Most intended parents begin their surrogacy journey with a reasonable assumption: once the baby is born — conceived with their embryo, carried under a signed agreement — they are the legal parents. That assumption is wrong, and in some states, acting on it can have devastating consequences.
Under the Uniform Parentage Act, the default legal rule in the United States is that the woman who gives birth is presumed to be the mother. Genetics and signed contracts do not automatically override that presumption. Parental rights in surrogacy are not given — they are established through a deliberate legal process, and that process looks different depending on where you live.
At Fertility & Surrogacy Legal Group, APC (FSLG), we have guided intended parents through this legal process since 2012, across California, Colorado, Florida, Georgia, Oregon, Texas, Washington, and beyond. This article explains the legal landscape so you know what you are actually navigating — and what is at stake if the legal side is not handled correctly from the start.
Key Takeaways
- Parental rights in surrogacy are not automatic. Under US law, the woman who gives birth is presumed the legal mother — regardless of genetics or a signed contract.
- A surrogacy contract is essential but is not the legal endpoint. Parental rights are formally established through a court-issued parentage order, not the agreement alone.
- There are three legal pathways: a pre-birth order (the gold standard), a post-birth order, or a second-parent/stepparent adoption in states with restrictive law.
- State law governs everything. The US has no federal surrogacy law. Where the surrogate carries the pregnancy determines which pathway is available — and how much risk intended parents face.
- Gestational surrogacy offers a significantly cleaner legal path than traditional surrogacy. Most attorneys, including FSLG, advise against traditional surrogacy for this reason.
- The biggest mistake intended parents make is treating the surrogacy agreement as the finish line. The contract opens the legal process — the parentage order closes it.
- Engaging a surrogacy attorney before matching with a surrogate is the most reliable way to protect your parental rights from day one.
Why Parental Rights in Surrogacy Are Not Automatic
The core of surrogacy law rests on a concept called the birth-mother presumption. In the US, most states default to the rule that whoever gives birth is the legal mother — regardless of who provided the egg, who provided the sperm, or what a contract says. For intended parents, this means that at the moment of birth, state law may treat the surrogate as the legal mother unless a court order already names the intended parents.
A surrogacy contract does not transfer parental rights on its own. Even a carefully drafted, attorney-reviewed agreement is not enough by itself. What a contract does is establish documented intent, define each party’s rights and responsibilities, and provide the legal foundation for a court to issue a parentage order. The contract is essential. It is not, however, the endpoint.
What this means practically: in states where surrogacy law is well-developed, a court issues a parentage order — ideally before the birth — that legally names the intended parents on the birth certificate from day one.
In states with weaker surrogacy protections, intended parents can walk out of the hospital without appearing on the birth certificate, unable to make medical decisions for their own child, and waiting weeks or months for a court process to complete.
What Can Go Wrong: Real Legal Risks for Intended Parents
The most widely known surrogacy legal dispute in US history is the Baby M case. In 1985, a traditional surrogate who had signed a contract with the biological father decided to keep the child after birth.
When the case reached the New Jersey Supreme Court, the contract was found unenforceable — the court treated it as a paid adoption agreement, which violated state law. The intended parents ultimately received custody, but only after years of litigation and emotional harm to everyone involved, including the child.
Four Risks FSLG Attorneys See Today
The Baby M case is more than 40 years old. But the legal risks it exposed have not disappeared — they have simply evolved. The situations FSLG attorneys encounter today include:
- Proceeding with a surrogate without a fully executed gestational surrogacy agreement. Without a valid contract, there is no legal basis for a parentage petition. Courts resolve parental rights by weighing each party’s word.
- Working with a surrogate who lives in a state that does not recognise or enforce surrogacy contracts. A contract signed in California but involving a surrogate in a prohibitive state may not protect the intended parents’ rights in that state.
- Missing the filing window for a pre-birth order. In states where pre-birth orders are available, courts expect the filing during the second or third trimester. Missing that window means intended parents may not appear on the birth certificate from day one — adding time, cost, and uncertainty.
- Assuming a biological connection guarantees parental rights. Even when one or both intended parents are the biological parents, a court must still formally establish legal parentage in most states. Biology is evidence, not a legal conclusion.
The common thread in all of these situations is the same: parental rights in surrogacy are not automatic, and the risks are highest when the legal foundation — a valid agreement and a timely parentage order — is absent or incomplete. See FSLG’s gestational surrogacy agreement overview for more on how a properly structured contract protects both parties from the start.
The Legal Framework: How the US Handles Surrogacy Parentage
Unlike many countries, the United States has no single federal law governing surrogacy. Parentage law is state law, and that means intended parents’ legal rights depend heavily on where the surrogate lives and carries the pregnancy, not just where the intended parents live.
Why No Two States Are the Same
The Uniform Parentage Act (UPA) is a legal framework developed by the Uniform Law Commission. Many states have adopted some version of it. The UPA addresses how parentage is established in assisted reproduction cases, including gestational surrogacy. However, states adopt, modify, and update the UPA on their own timelines — meaning two neighbouring states can have meaningfully different rules for the same surrogacy arrangement.
At a broad level, US states fall into three categories:
It is also important to understand that ‘surrogacy-friendly’ refers to the legal environment for intended parents — not a comment on how the surrogate is treated. Well-drafted surrogacy agreements in friendly states protect both parties’ rights clearly and fairly.
For a full state-by-state breakdown of where surrogacy is legally supported, legally risky, or prohibited, see FSLG’s 2026 guide to surrogacy legality across the US.
The Three Legal Pathways to Securing Parental Rights
Regardless of which state your surrogacy takes place in, securing parental rights involves one of three legal pathways. The right pathway depends on the state, the type of surrogacy, and the specific circumstances of the intended parents.
A court order issued during pregnancy — typically in the second or third trimester — that legally establishes the intended parents before birth. When granted, intended parents are on the birth certificate from the moment the child is born, with no waiting period. Available in California and other surrogacy-friendly states.
Does the Type of Surrogacy Affect Your Parental Rights?
Yes — significantly. There are two types of surrogacy, and they create fundamentally different legal situations for intended parents.
In gestational surrogacy, the surrogate has no genetic relationship to the child. The embryo is created from the intended parents’ eggs and sperm (or donor material) and transferred to the surrogate’s uterus. Because the surrogate has no genetic connection, the legal path to establishing parental rights — while still requiring a formal court process — is considerably more straightforward. The vast majority of surrogacy arrangements today are gestational.
In traditional surrogacy, the surrogate uses her own egg, making her the biological mother of the child. From a parental rights perspective, this is a fundamentally different and higher-risk arrangement. The surrogate has both a gestational and genetic connection to the child. This gives her a stronger legal claim under many states’ parentage laws. Most surrogacy attorneys — including FSLG — advise strongly against traditional surrogacy for this reason: the intended parents’ parental rights are harder to protect and easier to challenge.
For a full comparison of gestational and traditional surrogacy across medical, practical, and legal dimensions, see FSLG’s gestational carrier vs. traditional surrogate guide.
How FSLG Protects Your Parental Rights
FSLG is a surrogacy law firm — not an agency, not a matching service. Our role is specifically legal, and it covers the entire surrogacy journey, not just the contract-signing moment.
For intended parents, that means we:
- Draft and negotiate the gestational surrogacy agreement, with independent legal counsel arranged for the surrogate as required by law in California and other states
- File the parentage petition at the appropriate time in the pregnancy (or post-birth, depending on state law)
- Coordinate with the hospital to ensure the birth certificate reflects the court order correctly
- Handle vital records, ensuring the intended parents are properly recorded on all legal documents
- Advise on state-specific risks when a surrogacy arrangement crosses state lines — because the legal exposure in a California-based arrangement with a Georgia surrogate is different from an entirely in-state arrangement
- Support same-sex and LGBTQ+ intended parents with the specific parentage strategies that apply to their situation — see our LGBTQ+ surrogacy resources and California surrogacy law overview
Across more than a decade of representing intended parents, we see one mistake more than any other: treating the surrogacy agreement as the finish line. The agreement opens the legal process — the parentage order closes it. Both matter, and both need to be done right.
Frequently Asked Questions: Parental Rights in Surrogacy
No. In most US states, the law presumes that the woman who gives birth is the legal mother. A court must formally establish legal parentage through a court order — either a pre-birth order during the pregnancy or a post-birth order after delivery. A surrogacy contract is essential to this process, but it does not transfer parental rights on its own.
In a properly structured gestational surrogacy arrangement — with a valid agreement and a parentage order in place — no. The court order names the intended parents before or shortly after birth. The surrogate has no legal basis to claim parental rights. This risk arises in traditional surrogacy, in arrangements without a valid contract, or in states that refuse to recognise surrogacy agreements. It is exactly why working with an experienced surrogacy attorney from the start matters.
No. A surrogacy contract does not transfer parental rights on its own. It documents intent, protects both parties, and gives the court the foundation to issue a parentage order. A court order — not a private agreement — is what legally makes someone a parent. Think of the contract as the prerequisite and the parentage order as the finish line.
The Uniform Parentage Act (UPA) is a model law the Uniform Law Commission developed to guide how courts determine legal parentage in assisted reproduction cases. Many states have adopted some version of it — but each state modifies it, adopts older versions, or skips it entirely. That inconsistency drives the wide variation in how states handle surrogacy parentage. A surrogacy attorney’s first job is to assess which version of the UPA (if any) applies in the relevant state.
Because the US has no federal surrogacy law. Each state controls its own parentage and family law. Some states have passed comprehensive surrogacy statutes. Others rely on court precedent. A small number actively restrict or prohibit surrogacy. The state where the surrogate carries the pregnancy is the legally relevant jurisdiction — not necessarily where the intended parents live. This is one of the most important things to clarify before matching with a surrogate.
A surrogacy-friendly state enforces surrogacy contracts and allows courts to issue pre-birth orders — so the intended parents appear on the birth certificate from day one. California, Colorado, Oregon, and Washington are among the strongest examples. At the other end, states like Louisiana, Nebraska, and Indiana treat surrogacy contracts as void or unenforceable. Michigan was the most cited hostile state for decades, but it legalised compensated surrogacy in April 2025 under the Michigan Family Protection Act. It now sits in a developing middle tier. Surrogacy law moves quickly, which is one more reason to work with a current, specialist attorney.
Treating the surrogacy agreement as the end of the legal process. The contract is essential — it protects both parties and enables the parentage petition. But a court order, not a contract, is what legally establishes parental rights. Intended parents who skip or delay the parentage order process can find themselves locked out of the birth certificate, unable to make medical decisions for their child, or facing a costly dispute to establish rights they assumed they already had.
Before matching with a surrogate — ideally before starting the process at all. An attorney identifies state-specific risks early, confirms what a sound surrogacy agreement must include, and maps the parentage order timeline. Waiting until after a match limits your options. Waiting until after problems arise can leave intended parents in a very difficult position.
The process follows the same core steps — a court issues a parentage order — but the strategy depends on each parent’s genetic relationship to the child and the state’s law. Some states require a second-parent adoption for a non-biological intended parent in a same-sex couple, in addition to or instead of a parentage order. FSLG has extensive experience guiding LGBTQ+ intended parents through the specific pathways that apply to their situation. See our surrogacy for gay couples guide for a detailed overview.
Agencies match, coordinate, and support — but they cannot give legal advice, draft enforceable agreements, or appear in court. Only a licensed attorney can do those things. The legal steps that actually protect intended parents — the surrogacy agreement, the parentage petition, the court order — all require an attorney. FSLG practises exclusively in surrogacy and fertility law. Every case our attorneys handle leads to the same three outcomes: a valid agreement, a timely parentage order, and a birth certificate that reflects your rights from day one.
Ready to Protect Your Parental Rights?
FSLG has been helping intended parents establish secure legal parentage since 2012. Whether you are just starting your surrogacy journey or already matched with a surrogate, the right time to speak with a surrogacy attorney is now — not after problems arise.
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Rich Geisler is the principal and founder of Fertility & Surrogacy Legal Group, leveraging over a decade of expertise in fertility and third-party reproduction law to help clients worldwide build their families. A dedicated advocate and trusted advisor, Rich is an active member of the American Bar Association and a fellow in the Academy of Adoption and Assisted Reproduction Attorneys.
