Other aspects to consider when using a donor or surrogate

Content Legal aspects to consider when using a donor or surrogate

There are many considerations to think about when using third-party assistance, such as a donor or surrogate, to achieve parenthood. Laws can vary from state to state or may not exist at all. Understanding the law in the area in which you live, for your chosen option, is important.

Donor eggs

Unlike sperm donation, most state laws do not address egg donation. Similar to sperm donors, anonymous egg donors have fewer legal issues. Still, a legal contract is a good idea to protect both the egg donor and the intended parents. 

In the egg donation process, egg donors can be anonymous, semi-known (first name and region of residence), or known. In all cases, the parental rights of the egg donor are relinquished by contract, although known donor cases may allow for some involvement in the child’s life. A well-crafted legal contract with independent legal review for all parties is recommended.

Donor embryos

Legal issues around donor embryos can be complex. There are few state or federal laws for donor embryos. Legal agreements should be put in place to protect the donors, the intended parents, and the clinic. There are many aspects that should be considered:

  • Relinquishing parental rights of donors
  • Relinquishing inheritance rights of the child to the donors
  • Future contact (if any) of the donors with the child
  • Rights of the child to communicate with siblings in other families
  • Medical updates of the donors that may impact the child
  • Disposition of unused embryos
  • Parties’ obligation and rights toward one another

Do not assume everything is covered by the clinic’s contract. An independent legal review is an important step for both donors and intended parents.

Donor sperm

The laws about artificial insemination using donor sperm vary from state to state. In nearly half of US states, the Uniform Parentage Act gives legal parental rights to a husband who consents to the artificial insemination of his wife by a physician. No parental rights are given to the sperm donor.

The law can become more complex when a known donor is used rather than an anonymous donor. Court cases have been heard for issues around involvement in the child’s life and financial support. If you are using a known donor, have a legal document drafted to spell out each party’s rights and obligations.

Surrogacy

It’s important to understand your state’s surrogacy laws before proceeding. There are two types of surrogacy contracts:

  • Commercial surrogacy contract
    This contract allows for financial compensation of the surrogate.
  • Compassionate surrogacy agreement
    The surrogate is not compensated, but medical costs and legal fees are covered.

In some states, a commercial surrogacy contract is not legally valid—meaning the parental rights of the intended parents are not recognized. LGBTQ couples, in some states, may have additional steps to be legally recognized as the parents of their child.

A lawyer can help you understand the laws in your state regarding your specific union or partnership. Using a surrogacy agency or a reproductive law agency can also help guide you through this complex process, which may require: 

  • Legal contracts
  • Financial compensation
  • Escrow accounts
  • Insurance reviews
  • Court orders to declare parentage 

If one intended parent is the genetic parent of the child while the other intended parent is not, you may want to consult with a lawyer about legal parental rights for both intended parents. 

More information about surrogacy laws is available at Surrogate.com.

Surrogacy laws vary by state

Before you begin, confirm surrogacy is possible in your area and determine which laws will apply to your situation.