tourism.[1]

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Where is Surrogacy Legal?

It may come as a surprise to those exploring the surrogacy options available to them, but surrogacy is not legal in every state. As an intended parent you have more freedom than those who are looking to become a surrogate, but even your options are still somewhat limited. For now, the important thing is that compensated surrogacy is illegal in Nebraska, Louisiana, and Michigan. Only this year (2021) has New York become more surrogacy friendly.[2]


General Legalities to Keep in Mind

Here is a list of legalities that will keep you on the right track for your situation. For more detailed information, make sure you look at your specific state laws regarding surrogacy for both the surrogate and yourself (as the intended parents). Child custody rights are a very common area of family law, so knowing some child rights is important here, too.


  • The right of the child, should the parents separate during gestation:
    • The rights of the child and the entitlements to the child are still continued even if the parents are separated during the gestation. Depending on the type of surrogacy that was done the child will become the legal responsibility of either both parents, or of the surrogate and the father.[3]


  • The right of the surrogate for payment:
    • There are, of course, a large amount of variation for these rights depending on what state you are in. Most surrogates are entitled to a base compensation, and all of their particular expenses paid, including medical, legal, and travel. [4]
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  • The right of the surrogate, should the parents not come for the child after birth (due to back out, death, or no-show):
    • This is a case of still needing that important contract. However, as the surrogate, even if the parents do not collect the child, for whatever reason, that does not mean that the surrogate will keep the baby. Most times it is given for adoption.[5]


  • The right of the parent, should the surrogate want to back out:
    • The surrogate has particular rights to the child, at birth, and in specific states. However, as long as there is a surrogacy contract that was signed by all parties, they are not entitled to keeping the child after birth.[6]


  • The rights of the parent, and their surrogacy contract:
    • Surrogacy contracts work by enlisting both the intended parents and the surrogate into a legal bond. This protects both parties in case of malice, but it does more for parents in most cases. Always get one of these, no matter what.[7]


  • The right change if the parents opt for an egg donor:
    • In some states the use of an egg donor will change the rights of all of the parties involved. In this case there are situations where the intended parents may come into legal battles to have their names placed on the birth certificate.


As you can see, surrogacy is something that needs to be taken seriously. However, when everyone is on the same page, it can be one of the most fulfilling experiences any family could have.



[1] This paragraph is written as one instead of two, to make the citation easier to check. These terms were taken from pages 5 and 6 of Surrogacy Law and Policy in the U.S.: A National Conversation Informed by Global Lawmaking out of Columbia Law School in 2016: https://web.law.columbia.edu/sites/default/files/microsites/gender-sexuality/files/columbia_sexuality_and_gender_law_clinic_-_surrogacy_law_and_policy_report_-_june_2016.pdf

[2] https://www.creativefamilyconnections.com/us-surrogacy-law-map/

[3] https://www.bushtaylor.com/blog/2021/april/do-surrogate-mothers-have-parental-rights-/

[4] https://www.americansurrogacy.com/surrogate/how-much-do-surrogate-mothers-make

[5] https://www.buildingfamiliesinc.com/en/2011/10/if-the-intended-parents-dont-want-the-baby-will-i-be-left-with-him/

[6] https://blog.themarbleway.com/post/can-a-surrogate-mother-change-her-mind-and-keep-the-baby

[7] https://www.americansurrogacy.com/surrogacy/surrogacy-laws-in-the-united-states