Why Is Surrogacy Law So Confusing?

If you’re confused by the legal issues surrounding surrogacy in the US, take heart – you’re not alone. The first thing to understand is that there is no federal law governing surrogacy. That means it’s up to each state to decide how to handle surrogacy, and almost all have them have chosen a slightly unique approach.

From a high level, you should know that 47 US states recognize gestational surrogacy, and women from those states can apply to become a surrogate with Medipocket Surrogacy. There are 3 US states that do not recognize gestational surrogacy, and surrogacy contracts are “illegal” in those states (women who live in Nebraska, Michigan and Louisiana are not able to apply to become surrogates at this time).

If you’re an intended parent, you can become a parent no matter where you live. The laws in the state where your surrogate lives – and will give birth – are the surrogacy laws that matter. Intended parents can live in any US state – or internationally – and will follow the laws on the state where their surrogate resides.


Medipocket Surrogacy has been helping the LGBTQIA+ community become parents for 25 years. We bring an immense amount of experience to surrogacy, which by nature is a very complicated process.

A tremendous amount of coordination and planning goes into a surrogacy journey, as well as legal contracts. A surrogacy agency works with intended parents each and every day. Your agency is the surrogacy expert so you don’t have to be.

Here are 3 things you should look for in an agency as a parent-to-be:

1. Ability to protect your rights. Medipocket Surrogacy’s accomplished legal team helps confirm that your parental rights are affirmed and safeguarded. Whether you obtain a second-parent adoption, judgment of paternity/maternity or custody orders, we’re here to help you become a parent and find solutions that protect your family.

2. Experience working with LGBTQ+ individuals. Medipocket was founded by a lawyer and gay dad through surrogacy. Our legal staff is experienced in the legal rights of the LGBTQIA+ community and stay educated as the laws change. Each state and country has specific laws and regulations for LGBTQIA+ IPs. Working with an agency that has this level of expertise in both social work and law helps to ensure a positive and successful journey for IPs.

3. Partnership and support throughout the entirety of your journey. Larger surrogacy agencies such as Medipocket, are able to provide intended parents full-service support throughout their journey. Medipocket employs accountants, program managers, lawyers and social workers all under one roof, which allows intended parents to have their journeys managed by one team at one agency, eliminating the need for third parties.

What Are the Major Legal Issues of Surrogacy?

The next important thing to understand is that ‘surrogacy law’ doesn’t just mean one statute or code. There are actually several different issues at play here. Let’s break down the complexity by looking at a few major pieces.

1. The Surrogacy Agreement
Your surrogacy agreement (or contract) is the foundation of your journey. Every surrogacy contract is unique, and there’s endless variety in how they’re developed and negotiated. But one thing everyone agrees upon is that you shouldn’t go it alone. Rather than trying to develop your own contract (which will almost surely lead to confusion and conflict), work with an established surrogacy program like Medipocket. Our on-staff experts and legal counsel will ensure that everyone’s rights are protected – or refer you to the right surrogacy lawyer – so you can rest easy and focus on your journey.

So what exactly does a surrogacy agreement do? To put it simply, it says what all your major rights and responsibilities are during the surrogacy process. That includes…

– Surrogate compensation: How much will the surrogate mother be paid? Which expenses will be covered? What additional compensation will she receive for special circumstances like undergoing invasive procedures or taking bedrest?

– Health and safety: What are the surrogate mother’s responsibilities during pregnancy? How will she take care of herself and the developing child?

– Risks and liability issues: What happens if something goes wrong? Who’s responsible and what are their obligations?

– What if…?: There are endless ‘what-if’ situations that both the intended parents and the gestational carrier should consider beforehand. A well-written surrogacy agreement will help you do just that.

Different states have radically different ways of handling surrogacy contracts.

2. The Pre-Birth Order
Another major piece of surrogacy law is called the pre-birth order. This is simply a legal document which transfers parental rights to the intended parent when the child is born.

Typically, a pre-birth order is filed with the court anywhere from 4 to 7 months into the surrogate pregnancy. Different states have different requirements, but generally speaking, you’ll need to include a document from the physician affirming that they performed an embryo transfer from the biological mother to the gestational surrogate. You’ll likely also need a statement from the surrogate family confirming that they are giving up all legal rights to raise and parent the child.

Surrogacy-friendly states make it simple to file and receive your pre-birth order. Other states require intended parents to wait until after birth to establish legal parental rights. The legal maneuver is roughly similar in these states, but you may have to wait 3-5 days to file your post-birth order – and possibly appear in court with an attorney.

3. Adoption & Second Parent Adoption
In some situations, the intended parents will also need to complete a formal adoption process to fully establish their parental rights.

If neither of the intended parents have a biological relationship with the child, then they’ll fully adopt the child. On the other hand, if the embryo was formed using genetic material from one of the intended parents, then that parent already has full parental rights, and formal adoption is only necessary for the other parent. This is called second parent adoption.

Again, different states have very different laws governing the adoption process. More surrogacy-friendly states will make this process easier, while others specifically discourage it.